Bruce v. Wolfe

• Decision Date: 09 November 1903
• Citation: Bruce v. Wolfe, 76 S.W. 723, 102 Mo. App. 384 (Kan. App. 1903)
• Parties: GEORGE W. BRUCE, Appellant, v. CHARLES WOLFE, Respondent
• Court: Kansas Court of Appeals

76 S.W. 723

102 Mo.App. 384

GEORGE W. BRUCE, Appellant, v. CHARLES WOLFE, Respondent

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Cass Circuit Court.--Hon. W. L. Jarrott, Judge.

AFFIRMED.

Case affirmed.

T. H Cloud and A. A. Whitsitt for appellant.

(1) One who incloses and holds land by an open, notorious adverse possession, against all the world for a period of ten years will obtain therein an indefeasible title in fee simple to the land so inclosed and possessed. Ekey v. Ingle, 87 Mo. 493; Sherwood v. Barker, 105 Mo. 477; Long v. Stock Yards Co., 107 Mo. 304; Stevens v Martin, 168 Mo. 407; Heinemann v. Bennett, 144 Mo. 113; Hunnewell v. Burchett, 152 Mo. 611. (2) A grant is presumed from long enjoyment. House v Montgomery, 19 Mo.App. 179; Secs. 900, 4262 and 4266, R. S. 1899; Heinemann v. Bennett, 144 Mo. 113; Goodson, Admx., v. Goodson, 140 Mo. 217; Allen v. Mansfield, 81 Mo. 693; Kirton v. Bull, 168 Mo. 623; Stevens v. Martin, 168 Mo. 407; McPike v. Allen, 53 Mo. 551; Prior v. Scott, 87 Mo. 303; Livingston Co. v. Morris, 71 Mo. 603; Davis v. Hess, 103 Mo. 36. (3) It is a rule of law, applicable to all cases alike, that whenever an act is to be done, and no time is fixed for doing it, the law implies that it shall be done within a reasonable time. State ex rel. v. Harrison, 53 Mo.App. 346; 2 Parsons on Contracts, secs. 661, 794; Lapsley v. Howard, 119 Mo. 489; Goodfrey v. Stock, 116 Mo. 403; Linville v. Welch, 29 Mo. 203. (4) Instruction 1, given for plaintiff, is error. (5) The first instruction asked and refused should have been given. The facts and evidence in this case, show plaintiff failed to make out a case.

R. T. Railey for respondent.

(1) Defendant admits that had it not been for the defect in the title heretofore mentioned, he and Purvis had agreed upon a trade or sale in every respect. He had delivered his deed from himself and wife, to Zick in escrow, to be turned over to Purvis when the latter was satisfied with the title, and Purvis authorized Zick to turn over the draft and note aforesaid. Zick was authorized to deliver the papers to the respective parties and close up the deal, if the title was found good. Here, then, was the land properly described, with deeds, etc., duly executed and complete within themselves, ready for delivery, if the title was found good. These should all be considered as one transaction, and show a complete contract between the parties. Christensen v. Wooley, 41 Mo.App. 56; Peycke v. Ahrens, 72 S.W. 151, and cases cited. (2) The court should, therefore, have directed a verdict for plaintiff, and as the contract fixes the amount, it should have directed a verdict for said plaintiff in the sum of $ 150, as the other items were waived at the trial. Fullerton v. Carpenter, 71 S.W. 99; Hynes' Ex. v. Brettelle, 70 Mo.App. 350; Phister v. Gove, 48 Mo.App. 458; Gerhart v. Peck, 42 Mo.App. 651; Christensen v. Wooley, 41 Mo.App. 60; Love v. Owens, 31 Mo.App. 510; Carpenter v. Rynders, 52 Mo. 279, (3) Wolfe knew, therefore, when he received this letter, that an abstract of title would be required. With knowledge of such fact, he took this letter to plaintiff at Pleasant Hill, and with the letter before them, had the contract drawn, describing the property, dated March 28, 1902.

OPINION

BROADDUS, J.

The plaintiff, who was a real estate agent, seeks to recover of the defendant $ 150 as commission for the sale of his farm, upon the following written contract ("Exhibit A."):

"FARM PROPERTY CONTRACT.

"I, Charles Wolfe, of Pleasant Hill, county of Cass, State of Missouri, have this day given Geo. W. Bruce the exclusive sale or transfer of the following described real estate, to-wit: The w 1-2 s. w. 1-4 and s. w. 1-4 of N.W. 1-4 section 35, and s. e. 1-4 n. e. 1-4 section 34, T. 46, R. 31, county of Cass, State of Missouri, which is owned by me. I hereby appoint and constitute said Geo. W. Bruce as my agent and authorize him to enter into a written contract for me, on my behalf and in my name, for the sale of said real estate. I agree to make a good, satisfactory deed, and if required to do so, to give a clear abstract of title to said real estate showing the title to be fully vested in me. In consideration of his services in making such sale, transfer, sending me a buyer, or being instrumental in any manner, whatever, in selling or transferring said property, I agree to pay said Geo. W. Bruce one hundred and fifty dollars, when sale is made, payable at his office. Should I wish to withdraw the above described property from market, or advance the price, I agree to give said agent written notice twenty days prior to such withdrawal or advance. I agree to pay said agent $ -- for advertising, should I withdraw said property from sale. Any change in the price or terms agreed to by me shall work no forfeiture in commission due said agent in case of sale or transfer of said property. Dated this 28th day of March, 1902.

(Signed) "CHARLES WOLFE."

The uncontradicted evidence was that the plaintiff sold the land of defendant to a Mr. Purvis, who lived in the State of Nebraska, at and for the price of $ 7,250, to be paid in the following manner: $ 5,250 in cash, $ 1,500 on credit, and $ 450 to be deducted as rent from defendant who was to occupy the land for one year after the sale, the purchaser to execute a note for the $ 1,500, for the payment of which he was to execute a deed of trust on the land. In furtherance of the sale, defendant and his wife made a deed conveying the land to said Purvis and deposited it with Joseph Zick, cashier of a Pleasant Hill bank in said Cass county, and Purvis made a note for $ 1,500 payable to the defendant and he and his wife executed a deed of trust on the land to secure the payment of the note, and deposited them also with said Zick together with $ 5,250 cash, or its equivalent. But said note, deed of trust and money were not to be delivered to defendant until he had furnished a clear abstract of title. The defendant on the trial denied that he was ever notified or requested to furnish such abstract; but there was evidence that it was required of him.

Plaintiff had an abstract made which was submitted to Purvis' legal adviser who objected to it because one of the deeds in defendant's chain of title failed to correctly describe the west half of the southwest quarter of section 35 township 46, range 31, of the land, but described it as the south quarter of said section, leaving out the word "west." This deed was dated December 18, 1846, and filed for record four days thereafter. When this discrepancy was shown in defendant's paper title he was permitted, over the objection of plaintiff's attorney, to prove such occupation as would vest the title to him under the statute of limitations. He also proved that he offered to give bond to indemnify said Purvis or take such other action as would correct the defect in his title. Mr. Purvis, upon the advice of his...