Burns v. Ames Realty Co.

• Decision Date: 04 December 1928
• Docket Number: No. 20414.,20414.
• Parties: BURNS v. AMES REALTY CO.
• Court: Missouri Court of Appeals

11 S.W.2d 71

BURNS v. AMES REALTY CO.

No. 20414.

St. Louis Court of Appeals. Missouri.

December 4, 1928.

Rehearing Denied December 18, 1928.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Robert A. Burns against the Ames Realty Company, a corporation. Judgment for defendant, and plaintiff appeals. Affirmed.

S. T. G. Smith and Gustave A. Stamm, both of St. Louis, for appellant.

T. M. Pierce and Samuel H. Liberman, both of St. Louis, for respondent.

BENNICK, C.

This action was instituted upon the filing by plaintiff, Robert A. Burns, of a petition, in which he alleged that defendant, Ames Realty Company, a corporation, by its general warranty deed of May 1, 1923, and in consideration of the sum of $110,000, paid to it by plaintiff, had conveyed to the latter certain real estate, consisting of 53 lots, situated in Ames Place, in St. Louis county, Mo.; that defendant, by its deed aforesaid, covenanted with plaintiff, his heirs and assigns, that plaintiff was seized of an indefeasible estate in fee simple in all of the various lands and parcels of real estate described in said deed; that there was a breach of defendant's covenant of seisin, in that, at the time of said conveyance, defendant was not seized of one of said lots, namely, lot No. 6, in block No. 1, the title to the same being vested in Thomas A. O'Reilly and Margaret B. O'Reilly, his wife; that, by reason thereof, plaintiff had been evicted; and that the amount of money exactly paid by plaintiff to defendant for said lot was $1,926.50, for which sum he prayed judgment with interest.

Defendant thereupon answered, averring that defendant, by its agents, had negotiated with plaintiff for the sale of only 52 unimproved lots; that the only property in Ames Place which plaintiff agreed to buy, and defendant to sell, was of an unimproved character; that lot No. 6, in block No. 1, was improved, and not unimproved, property; that, in arriving at the consideration to be paid defendant by plaintiff in the purchase of said unimproved lots, the amount thereof was based upon the sale by defendant, and the purchase by plaintiff, of only 52 unimproved lots; that in the deed executed to plaintiff by defendant, by a clerical error or inadvertence, and through mutual mistake of fact by the parties, lot No. 6, in block No. 1, was included; that through such error, inadvertence, and mistake, plaintiff had suffered no damage; that the deed so executed by defendant, and delivered to plaintiff, did not express the real contract and intention of the parties; that defendant had no adequate remedy at law; and that in equity and good conscience the deed ought to be reformed so as to exclude lot No. 6, in block No. 1, for which reformation defendant prayed, as well as for such other relief as to the court should seem meet and proper.

Upon the filing of the above answer, praying for equitable relief, the cause was transferred to an equity division of the circuit court, wherein plaintiff replied, alleging that, in the written contract of February 21, 1923, entered into between the parties, plaintiff had agreed to buy, and defendant to sell, a total of 53 lots, including lot No. 6, in block No. 1, for which said property plaintiff, as purchaser, had agreed to pay the sum of $110,000; and that lot No. 6, in block No. 1, was not included in the deed by a clerical error or inadvertence, or through a mutual mistake of fact by the parties, but that the deed, as executed, expressed the real contract and intention of the parties, in consequence of which it ought not be reformed.

A trial was had in due course, resulting in the rendition of a judgment and decree for defendant, and against plaintiff, on the cause of action alleged in plaintiff's petition, and for defendant, and against plaintiff, on the cause of action set forth in defendant's answer; that is, as to the reformation of the deed. An appeal was thereupon granted plaintiff to the Supreme Court, evidently upon the theory that title to real estate was involved; but that court concluded that it was without jurisdiction to hear and determine the cause, and ordered that the same be transferred here.

The evidence disclosed that early in 1923, negotiations for the sale of the property in Ames Place were entered into between the Mississippi Valley Trust Company, as agent for defendant, and the Bush-Burns Realty Company, to whose rights plaintiff succeeded by assignment, culminating in the making of a written contract of sale between the parties on February 21, 1923, in which was recited the payment by plaintiff of the sum of $2,500, as earnest money on the purchase of a certain parcel of unimproved property, including lot No. 6, in block No. 1. On May 1, 1923, the transaction was closed upon the execution of a general warranty deed by defendant to plaintiff, in which was included the same description of the property conveyed as had appeared in the contract of sale. There is no dispute, however, that, at the time of the execution of both the contract and the deed, lot No. 6, in block No. 1, was not owned by defendant, but had been conveyed by it in 1922 to O'Reilly and his wife, who had meanwhile erected a house upon the lot.

Plaintiff admitted that it was his intention to buy only unimproved property, but advanced the theory that the agreement between the parties contemplated the purchase by him of a total of 2,847 front feet, irrespective of the number of lots included therein, and that, upon the breach of defendant's covenant of seisin as to lot No. 6, in block No. 1, he became entitled to recover the amount paid by him for such lot, calculated upon the number of front feet it contained.

Defendant's evidence, to the contrary, and in brief, was to the effect that, at the commencement...