Davis v. Petty

• Decision Date: 23 December 1898
• Citation: 48 S.W. 944,147 Mo. 374
• Parties: DAVIS et al. v. PETTY.
• Court: Missouri Supreme Court

48 S.W. 944

147 Mo. 374

DAVIS et al. v. PETTY.

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

SPECIFIC PERFORMANCE — CONSIDERATION — LACHES.

An option given without consideration by the vendor of land to plaintiff, to buy on demand certain adjoining land, will not be enforced, demand not having been made for more than six years, the land having been bought for town lots, and there having proved to be no sale for them till near the end of said six years, when there was a boom, one of the purchasers having offered in the meantime to sell back what he had bought for the price paid, without interest, and the vendor having in such time put improvements on the land exceeding the price to be paid, plaintiffs remaining silent.

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Action by Jackson B. Davis and others against William I. Petty. Judgment for defendant. Plaintiff's appeal. Affirmed.

This is a suit for specific performance. The agreement which forms the basis of the action is contained in the following paper: "This agreement, made and entered into this August 4, 1888, by and between William I. Petty, John D. Porter, Jackson B. Davis, William E. Wright, and Henry Brumback, witnesseth: Whereas, said Petty is now the owner in fee of the following described real estate, situate in Lawrence county, Missouri, viz. the southwest quarter of the southwest quarter of section twenty-five (25), in township twenty-eight (28), of range twenty-eight (28), containing forty acres, more or less, and all the parties above named contemplate and design to locate and lay out a town upon the said real estate: Now it is agreed that simultaneously with the execution hereof said Petty, in consideration of six hundred and forty dollars ($640.00), shall convey to said Porter, Davis, Wright, and Brumback, by warranty deed, with release of dower, the equal undivided four-fifths (4/5) part of the west half of said forty-acre tract of land; and that whenever said Davis, Porter, Wright, and Brumback, their heirs, executors, administrators, or assigns, shall desire and shall demand of him, then the said Petty, in consideration of six hundred and forty dollars ($640.00) more, to be then to him paid, shall, by good and sufficient warranty deed, with release of dower, convey to said Davis, Porter, Wright, and Brumback the equal undivided four-fifths part (4/5) of the east half of said forty-acre tract of land. And said Porter, Davis, Wright, and Brumback agree to pay to said Petty, upon the execution hereof, said sum of six hundred and forty dollars ($640.00) for said part of said west half, and whenever they shall make of said Petty the demand aforesaid for said part of said east half, to pay him then therefor the further sum of six hundred and forty dollars ($640.00), each an equal part. And the said five parties so mutually agree that they shall at once lay out and plat said west half into town lots, and place them upon the market for sale, in such manner and upon such terms, as shall seem expedient. If deemed advisable, they shall appoint an attorney in fact to execute conveyances, and, if deemed better by a majority, they shall incorporate for the purposes herein named. Each party shall bear an equal one-fifth part of all expenses incident to the enterprise, and share an equal one-fifth part of the net profits. When, if at all, deemed marketable to advantage, they shall lay out and plat into town lots the said east half, and place them upon the market, the parties having become first equal owners thereof by purchase and conveyance as aforesaid of said Petty. Witness the hands and seals of the parties. [Signed] William I. Petty. [Seal.] J. B. Davis. [Seal.] W. E. Wright. [Seal.] Henry Brumback. [Seal.] John D. Porter. [Seal.]" A deed was made by Petty and wife, on the same day upon which the contract was executed, conveying to the parties named above four-fifths of the west half of the 40 acres described in said writing. Defendant testified that said deed was made about one hour before he signed the contract above set out. Plaintiffs' testimony goes to show, upon the contrary, that the deed and contract were executed at the same time. Porter, one of the contracting parties, assigned his interest to William A. McCane, who joins as plaintiff herein. A decree enforcing the agreement as to the east half is the relief sought in this case. The parts of the written contract applicable thereto are in italics. There is no controversy here about the west half of the tract of land. After the conveyance by Petty, it was divided into lots, a plat filed on September 14, 1888, and said lots offered for sale. Defendant, in August, 1888, was the owner of the 40 acres of land above described, and the same, together with a tract containing a similar quantity lying east of it, constituted his homestead. He was a farmer, nearly 70 years of age, and had lived there a long time. There were two mining plants on the land adjoining his on the west. Several of the plaintiffs visited him at his home on the 3d of August, 1888, and tried to buy the entire 40 acres. He declined to sell at all, but did agree to convey to them four-fifths interest in the west 20. There seems to be a difference of opinion as to whether any arrangement was made at that time concerning the disposition of the other half of the tract. His house and improvements were on that part — the east 20 — over which this litigation arises. Defendant went to town the next day, by appointment, and executed the deed to the west half, received the consideration therefor, $640, and signed the agreement hereinbefore set out concerning the 20 acres involved in this dispute. The west 20 acres were at once laid off into 90 town lots, and the plat filed on the 14th of September, 1888, as stated above. Although these lots were offered for sale, there seems to have been very little demand for them for several years. The speculation did not give any promise of success, and the outlook, for a number of years, for any profit from the investment, does not seem to have been bright. There was nothing to indicate that there would be any necessity for extending the limits of the town. Its original boundaries were apparently more than sufficient for all purposes. It did not appear at all probable that the land in controversy would be needed for town purposes. There was very little sale for the lots for more than five years. The first distribution of funds arising from the proceeds of the same was on April 8, 1893, and amounted only to $40 to each of the five joint owners, and the next was on January 22, 1895, of $184.44 each. The outlook was such that Mr. Brumback, one of the plaintiffs, quite a while after the town was laid off, proposed to sell his share to defendant for his original investment, without interest. Porter, one of the parties, said that the lots did not sell as rapidly as expected; that up to April, 1890, he thought they only sold enough to bring $35. None of the plaintiffs at any time from 1888 to 1893 ever mentioned to defendant the contract concerning the east 20 acres. They gave no intimation to him that they intended or ever expected to call upon him for a conveyance of the land in controversy that they might add it to the town site. Defendant, in the fall of 1893, or some time in that year (the date is not definitely fixed), said to plaintiff Wright, according to the latter's testimony, "You fellows will have to let me off from that contract; my wife refuses to make a deed." Wright says, "I did not say anything in reply; kept my mouth shut; thought the less said the best." Mr. Brumback says that about 18 months or 2 years before the trial, which was in August, 1895, defendant...