Eggert v. Chas. H. Heer Dry-Goods Co.

• Decision Date: 19 January 1891
• Citation: 15 S.W. 65,102 Mo. 512
• Parties: EGGERT v. CHAS. H. HEER DRY-GOODS CO. et al.
• Court: Missouri Supreme Court

15 S.W. 65

102 Mo. 512

EGGERT v. CHAS. H. HEER DRY-GOODS CO. et al.

Supreme Court of Missouri.

January 19, 1891.

SPECIFIC PERFORMANCE — DESCRIPTION OF LAND.

A contract for the sale of land described it as "part of N. W. ¼ of S. W. ¼ of Sec. 23, T. 24, R. 26, 37 acres, and S. ½ of S. W. ¼ of Sec. 23, T. 24, R. 26, 80 acres; total, 117 acres." A petition by vendee for specific performance described the land in the same way, and alleged that the vendor had conveyed it to a co-defendant, who purchased with notice of the plaintiff's contract, and for the sole use and benefit of another co-defendant, who also had notice, and "is now in the possession of all said real estate." Defendants filed a general denial, and there was a judgment in their favor. Held that, no objection to the description having been taken in the trial court, it will be presumed that the 37 acres were well known by the description given, and, the plaintiff having made a clear case for specific performance, the judgment should be reversed.

Appeal from circuit court, Barry county; W. D. HUBBARD, Judge.

This was a suit for the specific performance of a contract to convey land. The petition was as follows: "The plaintiff, Carl Eggert, for his cause of action herein, states: That the defendant the Chas. H. Heer Dry-Goods Co., of Springfield, Greene Co., Mo., is, and for all the dates and periods hereinafter mentioned has been, a corporation duly incorporated and existing as a corporation under the laws of the state of Missouri, and as such is entitled to sue and be sued, plead and be impleaded, in all the courts of this state. That on the 12th day of December, A. D., 1885, the said Chas. H. Heer Dry-Goods Co. was the owner in fee of the following described real estate, lying, being, and situate in the county of Barry and state of Missouri, viz.: Part of the north-west quarter of the south-west quarter of Sec. 23, township 24, range 26, 37 acres, and the south half of the south-west quarter of Sec. 23, township 24, range 26, 80 acres; total, 117 acres. That said Chas. H. Heer Dry-Goods Co., on said 12th day of December, 1885, executed and delivered to plaintiff its certain contract in writing, (which contract is hereto attached and herewith filed,) wherein and whereby it agreed to sell to plaintiff the aforesaid real estate on the following terms and conditions, to-wit: That plaintiff was to pay to said defendant the sum of five ($5.00) dollars cash in hand, and was to pay to said Dry-Goods Co. the further sum of one hundred and ninety-five ($195) dollars, within thirty (30 days) days of that date, and was to execute to said Dry-Goods Co. within said (30 days) thirty days his three several promissory notes, as follows:

                One note, due 1 yr. from date, 8 per cent
                 int.....................................  $  50 00
                One note, due 2 yrs. from date, 8 per cent
                 int......................................   100 00
                One note, due 3 yrs. from date, 8 per cent
                 int......................................   100 00
                                                            _______
                                                            $250 00
                

All of said notes to be secured by trust-deed on lands herein described. And said Dry-Goods Co. further contracted and agreed that said Dry-Goods Co. should execute and deliver to plaintiff a good and sufficient warranty deed conveying to him the real estate aforesaid. Plaintiff further states that he paid to said Dry-Goods Co. on said 12th day of December, 1885, said sum of five ($5) dollars in cash on said contract, and within less than thirty days thereafter, to-wit, about January 1, 1886, he paid to said Dry-Goods Co. said sum of one hundred and ninety-five dollars; all in full compliance with said terms of said contract. Plaintiff further states that within less than (30 days) thirty days after said 12th of December, 1885, to-wit, on the 6th day of January, A. D. 1886, said Dry-Goods Co. refused to comply with the terms of said contract on their part, and refused to execute a deed of conveyance for said real estate to plaintiff, in compliance with the terms of its said contract, and still refuses to comply with said contract, and on said 6th day of January, A. D. 1886, notified plaintiff of its refusal to comply with said contract. Plaintiff further states that at the time of the execution and delivery to him of said contract (December 12, 1885) he was a resident of, and owned real and personal property in, Jasper county, in the state of Iowa, and, relying upon the aforesaid contract, and in full faith that said Dry-Goods Co. would comply with its terms on their part he returned to the state of Iowa, and sold his real estate therein, and a portion of his personal property, to enable him to comply with his part of said contract, and to enable him to remove to the aforesaid lands contracted for, and make his future home thereon, and that said sales so made by him were made necessarily at a very heavy sacrifice; and with his family, and with the balance of his personal property, he removed to this county, to make his future home on said lands; and if he cannot now obtain the title to said land, so as aforesaid contracted for, he will suffer irreparable injury. Plaintiff further states that said Dry-Goods Co., in utter disregard and violation of their said contract, did, within said thirty days, contract with defendant W. G. Fare to sell said land to him; and, in fulfillment of said contract with said G. W. Fare, said Dry-Goods Co., on the 20th day of January, A. D. 1886, executed a deed conveying the fee of said land to defendants G. W. Fare and Mary E. Fare, his wife. That the title so conveyed to said defendants G. W. Fare and Mary E. Fare was by them taken, and is by them now held, for the sole use and benefit of the defendant W. G. Fare, who is now in possession of all of said real estate. That defendants G. W. Fare and Mary E. Fare paid to said Dry-Goods Co. the sum of two hundred dollars only, and executed their notes to said Dry-Goods Co. for the sum of two hundred and fifty dollars, the balance of the purchase price by them to be paid for said land; and by their deed of trust by them duly executed on the ____ day of January, 1886, and recorded on pages 524, 525, and 526 in Book F of Mortgages and Deeds of Trust, in the office of recorder of deeds in said county of Barry, they conveyed said land to one Wm. C. Hornbeak, in trust, to secure the payment of said notes to said Dry-Goods Co., and that said Hornbeak never accepted said trust, and no consideration passed from him, and that no other consideration than the securing the payment of said notes to said Dry-Goods Co. ever passed to said G. W. Fare and Mary E. Fare for the execution of said deed of trust, and that said Hornbeak has no interest whatever in said land. That a large part of said land is in actual cultivation, and the rents and profits thereof is worth ($500) five hundred dollars per year. Plaintiff further states that the defendants G. W. Fare and Mary E. Fare, his wife, and W. G. Fare had full knowledge of the contract and agreement in writing, so as aforesaid executed by said Dry-Goods Co. to the plaintiff, at and...