Bryant v. Kyner
| Decision Date | 14 July 1947 |
| Docket Number | 40193 |
| Parties | Florence Lowe Bryant, Appellant, v. Thomas A. Kyner and Erma M. Kyner |
| Court | Missouri Supreme Court |
Opinion Modified on Court's Own Motion September 8, 1947.
Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.
Affirmed and remanded.
Raymond E. Martin, Cowgill & Popham and Sam Mandell for appellant.
(1) The decree for specific performance vested title to all of the property involved in Mr. Kyner without the necessity of any deed from Mrs. Bryant. Macklin v. Allenberg, 100 Mo 337, 13 S.W. 350; State ex rel. Place v. Blane, 353 Mo. 639, 183 S.W.2d 878; Sec. 1255, R.S. 1939. (2) Since title to the lands involved had passed to Mr. Kyner under the decree and without the necessity of any deed from Mrs. Bryant, his directions to the Nichols Company to withhold moneys tendered by him on account of the purchase price and then due her, constituted a repudiation and breach of both the contract and decree, for which she is entitled to have the decree for specific performance set aside. Hannan v. Wilson, 100 N.J.Eq. 463, 136 A. 499; 50 C.J., Specific Performance, p. 174; 58 C.J., Specific Performance, sec. 632; 34 C.J., p. 459. (3) Mr. Kyner's directions to the Nichols Company with respect to the money in its hands constituted a fraud upon the court for which the decree for specific performance should be set aside. Cheney v. Wagner, 33 Neb. 310, 50 N.W. 13.
Roy Rucker for respondents.
(1) That portion of the decree which provided that the title should vest in Kyner did not annul or modify the obligation under the contract and decree upon plaintiff to execute a warranty deed. 21 C.J. 694; 30 C.J.S. 1014; McGinnes v. Brodrick, 192 S.W. 420; McPherson v. Kissee, 144 S.W. 410; Herryford v. Turner, 67 Mo. 296; Lanyon v. Chesney, 85 S.W. 568; Greffet v. Willman, 21 S.W. 495. (2) The provision in the decree that if plaintiff did not give a deed the title should vest, did not affect the plaintiff's obligation to give such deed. (3) Even if Kyner's position that he was entitled to a deed upon payment of the consideration were not justified, yet such demand would not be such a breach of Kyner's obligation under the contract and decree as to justify plaintiff in rescinding the contract and decree and terminating plaintiff's obligations thereunder. 13 C.J. 613; Electric Light Co. v. Radbourn, 56 Ill.App. 165; 17 C.J.S. 907; Croker v. Powell, 115 Fla. 733, 156 So. 126; Jones v. Peterson, 72 S.W.2d 76; Haydon v. Railroad, 93 S.W. 833, 121 S.W. 15.
The plaintiff appeals from an adverse decree in an equity suit brought by her in December, 1945, in the Jackson County circuit court, to annul her written contract for the sale of land to the defendant-respondent, Thomas A. Kyner, and to set aside a decree in his favor in a former suit requiring specific performance by appellant of that contract, which was affirmed by this court in April, 1945, in Kyner v. Bryant, 353 Mo. 1212, 187 S.W.2d 202. The respondent Erma M. Kyner is the wife of Thomas A. Kyner, and was joined as a defendant merely because of her marital rights. Hereafter we refer only to him when using the word "respondent".
In general, the grounds of appellant's instant suit are that after our mandate in the former suit went down, the respondent refused to abide by the decree therein in his favor, and stopped payment of a part of the purchase money due appellant under the contract in issue. The respondent contends it was the appellant who disobeyed the decree in the former suit, by refusing to execute a warranty deed on the pretext that the land description in the decree was deficient. He maintains that he acted within his rights; and that the stakeholder of the purchase money, not himself, was the one who withheld the unpaid portion thereof.
In greater detail, the facts are as follows. The written contract recited that the appellant agreed to sell the respondent a farm in Jackson County "containing 220 acres, more or less" for a cash consideration of $ 40,000, of which $ 2,000 was deposited in escrow by the purchaser with the J.C. Nichols Investment Company when the contract was signed, the remaining $ 38,000 to be paid in cash "on delivery of deed [1] as herein provided." In a subsequent paragraph the contract stipulated: "If the seller (the appellant) has a merchantable fee simple title to said property, the seller shall deliver to the buyer (the respondent) at the office of said J.C. Nichols Investment Company a General Warranty Deed, properly executed and conveying said property free and clear of all liens and encumbrances whatsoever (with specified exceptions); the buyer shall then and there pay the balance, if any, of said cash payment, . . ."
It appears from the opinion in the former specific performance suit, supra, that the contract was modified by the parties and the respondent was permitted to negotiate with a Keystone Company a mortgage loan on the farm for $ 20,000, one-half the purchase price, and to pay that much of the consideration out of the loan. At any rate appellant cooperated in the negotiation of that loan, and it was consummated, $ 18,000 of the borrowed $ 20,000 being deposited with the J.C. Nichols Investment Company along with the $ 2,000 it already held in escrow, leaving $ 20,000 in cash to be paid by respondent when the transaction was closed. In the negotiations for the $ 20,000 loan the Keystone Company made same objections to the title which were satisfied by appellant, the respondent waiving objections to the extension of time for doing this. Also, in December, 1943, the appellant permitted respondent's employees to enter upon the farm and make improvements. But in January, 1944, appellant refused to carry out the sale contract, and respondent brought the specific performance suit and obtained the decree mentioned in the first paragraph hereof, which was dated June 24, 1944.
That decree adjudged that respondent here have specific performance of the contract of sale, describing the land as it was described in the contract; that he pay into the registry of the court within five days, the sum of $ 20,000, being the balance of the $ 40,000 purchase price (above the $ 20,000 held by the Nichols Company); and that the appellant here "deposit with the clerk of (the) court her warranty deed to Thomas A. Kyner, to the real estate hereinabove described within ten (10) days from the date of this judgment," along with the abstracts of title. After two intervening short paragraphs the decree further provided: "It is further ordered, adjudged and decreed that if defendant (appellant here) . . . fail to deposit with the clerk of (the) court within ten (10) days from the date of this judgment her warranty deed to the real estate hereinabove described, then the title to and the right of possession . . . shall vest absolutely and in fee simple to plaintiff, Thomas A. Kyner."
The land description in both the sale contract and the specific performance decree was the same. It began: "Part of the North 1188 feet of the northeast 1/4 of the Northwest 1/4, Section 24, Township 48, Range 33, being 21.6 acres." Next included, by proper governmental description, were 158 acres of other land in the same section, all followed by the words "the above lying east of the railroad tracks and east of the Knight addition." Next and last was a 39.82 acre tract in another section -- all adding up to 219.42 acres.
The specific performance decree in that case further allowed the plaintiff (respondent here) judgment over against the defendant (appellant here) in the sum of $ 673.26, out of the $ 20,000 he had paid into court or had held available for payment on the purchase price, this representing interest on that sum during the time the defendant had delayed consummation of the sale transaction by her resistance to the specific performance suit, and ordered the balance of $ 19,326.74 to be paid to the defendant. The defendant (appellant here) promptly appealed to this court.
After our mandate in that suit went down counsel for the defendant (appellant here), although contending appellant had become reconciled to her defeat, nevertheless wrote counsel for plaintiff (respondent here), on May 16, 1945, stating they were trying to locate the abstracts of title, and that the defendant would execute a warranty deed to all of the land included in the contract and specific performance decree except the first item in the description, namely, "Part of the North 1188 feet of the northeast 1/4 of the northwest 1/4, Section 24, Township 48, Range 33, being 21.6 acres." Concerning that item the letter said, in substance, that it failed to show what if any land was intended to be conveyed thereunder, and that it was counsel's opinion the appellant was not obligated by the specific performance decree to convey any land lying within that description.
Thereupon counsel for respondent on May 21, 1945, wrote the J.C. Nichols Investment Co., which held the remaining $ 20,000 of the consideration money, notifying that company as broker and stakeholder, that they (respondent's counsel) contended the specific performance decree primarily required appellant to execute to respondent a warranty deed describing the farm in such manner as would make a binding conveyance under the terms of the contract, and that the requirements with respect to the payment of taxes should be observed. In that letter they notified the Nichols Company not to pay out any of the money in their hands until there had been a binding conveyance.
Two days later, on May 23, 1945, counsel for respondent also answered the above letter of May 16 which appellant's counsel had sent them, and demanded that appellant execute a warranty deed to responden...
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