Dunnaway v. Day

• Decision Date: 11 June 1901
• Citation: 163 Mo. 415,63 S.W. 731
• Parties: DUNNAWAY v. DAY et al.
• Court: Missouri Supreme Court

63 S.W. 731

163 Mo. 415

DUNNAWAY v. DAY et al.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

DEEDS — OPTION — FAILURE TO PERFORM.

Plaintiff claimed title to land under a quitclaim deed from the grantee in an instrument executed by defendants, who owned the land, which "granted, bargained, and sold" the same on conditions, among others, that on a day named they should receive $100 per acre for the land, a certain sum in cash, and balance in notes, and thereupon they would deliver to such grantee a perfect warranty deed, and convey the fee. Held that, notwithstanding the words "grant, bargain, and sell" in such instrument, it was a mere option, which gave such grantee or his successor no interest in the land after the time fixed therein for performance had passed without performance on his part.

Appeal from circuit court, St. Francois county; James D. Fox, Judge.

Action by Robert H. Dunnaway against William Day and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a suit in equity to remove a cloud upon the title to certain lands in St. Francois county, Mo., 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 the 4th 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 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 1st day of November, 1898, which said agreement was duly recorded upon the 10th 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 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 22d day of July, 1897, the owners of the real estate described in plaintiff's petition. Defendants further admit that on the said 22d 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 1st day of October, 1897, the sum of one hundred dollars ($100) 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 a 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 payment 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 1st 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 codefendant the St. Joseph Lead Company, on the 6th 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 a pecuniary profit and gain to its stock owners, and engaged in business in this state without having complied with the laws thereof, and particularly having failed to comply with the provisions of the law of this state entitled `Corporations Foreign,' approved April 21, 1891, and as amended by an act of the general assembly of this state approved March 11, 1895, which said law expressly provides that a foreign corporation which fails to comply with the requirements of said law could not maintain any suit or action, either legal or equitable, in any court of this state upon any demand, whether arising out of contract or tort. Therefore the said American Mineral Company could not now or ever maintain any suit or action against these defendants in this state upon the alleged cause of action set forth in plaintiff's petition or otherwise, and that under the laws of this state the plaintiff stands in no better position than its alleged grantor, the American Mineral Company, and cannot maintain this action against these defendants. Defendants, having fully answered, pray the court to be allowed to go hence without day, and that they have and recover of and from the plaintiff their costs laid out and expended in and about this case."

"State of Missouri, County of St. Francois — ss.: William Day, one of the defendants in the case of Robert H. Dunnaway, plaintiff, against William Day, Josephine Day, Mary C. Day, Jennette Covington, M. A. Covington, Charles Day and Nora Day, and William Day, their guardian, and the St. Joseph Lead Company, defendants, being duly sworn, upon his oath states that the said American Mineral Company, one of the plaintiff's grantors, and under whom this plaintiff claims title, is a foreign...