Campbell v. Richards
| Decision Date | 03 January 1944 |
| Docket Number | 38690 |
| Parties | G. S. Campbell and Z. F. Campbell, Appellants, v. L. A. Richards, Jr., and F. L. Steel |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court; Hon. J. C. McDowell Judge.
Affirmed.
R F. Baynes for appellants.
(1) Suit for specific performance of contract to require the conveyance of land under contract of sale is a proper remedy. Rice v. Griffith, 161 S.W.2d 220. (2) It was the place of appellants to say what they would accept as a marketable title and not for respondents to say. Wieman v. Steffen, 172 S.W. 472. (3) If the vendee is willing to take vendor's defective title (if defective) without asking for an abatement in the purchase price, presumably relying upon possession and the covenants for title in his deed, the vendor will not be permitted to set up his defective title or insufficient estate as a defense to an action for the specific performance of his contract. 10 L.R.A. (N.S.) footnote at bottom of page 121; 66 C.J., secs 554, 583, 645, and 1582; 27 R.C.L., sec. 243; Davis v. Real Estate Co., 115 Mo.App. 327; Minor v. Edwards, 12 Mo. 137; Barger v. Healy, 207 S.W. 499; State v. Trimble, 298 S.W. 782.
Henry C. Riley for respondents.
(1) The petition fails to state facts sufficient to grant appellants the relief sought. Jewell Realty Co. v. Dierks, 18 S.W.2d 1043; Sonken-Galamba Corp. v. Mo. Pac. Ry. Co., 40 S.W.2d 524. (2) Under the facts appellants are not entitled to any equitable relief in this case. Hildick v. Nothstine, 289 S.W. 939. (3) The contract was discharged when under its terms the respondents were unable to perform. Nordyke v. Kehlor, 155 Mo. 643; Riley-Wilson Gro. Co. v. Canning Co., 129 Mo.App. 325; 3 Elliott on Contracts (1st Ed.), p. 37. (4) That appellants could not waive respondents' rights under the contract. Crews v. Lombard, 216 S.W. 512; Schmit v. Charter Oak Life Ins. Co., 2 Mo.App. 339. (5) The court will not make contracts for the parties. Baldwin v. Corcoran, 7 S.W.2d 967; Mo. Portland Cement Co. v. Dulaney, 300 S.W. 544; Dougherty v. Mutual Life Ins. Co., 44 S.W.2d 206; Ransford v. Natl. Pro. Ins. Co., 16 S.W.2d 663.
This is a suit for specific performance to compel respondents to convey to appellants 160 acres of land situated in New Madrid County, Missouri.
The contract for the conveyance of the land in question was dated December 3, 1940, and later modified April 28, 1941. The terms of the contract, as modified, provided that upon the payment by appellants to respondents of $ 9,600, payable as follows: $ 1,300 in cash, a $ 200 note due December 1, 1941, and the balance of $ 8,100 to be paid on or before December 31, 1941, the respondents would convey by warranty deed the 160 acres of land to appellants. The contract further provided that, "If on December 31, 1941, said Parties of the First Part [respondents] are not able to give the Parties of the Second Part [appellants] a good and merchantable title to the above described land, the $ 1,300 paid on the execution of this contract and the above mentioned note of $ 200, with interest, shall be retained by the Parties of the First Part as rent on said land for the year 1941."
The appellants' petition and the agreed statement of facts show the execution of the above contract and that appellants had paid the $ 1,300 and the $ 200 note, with interest, to respondents, and before December 31, 1941, appellants tendered to the respondents $ 8,100, the balance due under the contract, but respondents refused to accept that sum and give warranty deed to the land.
The respondents' answer and, also, the agreed statement of facts admitted the execution of the contract and $ 1,300 payment and the payment of the $ 200 note and the tender of the balance due under the contract, but respondents could not convey to appellants a good and merchantable title to the land because there was then pending in the Supreme Court of Missouri a case instituted by the Edwards Land and Timber Company against these respondents. The object of that suit was to redeem the land in question from a tax sale and to quiet the title in the Edwards Land and Title Company and if the respondents were not successful in the Supreme Court, they would have no title to convey. Therefore, under their contract they did not have to convey to appellants because they were unable to convey a good and merchantable title. The agreed statement of facts proved the existence of such suit pending, and it is now reported in 349 Mo. 758, 163 S.W.2d 581.
Appellants' reply stated that if respondents were not able to convey a good and merchantable...
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