Colline Real Estate and Building Association v. Johnson
| Decision Date | 19 February 1894 |
| Citation | 25 S.W. 190,120 Mo. 299 |
| Parties | Colline Real Estate and Building Association, Appellant, v. Johnson |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Reversed and remanded.
Collins & Jamison for appellant.
(1) Plaintiff's remedy is the statutory action to quiet title. (2) Even if under the facts of this case the plaintiff might bring the suit in equity to remove a cloud from its title such remedy does not exclude the right to exercise the remedy afforded by the statute to quiet title.
Hiram J. Grover for respondent.
(1) "The design of the statute was to enable a party in actual possession of land, claiming it as his own, to compel a party out of possession, who also claimed to be owner, to bring ejectment to settle the question between them." Dyer v. Baumeister, 87 Mo. 138. (2) An executory contract can not constitute a cloud on title. Washburn v Burnham, 63 N.Y. 132; Boyd v. Schlesinger, 59 N.Y. 301; Leeds v. Wheeler, 157 Mass. 67; Nickerson v. Lund, 115 Mass. 94. (3) The plaintiff purchased the property knowing of the registry of the instrument in the recorder's office. It did not consider the instrument as in any way affecting the title which it purchased, and there is no basis of complaint on its part now. (4) Even if the statute were broad enough to embrace both legal and equitable titles, yet it is evidently intended to embrace only such claim as the plaintiff here can not have adjudicated in the courts.
OPINION
This is an action brought under section 2092, Revised Statutes, 1889, to quiet title. Plaintiff charged in its petition that it was the owner in fee of the real estate described and was in the possession thereof and that he was informed and believed that defendant made some claim thereto adverse to his estate. Defendant, in obedience to a summons to show cause why he should not bring an action to try his alleged right or title, answered, admitting that he made claim to the land described in the petition adverse to the estate claimed by the plaintiff therein.
In order to show cause, he stated in substance that his claim to the real estate consisted of a written contract of sale of the same made by William Preston Hill to one Charles Hewitt, which had been duly assigned to him. "That by said contract said Hill agreed to convey to said Hewitt said property for the price and sum of $ 35,000, and that upon said contract, as earnest money, said Hewitt paid to said Hill, and said Hill received the sum of $ 250; that after due demand for said conveyance and an offer upon the part of defendant, to whom said contract had been assigned, to pay said Hill said sum of $ 35,000, said Hill without cause refused to make such conveyance; that under said contract no title or right became vested in either said Hewitt or defendant, upon which either of them could maintain an action of ejectment or other action in which a question of title to said property could be tried; that the only action which accrued to defendant under said contract was an action either for damages or an action in equity for specific performance, neither of which this court is authorized to compel defendant to bring."
It was further charged that plaintiff held his title and possession under a deed made by Hill subsequent to the contract and with knowledge of it. Plaintiff replied to the answer by general denial.
On the trial of the issues made by the pleadings, it was shown that plaintiff was in possession of the premises under a deed from Hill dated January 2, 1889, and recorded November 25, 1889. It was also shown that the contract under which defendant claimed was dated March 16, 1889, and was signed by William T. Gay as agent for Charles Preston Hill. No written authority to make the sale was shown to have been given Gay by Hill. The contract was recorded. Upon the pleadings and evidence the court dismissed the petition, without making any order on defendant respecting the bringing and prosecution of an action to try its title, and plaintiff appealed.
I. It does not appear upon what ground the court declined to make an order requiring defendant to bring an action to try his alleged title. It may be said, in a general way, that this statutory proceeding is not, in the first instance, designed to try and determine the rights or title of the parties to the land, but to be preliminary to an action thereafter to be brought by the adverse claimant for that purpose. The court should therefore have confined its inquiries, in this proceeding, to the questions whether plaintiff was in possession of the property, claiming an estate of freehold, or an unexpired term of not less than ten years, and whether the defendant made some claim to the same premises adverse to that of plaintiff. R. S. 1889, sec. 2092; Dyer v. Baumeister, 87 Mo. 134. If these conditions were found to exist, and defendant showed no sufficient cause why he should not bring an action to test his claim, the order should have been made. The validity of the claim was not in issue.
II. Plaintiff showed himself entitled to maintain the proceeding, and defendant admitted that he made adverse claim of title to the property, but undertook to show cause why he should not be required to bring an action to try the validity of the claim. The first cause assigned was that his claim, under the contract, was equitable, and that the statute contemplated that the adverse claim, upon which suit could be required, should be to the legal title upon which an action of ejectment could be maintained.
We think the construction of the statute insisted upon too narrow...
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