Dunaway v. Day
| Decision Date | 11 June 1901 |
| Citation | 63 S.W. 731,163 Mo. 415 |
| Parties | DUNAWAY, Appellant, v. DAY et al |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. Jas. D. Fox, Judge.
Affirmed.
J. M Holmes for appellant.
(1) The written instrument upon which the case is based is a deed and not an option. Russ v. Goff, 94 Mo. 511; Ellis v. Kyger, 90 Mo. 600; Ford v. Unity Church, 120 Mo. 498; Doman v. Intelligencer Co., 70 Mo. 168; Allen v. Kennedy, 91 Mo. 328; Foote v Clark, 102 Mo. 404. (2) The failure to pay the purchase money at the time specified did not defeat the title. Knight v. Railroad, 70 Mo. 231; Messersmith v Messersmith, 22 Mo. 372; Towne v. Bowers, 81 Mo. 497; Weinreich v. Weinreich, 18 Mo.App. 370; Melton v. Smith, 65 Mo. 322. (3) The defendant, the St. Joseph Lead Company, is chargeable with notice of the conveyance to appellant. Conn. Mut. Life Co. v. Smith, 117 Mo. 261; Task v. Kelly, 110 Mo. 127; Hidrick v. Buler, 110 Mo. 91; Jennings v. Todd, 118 Mo. 296; Barrett v. Davis, 104 Mo. 549. (4) The foreign corporation act has no application to this action. (5) The action will lie even though the plaintiff is not in possession. Thompson v. Lynch, 29 Cal. 189; Hager v. Shindler, 29 Cal. 48; Branch v. Mitchell, 24 Ark. 431; Redmond v. Packingham, 66 Ill. 434; Plant v. Barclay, 56 Ala. 561; King v. Carpenter, 37 Mich. 363; Low v. Staples, 2 Nev. 209; Pier v. Fond du Lac, 38 Wis. 470; Stewart v. Meyer, 54 Md. 454; Redding v. Branhan, 43 Minn. 283; Mason v. Black, 87 Mo. 329.
Wm. Carter and Huff & Sleeth for respondents.
(1) The instrument at most was a conveyance upon conditions to be subsequently performed by the grantee, the failure to perform which forfeited or nullified the deed or instrument. We insist that no such construction can be placed upon this instrument as is insisted upon by appellant. Giving to this instrument "such a reasonable interpretation as will give effect to the intention of the parties as is gathered from the writing itself," no court could construe it to be a deed absolute. Redheffer v. Leathe, 15 Mo.App. 12; Bent v. Alexander, 15 Mo.App. 181, 190; Wolf v. Dyer, 95 Mo. 551; Gibson v. Bogy, 28 Mo. 478; Jamison Trustee v. Fopiano, 48 Mo. 194; Davis v. Hess, 103 Mo. 31; Jennings v. Brizeadine, 44 Mo. 335; Guin v. Waggoner et al., 98 Mo. 315; Shank v. Waggoner, 98 Mo. 328; Guin v. Waggoner, 116 Mo. 143. (2) This was simply an option given to the American Mineral Company to purchase on the terms and conditions therein set out, on or before a day certain, to-wit, October 1, 1897, and a failure of the company to close the deal at or before that time forfeited all the rights of the company under that instrument, as well as of its assignees. Grantors did not, therefore, grant any interest in the land; neither was it a contract for its sale. The owners simply parted with their right to dispose of it for the time limited in the option. Ide v. Leister, 10 Mont. 11, 24 P. 695; Gustin v. School District, 94 Mich. 502; Richardson v. Hardwick, 106 U.S. 252; Bostwick v. Hess, 80 Ill. 138; Mers v. Franklin Insurance Co., 68 Mo. 127; 51 Central Law Journal, 84. Time is of the essence of this class of contracts and the prospective purchaser must act strictly within the period limited and communicate his acceptance to the owner before its expiration. Weaver v. Barr, 31 W.Va. 759; Barrett v. McAllister, 33 W.Va. 738; Potts v. Whitehead, 20 N.J.Eq. 59; 51 Central Law Journal, p. 86; Hollmann v. Conlon, 143 Mo. 369. (3) The original agreement between respondents Day and others and the American Mineral Company was void, and no action could be maintained upon it in the courts of this State. Laws 1891, p. 75; Laws 1895, p. 100; R. S. 1899, secs. 1025 and 1026; Williams v. Scullin, 59 Mo.App. 30; Blevins v. Fairley, 71 Mo.App. 259; Erhardt v. Robertson Bros., 78 Mo.App. 404. Nor can any grantee or assignee of that company maintain such action. Downing v. Ringer, 7 Mo. 585; Erhardt v. Robertson Bros., 78 Mo.App. 409. (4) The defendants being, as alleged by plaintiff, in possession and plaintiff being out of possession and claiming under an instrument which it is alleged conveys to him the legal title, his remedy is at law by way of ejectment, and not in equity, and this suit should be dismissed. Gamble v. City of St. Louis, 12 Mo. 620; Clark v. Insurance Co., 52 Mo. 272; Keane v. Kyne, 66 Mo. 216; Beedle v. Mead, 81 Mo. 297; Thompson v. Newberry, 93 Mo. 25; Davis v. Sloan, 95 Mo. 552; Graves v. Ewart, 99 Mo. 13; Crisp v. Crisp, 86 Mo. 630; Mason v. Black, 87 Mo. 329, at 346; Ins. Co. v. Smith, 117 Mo. 297; Railroad v. Nortoni, 154 Mo. 149.
This is a suit in equity to remove a cloud upon the title to certain lands in St. Francois county, Missouri, and was returnable to the May term, 1898, of the circuit court of said county. The petition alleged that on July 22, 1897, the said lands belonged to the defendants other than the St. Joseph Lead Company; that said defendants other than the St. Joseph Lead Company sold and conveyed said lands to the American Mineral Company, a corporation, which deed was duly recorded in St. Francois county; that thereafter, to-wit, on fourth day of December, 1897, said American Mineral Company conveyed said lands to one David L. Dyas, who afterwards on January 20, 1898, conveyed the same to plaintiff; that the deed of July 22, 1897, by defendants, to the said American Mineral Company was not recorded until December 24, 1897; that the defendants, other than the St. Joseph Lead Company, afterwards, on October 6, 1897, made an agreement with said St. Joseph Lead Company by which they obligated themselves to convey said lands to said St. Joseph Lead Company on the first day of November, 1898, which said agreement was duly recorded upon the tenth day of December, 1897; that defendants having conveyed said lands to said mineral company had no right to contract to convey the same to the St. Joseph Lead Company and said last named company had full notice of said prior deed to said American Mineral Company, and the said recorded agreement constitutes a cloud upon plaintiff's title to said land. The prayer was to declare the said agreement null and void, and to restrain defendants from executing the deed as therein agreed, and for all proper relief.
The adult defendants, William Day, Josephine Day, Mary C. Day, Jennette Covington and M. A. Covington, for their separate answer to plaintiff's petition on file in this cause, admit that they, together with Charles Day and Nora Day, minor heirs of James F. Day, were, on the twenty-second day of July, 1897, the owners of the real estate described in plaintiff's petition. Defendants further admit that on the said twenty-second day of July, 1897, these defendants answering, agreed to sell and convey said real estate to the said American Mineral Company, upon the terms and conditions fully set forth in said agreement. That by the terms of said agreement the said American Mineral Company was to pay to the defendants, on the first day of October, 1897, the sum of one hundred dollars per acre for said lands and real estate in the following manner: five hundred dollars in cash, and the balance thereof in three promissory notes of equal amounts, due in one, two and three years from October 1, 1897, with interest thereon at the rate of six per cent per annum from date, said notes to be secured by the first deed of trust upon said real estate, and said notes were to be executed by the American Mineral Company in favor of the defendants, and upon the payments and execution of the notes and deed of trust, aforesaid, the defendants were to deliver to the said American Mineral Company a deed to said lands, conveying the fee simple title to the same. Defendants further answering, state that the American Mineral Company wholly failed and neglected to make the payments and execute the notes and deed of trust as specified, required by the terms of said agreement at the time therein mentioned, to-wit, on the first day of October, 1897, or at all; but, on the contrary, at the time the said payments were due under the terms of said agreement the said American Mineral Company notified these defendants that the trade and deal was off, and that they would not comply with said agreement on their part. Defendants having been so advised and being aware of the fact that the said American Mineral Company had wholly failed to comply with said agreement on its part, entered into an agreement, in good faith, for a valuable consideration, with co-defendant, the St. Joseph Lead Company, on the sixth day of October, 1897, to convey said lands and real estate to the said St. Joseph Lead Company; that at the time of entering into said agreement with the St. Joseph Lead Company the defendants believed that the said American Mineral Company had refused to take and pay for said property, as they had been informed. Defendants further admit that the agreement made by them with St. Joseph Lead Company for the sale of these lands was filed for record and recorded prior to the filing and recording of the agreement between the defendants and the American Mineral Company. These defendants further answering, deny each and every allegation, averment and statement in plaintiff's petition contained not hereinbefore expressly admitted or specifically denied.
These defendants, further answering, aver the fact to be that the said American Mineral Company, the party under whom this plaintiff claims title, is a foreign corporation organized and existing under the laws of the State of Nevada; that said American Mineral Company was a corporation formed for the purpose of pecuniary profit and gain to its stock owners and engaged in...
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