Edwards v. Watson

• Decision Date: 31 May 1913
• Docket Number: No. 15990.,15990.
• Parties: EDWARDS v. WATSON et al.
• Court: Missouri Supreme Court

167 S.W. 1119

258 Mo. 631

EDWARDS v. WATSON et al.

No. 15990.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

On the Merits, June 2, 1914.

On Motion to Dismiss.

1. APPEAL AND ERROR (§ 334)—DEATH OF PARTY PENDING APPEAL—SUBSTITUTION— STATUTORY PROVISIONS.

New parties, as successors to those who die pending an appeal, can only be substituted in the mode pointed out by statute, either on voluntary appearance and consent of the adverse party, or after service of summons issued for the purpose of revivor.

2. APPEAL AND ERROR (§ 334)—DEATH OF PARTY PENDING APPEAL—SUBSTITUTION— STATUTORY PROVISIONS.

Though, notwithstanding the death of one of a number of appellants, the cause may proceed without a revivor, as a general rule, yet circumstances may arise in which the parties ranged as appellants may be so adverse that they will need protection from each other, in which case, on the suggestion of the death of one of the appellants as authorized by Rev. St. 1909, § 2074, a substitution may be had.

3. APPEAL AND ERROR (§ 334)—DEATH OF PARTY PENDING APPEAL—SUBSTITUTION— PROCEEDINGS.

Rev. St. 1909, § 2078, providing that persons may be substituted as parties or compelled to become parties, in cases pending in the Supreme Court, "in like time and manner, and with like effect as provided for in original suits in circuit courts," when read, as it must be, in connection with section 1921, providing that where the representatives of a deceased party shall not be made parties on or before the third term after the suggestion of the death, the action shall abate, gives to the representatives interested, as well as to the parties to the suit, a plenary right to make the substitution at any time before or during the third term after the suggestion of the death.

4. APPEAL AND ERROR (§ 334)—DEATH OF PARTY PENDING APPEAL—SUBSTITUTION OF PARTIES.

Where, pending an appeal by a purchaser from a judgment denying specific performance of the contract of sale, the vendor dies, the heirs or devisees of the vendor must be substituted as defendants, and it is not sufficient to substitute his administrator, though the petition prays for damages for breach of the contract, if the court will not decree specific performance.

On the Merits.

5. SPECIFIC PERFORMANCE (§ 25)—CONTRACTS — ENFORCEABILITY — CONTRACTS FOR THE SALE OF REAL ESTATE.

A contract of sale of real estate, which binds the vendor to prepare and perfect title, and which requires the purchaser to pay for the making of abstract containing complete title, and which gives him a reasonable time to perfect a loan and abstract, and which stipulates that the purchaser shall pay interest from a designated date, at which time he is to have possession, and that the vendor shall pay back taxes, and that a deed shall be placed in escrow in a bank and held by it until the loan is provided and finally finished, and a contemporaneous deed, which, with slight misdescriptions, describes the property, and a contemporaneous check signed by the purchaser and made payable to the bank, must be construed together, where they were deposited together with the bank, and when so construed they show a contract of sale of described lands for a stipulated price which equity can specifically enforce.

6. SPECIFIC PERFORMANCE (§ 97)—CONTRACTS —RIGHT OF ACTION.

A contract of sale of real estate, which requires the vendor to perfect title, and which gives the purchaser a reasonable time in which to perfect loan and abstract, and which provides that a deed to the land shall be placed in escrow in a bank until the loan is provided and title finally finished, binds the vendor to show a perfect paper title, and the purchaser need not take any steps until the vendor first shows a paper title, and the purchaser on the refusal of the vendor to perfect title may maintain specific performance without first tendering cash or showing his financial ability to pay.

7. SPECIFIC PERFORMANCE (§ 8)—CONTRACTS ENFORCEABLE—CONTRACTS FOR THE SALE OF REAL ESTATE.

Where a contract of sale of real estate was not tainted by fraud or overreaching, the court should at the suit of the purchaser compel specific performance.

Appeal from Circuit Court, Greene County; J. T. White, Judge.

Action by Frank R. Edwards against J. F. Killingsworth and another. There was a judgment of dismissal, and pending an appeal by plaintiff, defendant Killingsworth died, and his administrator, W. R. Watson, was substituted in his place. Motion to dismiss cause for failure to revive it by substituting heirs of said defendant as defendants denied, with leave to revive by bringing in the heirs, and judgment on the merits reversed, and cause remanded.

Hamlin & Seawel, of Springfield, for appellant. Patterson & Patterson, of Springfield, for respondents.

On Motion to Dismiss.

BROWN. C.

This suit was instituted October 26, 1909, against Killingsworth and the Farmers' Bank, to obtain specific performance of a contract to convey land in Greene county and incidentally to reform the written contract by correcting the description of the land. Among other things, the petition states:

"That on said date, to wit, July 7, 1908, the plaintiff purchased said real estate from the defendant for the price and sum of $3,850, and entered into a written contract with defendant whereby they agreed as follows: That the plaintiff would pay for an abstract of title, and the defendant would furnish plaintiff a perfect title to said real estate, and deliver him possession of same between the 1st and 15th days of August, 1908, and allow plaintiff one-third of all crops grown on 64 acres of said premises in the year 1908 (except the orchard), and that plaintiff should have reasonable time to procure an abstract and a loan on said real estate, and the defendant was to have a reasonable time to perfect his title if it should be defective, and on said day executed a general warranty deed to plaintiff, intending by said deed to convey the aforesaid described real estate, and plaintiff drew his check on the Bank of Ash Grove, Ash Grove, Mo., for the sum of $100, payable to the said Farmers' Bank, and plaintiff and defendant J. F. Killingsworth delivered the possession of said written contract, check, and deed, to the Farmers' Bank aforesaid, which were inclosed in an envelope and deposited with the said bank with the understanding and agreement on the part of the plaintiff and defendants that the said defendant, Farmers' Bank, would hold said papers until called for by both parties, to wit, the plaintiff and J. F. Killingsworth, and would deliver up said papers when requested so to do by said parties."

It also charges, in substance, an offer to pay the consideration, and his readiness still to do so, and brings the amount into court. It also specifies certain damages which plaintiff claims to have suffered from the nonperformance of the contract, and concludes as follows:

"Wherefore plaintiff prays the court to ascertain the amount necessary to perfect said title in accordance with said contract, and the value of the crop belonging to plaintiff on said premises, and the rent value of the same from the 12th day of August, 1908, and the damages accruing to plaintiff by reason of being deprived of said premises. And that the possession of said premises be delivered to plaintiff, and all right, title, and interest of defendant therein be decreed and vested in plaintiff upon the payment of the sum found due the defendant by him, and in the event the court should find that plaintiff is not entitled to a specific enforcement of said contract, then plaintiff prays for the sum of $1,500 as damages by reason of its breach and for other proper relief."

A trial was had before the court without the intervention of a jury on October 27, 1909, resulting in a judgment for defendant dismissing the petition. The case was treated throughout as one for equitable relief. This appeal was returnable to the April term, 1910, of this court. Killingsworth died in February, 1910, and on the 5th day of the following month the defendant Watson became administrator of his estate. On January 11, 1912, and during the October term, 1911, the death of Killingsworth was suggested in this court, and a scire facias was issued to the administrator returnable on the first day of the next term. On March 12, 1913, the abstract of record and brief were filed by appellant, and on April 12th the respondents by their attorneys filed their brief.

The heirs of Killingsworth have, during the present term, appeared for that purpose only, and filed their motion to dismiss the cause for the reason that it has not been revived by substituting them as defendants, and the question is presented whether we should proceed with the parties now before us to finally dispose of this appeal.

It has been uniformly held by this court that, although new parties, as successors to those who may have died during the pendency of the appeal, can only be substituted in the mode pointed out by the statute, that is to say, upon voluntary appearance and consent of the adverse party, or after service of summons issued for the purpose of revivor on such party (See Minton v. Steinhauer, 243 Mo. 54, 147 S. W. 1014; Jeffries v. Flint, 55 Mo. 29), yet on the death of one of a number of appellants a cause may proceed without a revivor (Reineman v. Larkin, 222 Mo. 156, 121 S. W. 307; Reed v. Colp, 213 Mo. loc. cit. 581, 112 S. W. 255; St. Louis v. Brinckwirth, 204 Mo. loc. cit. 286, 102 S. W. 1091; Prior v. Kiso, 96 Mo. 303, 9 S. W. 898). These cases, however, apply each to its own facts, and there is nothing in them that suggests that the court thought it impossible that circumstances might arise in which the interests of the parties ranged on the same side as appellants might in fact be so adverse that they would need protection from each other. The Legislature seemed to have some such notion when it expressly required, in what is now section...