Cantrell v. McDonald
| Decision Date | 13 March 1967 |
| Docket Number | No. 52130,No. 1,52130,1 |
| Court | Missouri Supreme Court |
| Parties | Ralph CANTRELL and Jane Cantrell, Appellants, v. Lester McDONALD, Blanche McDonald, and Dwight Crader, Trustee, Respondents |
Kenneth L. Dement, Sikeston, for appellants.
J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for respondents.
HOUSER, Commissioner.
Action in equity by Ralph Cantrell and wife, purchasers named in a written contract for the sale of farm land, against Lester McDonald and wife, the sellers, and Dwight Crader, the trustee in a deed of trust executed by purchasers. In Count I plaintiffs sought rescission and cancellation of the contract of sale and refund of $10,000 paid down on the contract. In Count II plaintiffs prayed for cancellation of the warranty deed executed by the McDonalds, cancellation of the deed of trust executed by purchasers, an injunction against foreclosure of the deed of trust, cancellation of the contract of sale, refund of the $10,000 down payment and restoration of the status quo prior to the execution of the contract.
The trial chancellor found the issues for defendants and against plaintiffs and decreed that plaintiffs take nothing. Plaintiffs have appealed, making the single point that the decree is against the evidence and the greater weight of the credible evidence and that they are entitled to rescission, refund, etc. because they clearly proved that the acts and conduct of defendants constituted a fraudulent misrepresentation of the acreage contained in the tract of land purchased by plaintiffs. They claim that the defendants represented that the tract contained 120 acres and that they were to receive 120 acres plus a house and barn and the land surrounding the house and barn, but that in fact they received only 107.9 acres. Contrarily, defendants maintain that they made no representation to the Contrells that they were purchasing 120 acres of land; that the land described in the contract of sale was the west half of the farm, less 10.59 acres previously sold for right of way purposes, plus the 1.99 acres where the house and barn stand; that this was a sale of a parcel of land in gross and not a sale by the acre, as shown by the contract of sale and the warranty deed into which the contract was merged.
The following facts are undisputed: The McDonalds owned a part of Section 27, Township 27, Range 14 in Scott County, originally consisting of 240 acres, being the four quarter quarter sections making up the southeast quarter, and the two quarter quarter sections constituting the east half of the southwest quarter, of the section. Prior owners had deeded away 3.5 acres of the 240 acres for road purposes. In 1961 the McDonalds executed a right of way deed to the state highway commission conveying 10.59 acres off the west side of the land for the construction of Interstate Highway No. 55. Lester McDonald told Reginald Merrick, a real estate agent, that he wanted to sell 'the whole thing,' 240 acres, and they entered into a listing contract 'for the 270 acres.' Merrick interested Ralph Cantrell in the land but Cantrell did not want the whole tract. About a week before the contract of sale was signed Ralph Cantrell, Mrs. Cantrell, Lester McDonald and Reginald Merrick met at the farm and discussed sale of a part of the farm. The only discussion about price was the offer to sell the land for $40,000. This was a package price. There was no mention or discussion of the sale of the property at so much per acre. On January 8, 1964 the Cantrells, the McDonalds, and Merrick met at the office of an attorney, who was employed to draw the papers. The attorney prepared and the Cantrells and McDonalds signed a contract for the sale of real estate. The property was described in the contract as follows:
The consideration was $40,000, payable $10,000 at the time of the execution of the contract, balance ($30,000) payable in 15 annual installments of $2,000; first installment due January 1, 1965. Sellers were to convey by warranty deed to be executed at the time of the contract, placed in escrow and delivered on payment of balance of purchase price. Provision was made for examination of an abstract of title, survey of the house lot and barn lot for the purpose of obtaining a legal description, delivery of possession on or before February 1, 1964. Buyers were to receive one fourth of all U.S. Government farm allotments then held by sellers 'on the above described 240 acres, and another 240 acres which Seller owns.' On January 8, 1964 the warranty deed was prepared and executed but the space for the description of the land was left blank. Cantrell made the down payment of $10,000. The Cantrells entered into possession and began cultivating the land. The abstract was examined; title was approved; the survey of the 1.99 acre tract was made, and a metes and bounds description of the 1.99 acre tract was supplied; the surveyor ran a north and south line dividing the entire farm into two equal parts. With the information the attorney wrote the following description in the blank deed:
The deed of trust is dated April 8, 1964. On that date the attorney mailed the warranty deed and the deed of trust to the recorder of deeds, and they were recorded. In 1964 Cantrell was in two automobile accidents and spent much time in hospitals. The operation of the farm was not profitable. He defaulted on the $2,000 installment due January 1, 1965. He tried unsuccessfully to refinance the loan. In February, 1965 he was informed by Herb Stephens, who wanted to buy the farm, that it contained only 108 acres. Cantrell employed counsel and demanded rescission of the contract and restoration of the down payment. Foreclosure proceedings were commenced, and this suit followed.
The hotly disputed question of fact for the trial chancellor, now before us for resolution, is whether Lester McDonald made a representation as to the amount of the acreage in the tract. Ralph Cantrell testified that at the meeting at the farm McDonald said that he would sell him a 120-acre tract of land with the house and barn and land surrounding them; that at the attorney's office on January 8 McDonald told him 'there was a hundred and twenty acres there' and that he was buying 120 acres with the house and barn; that when, in McDonald's presence, Herb Stephens said to Cantrell that he wanted to buy his farm of 108 acres, McDonald denied that there were less than 120 acres. Cantrell conceded that he had read the contract of sale and saw the 'except 10.59 acres' language but claimed that he was not a lawyer and did not know what it meant; that at that time he did not know what 'except' meant; that it did not occur to him that there might be any land taken off the west end of those forties where the highway went across and that he never had any conversation with anyone about that. He conceded, however, that at the time...
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Brown v. Mickelson
...for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount." Cantrell v. McDonald, 412 S.W.2d 403, 408 (Mo.1967) (internal quotation omitted); see also Arnett v. Venters, 673 S.W.2d 67, 73 (Mo.App. W.D. 1984); Fickbohm v. Schoonover, 453......
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Arnett v. Venters
...of the mentioned amount, affords no basis for an action for breach of any of the usual covenants in a warranty deed. Cantrell v. McDonald, 412 S.W.2d 403, 408 (Mo.1967). The rule or principle just mentioned is particularly applicable where, as here, a sale in gross by the tract, and not a s......
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Fickbohm v. Schoonover, 8910
... ... Cantrell v. McDonald, Mo., 412 S.W.2d 403, 408--409(2--5)(9); Wood v. Murphy, 47 Mo.App. 539, 543--544. If, however, the tract is not described by metes and ... ...
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Becker v. Workman, 36352
...acres in the case of a 19.68 acre tract. Furthermore, metes and bounds in a description control a call for acreage. Cantrell v. McDonald,412 S.W.2d 403, 408(4) (Mo.1967). Appellants argue that since there was only one gate into and out of the 2.45 acre tract, and since that gate was on the ......