O'Day v. Van Leeuwen, 39522.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Bradley
• Citation: 190 S.W.2d 263
• Parties: JOSEPH B. O'DAY and LEONA O'DAY v. ADRAIN VAN LEEUWEN, BESSIE VAN LEEUWEN, H.L. EMERSON, and MICHAEL BOTTA, Defendants, MICHAEL BOTTA, Appellant.
• Docket Number: No. 39522.,39522.
• Decision Date: 05 November 1945

190 S.W.2d 263 JOSEPH B. O'DAY and LEONA O'DAY
v.
ADRAIN VAN LEEUWEN, BESSIE VAN LEEUWEN, H.L. EMERSON, and MICHAEL BOTTA, Defendants, MICHAEL BOTTA, Appellant. No. 39522. Supreme Court of Missouri. Division One, November 5, 1945.

Appeal from Platte Circuit Court. — Hon. R.B. Bridgeman, Judge.

AFFIRMED.

Leslie E. Bates, Calvin & Kimbrell, Walter W. Calvin and Bert S. Kimbrell for appellant.

(1) Since the plaintiffs' petition herein is fatally defective, in that it wholly fails to allege grounds sufficient to entitle them to the equitable relief therein sought, the court erred in not finding and declaring, as a matter of law, that they were not entitled to any equitable relief; and, particularly, that they were not entitled to the equitable relief prayed for therein. Story v. American Central Ins. Co., 61 Mo. App. 534; Lackawanna Coal & Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35; Terry v. Michalak, 319 Mo. 290, 3 S.W. (2d) 701. (2) Since the written instrument, upon which the plaintiffs relied, and here rely, to impart constructive notice of the contents thereof, to the defendants in said cause, was not such a one as was entitled to be recorded in the office of the recorder of deeds, it cannot, legally or equitably, be contended here, that the defendant, Michael Botta, the appellant herein, had constructive knowledge of the matters and things therein contained. Secs. 3416, 3426, 3427, R.S. 1939; Heintz v. Moore, 246 Mo. 226, 151 S.W. 449; Drzewiecki v. Stock-Daniel Hardware Co., 293 S.W. 441; Hellweg v. Bush, 228 Mo. App. 876, 74 S.W. (2d) 89; General Theatrical Enterprises, Inc., v. Lyris, 131 S.W. (2d) 874. (3) There was no proof that the defendant, Michael Botta, the appellant herein, prior to his purchasing the real estate in question, had acquired or had any actual knowledge. (4) The burden was upon the plaintiffs to show the existence, and the terms, of such a contract as could have been specifically enforced; and, inasmuch as the testimony, as disclosed by the record here, was, legally and wholly, insufficient to establish the existence of such a contract, much less the terms thereof, the court erred in awarding the plaintiffs any equitable relief; and, particularly, the equitable relief prayed for in their amended petition herein. Koob v. Ousley, 240 S.W. 102; Adrain v. Republic Finance Corp., 286 S.W. 95; Hobbs v. Hicks, 8 S.W. (2d) 966. (5) Moreover, a parol contract, for the sale of land, must be clearly, and conclusively, established; and, since the plaintiffs' testimony, as disclosed by this record, fell far short of that requirement, the court erred in not declaring, as a matter of fact, and as a matter of law, that they were entitled to a recovery, in this action. Taylor v. Von Schroeder, 107 Mo. 206, 16 S.W. 675; Heller v. Jentzsch, 303 Mo. 440, 260 S.W. 979; Stibal v. Nation, 98 S.W. (2d) 724.

Walter J. Gresham for respondents.

(1) The petition was sufficient. It set out the terms of contract of exchange, alleged performance in full by plaintiffs, and that appellant Botta acquired the property with notice of the interest of plaintiffs. Bick v. Mueller, 142 S.W. (2d) 1021; Cave v. Wells, 319 Mo. 930, 5 S.W. (2d) 636; 23 C.J. 184, sec. 1; Scheerer v. Scheerer, 287 Mo. 92, 229 S.W. 192; Rodgers v. Western, etc., Ins. Co., 186 Mo. 248, 85 S.W. 369. (2) The alleged error was not against appellant. Morgan v. Huning, 232 S.W. 88; Mooneyham v. Mynatt, 222 S.W. 451. (3) Appellant made no timely attack on the petition. Morrow v. Mo. G. & E. Service Co., 286 S.W. 106; East St. L. etc., Co. v. Kuhlmann, 238 Mo. 685, 142 S.W. 253; Snyder v. Wagner Elect. Mfg. Co., 284 Mo. 285, 223 S.W. 911; Finley v. Williams, 325 Mo. 688, 29 S.W. (2d) 103; Philibert v. Benj. Ansehl Co., 342 Mo. 1239, 119 S.W. (2d) 797. (4) If defective, the petition is considered as amended. Bank of Oak Ridge v. Duncan, 328 Mo. 182, 40 S.W. (2d) 656; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Solomon v. Moberly L. & P. Co., 303 Mo. 622, 262 S.W. 367. (5) No issue was made by appellant as to a bona fide purchase. There was no pleading of good faith and lack of notice. Hudson v. Wabash & Western Ry. Co., 101 Mo. 13, 14 S.W. 15; Ellyson v. Mo. P. & L. Co., 59 S.W. (2d) 714; Carter v. Metr. Life Ins. Co. 275 Mo 84, 204 S.W. 399; 1 Houts' Pl. & Pr., p. 164; McAboy v. Packer, 187 S.W. (2d) 207; Pomeroy, Equity Jur., secs. 784, 785; Young v. Schofield, 132 Mo. 650, 34 S.W. 497; McQuitty v. Steckdaub, 190 S.W. 590; Wallace v. Wilson, 30 Mo. 335. (6) The answer states no facts showing a valuable consideration. Pomeroy, Equity Jur., sec. 746; Wetmore v. Woods, 62 Mo. App. 265; City Bank v. McElvain, 280 Mo. 505, 219 S.W. 75; Lionberger v. Baker, 88 Mo. 447; Benson v. Watkins, 313 Mo. 426, 285 S.W. 407. (7) The answer makes no issue as to any matter in controversy. Dezell v. Fid. & Cas. Co., 176 Mo. 253, 75 S.W. 1102; 1 Houts' Pl. & Pr., sec. 102; Sec. 1083, R.S. 1939; Lackawanna Coal & Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W. (2d) 803. (8) No evidence on vital issues was offered by appellant. Snyder v. Free, 114 Mo. 360, 21 S.W. 847; Mathews v. O'Donnell, 289 Mo. 235, 233 S.W. 45; Parish v. Casner, 282 S.W. 392; Warner v. Litzsinger, 45 Mo. App. 106; Payne v. C. & A.R. Co., 136 Mo. 562, 38 S.W. 308; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326; Gross v. Watts, 206 Mo. 373, 104 S.W. 30; Barber v. Nunn, 275 Mo. 565, 205 S.W. 14; Benson v. Watkins, 313 Mo. 426, 285 S.W. 407; Halsa v. Halsa, 8 Mo. 303. (9) Failure of a party to testify raises unfavorable inferences. State ex rel. Wabash Ry. Co. v. Trimble, 260 S.W. 1000; Sanders v. Kaster, 222 S.W. 133; Mason v. Perkins, 180 Mo. 702, 79 S.W. 683; Schooler v. Schooler, 258 Mo. 83, 167 S.W. 444; Shumate v. Hoefner, 347 Mo. 391, 147 S.W. (2d) 640; Parish v. Casner, 282 S.W. 392; Mathews v. O'Donnell, 289 Mo. 235, 233 S.W. 451; Barber v. Nunn, 275 Mo. 565, 205 S.W. 14. (10) The existence and terms of the contract were admitted by defendants Van Leeuwen, who testified, and the evidence showed appellant took with notice. Jones v. Jones, 333 Mo. 378, 63 S.W. (2d) 146; Smith v. Lore, 325 Mo. 282, 29 S.W. (2d) 91; Nokol Co. v. Becker, 318 Mo. 292, 300 S.W. 1108; Hobbs v. Hicks, 320 Mo. 954, 8 S.W. (2d) 966.

BRADLEY, C.

Suit in equity for the specific performance of an oral contract for the exchange of real properties. Decree for plaintiffs and defendant Botta appealed.

Plaintiffs alleged that on or about July 1, 1941, they entered into an oral agreement with the defendant Van Leeuwens to exchange their property located at 512 Kensington Street, Kansas City, Missouri, for certain described lots owned by the Van Leeuwens in Northmoor, a subdivision in Platte County, Missouri; that in accordance with the agreement they conveyed to the Van Leeuwens by warranty deed the Kensington Street property, subject to a deed of trust for $1880.93, and delivered possession; that the Van Leeuwens delivered possssion of the Northmoor property to plaintiffs, but in violation of the agreement, failed and refused to execute a deed to said property to plaintiffs subject to a $400 deed of trust; that the Van Leeuwens, in February, 1942, ousted...