Everett v. Marston

• Citation: 186 Mo. 587,85 S.W. 540
• Parties: EVERETT v. MARSTON et ux.
• Decision Date: 21 February 1905
• Court: United States State Supreme Court of Missouri

85 S.W. 540

186 Mo. 587

EVERETT v. MARSTON et ux.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

STIPULATION AS TO FACTS — AUTHORITY OF ATTORNEY — MUNICIPAL IMPROVEMENTS — SPECIAL ASSESSMENTS — LIEN — TIME OF ATTACHING — CONTRACT OF SALE — CONSTRUCTION.

1. An attorney may bind his client by admissions dispensing with formal proof of facts.

2. Under the direct provisions of Kansas City Charter, art. 9, § 18, special tax bills are not liens on adjacent property, or property in the special tax district, until they are receipted for to the board of public works; and until that time special taxes for paving a street are not included in a contract to sell adjacent land by a clause that the vendor "agrees to pay all paving taxes in full," though the paving was completed at the date of the contract.

3. A special assessment for street paving which had not become a lien on land at the date of the contract of sale is not included in the vendor's agreement to pay "all state, county, and general municipal taxes."

4. Under the provision of a contract for the sale of a lot that the vendor would execute and deliver a good and sufficient deed to the property, "free and clear of all liens and incumbrances of every kind," the vendor is not liable for a street-paving tax which had not become a lien on the lot at the date of the contract.

5. Where a contract for the sale of a lot provided that the vendor "agrees to pay all state, county and general municipal taxes which are now due and payable, and to pay all special taxes and assessments which are now liens on said property," except specified assessments, a separate clause, written at the bottom of a contract, that the vendor "agrees to pay all paving taxes in full," did not require the vendor to pay a paving assessment which did not become a lien until after the date of the contract.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Leonard Everett against Edwin S. Marston and wife. From a judgment for plaintiff, defendants appeal. Reversed.

Flower, Peters & Bowersock, for appellants. Willard P. Hall, for respondent.

GANTT, J.

This is a suit in equity to compel a specific performance of a written contract, of date July 12, 1901, for the sale and conveyance of lots 5 and 6 of Springfield Park, an addition to Kansas City, Mo. While the action is against Mr. and Mrs. Marston, it is conceded by both parties that Mr. Marston was merely the trustee holding the title for the Farmers' Loan & Trust Company of New York, which had acquired the lots by foreclosure of a loan thereon.

The contract out of which this controversy originated is as follows:

"This contract, made and entered into this 12th day of July, 1901, by and between Fidelity Trust Company, the seller, of Jackson county, Mo., and L. Everett, the buyer, of Pottawattamie county, Iowa.

"Witnesseth: The seller has bargained and sold to the buyer the following described real estate, situate in the county of Jackson, state of Missouri, to wit, All of lots five (5) and six (6) of Springfield Park, an addition to the city of Kansas, now Kansas City, Mo., as the same are shown on the recorded plat of said addition, at and for the price and sum of five thousand dollars, to be paid as follows: One hundred dollars at the signing of this contract, the receipt whereof is hereby acknowledged by the seller, and which is deposited with Crutcher & Welsh as part of the consideration of the sale, and the balance whereof is to be payable in the following manner, to wit: Forty-nine hundred dollars at the time of the delivery of the deed as herein provided.

"The seller agrees to pay all state, county and general municipal taxes which are now due and payable, and to pay all special taxes and assessments which are now liens on said property, excepting tax bills issued by the city of Westport for sewers and other public improvements (not including park, boulevard and Paseo assessments) and all installments of park, boulevard and Paseo assessments, which are now due; state and county taxes for 1901, and all subsequent taxes are to be assumed and paid by the buyer.

"The buyer has the option of taking assignment of insurance policies now on said property, and to pay therefore the amount of the pro rata unearned premium from the date of delivery of deed, to the expiration of said policies.

"The seller is to furnish within ten days from the date hereof, a complete abstract of title to said property from U. S. Government to the present record title, with such usual certificates as may be required by the buyer as to taxes, general and special condemnation proceedings, judgments and mechanics' liens, from the various courts in which judgments would be liens thereon; and the buyer is to have ten days for the examination thereof, and for submitting to the seller a memorandum of such requirements as he may consider necessary to perfect the title.

"If the title be found to be defective the seller agrees to have the defects rectified within a reasonable time, which is not to exceed thirty (30) days from the date at which the transfer of the property is to be consummated, under the terms of this contract, but, in case such defects in the title cannot be cured or remedied within that period, and no extension of time is had between the parties, this contract is to be null and void, and the said sum of $100.00 deposited as aforesaid, is to be returned to the buyer.

"If, though, the title be good and the seller has kept its part of this contract, the buyer fails to comply with its requirements on his part, within ten days after being furnished with the abstract of title, then the aforesaid deposit of $100.00 shall be forfeited to the seller, but for this cause this contract shall not cease to be operative as between the parties hereto.

"If upon examination it is found that the seller has a good title in fee to said property, it agrees to execute and deliver to the buyer or order, a good and sufficient deed thereto, properly executed, free and clear of all liens and incumbrances of every kind, excepting only such as are to be assumed by the buyer hereunder, and concurrently, herewith, and as a part of the same transaction, the buyer to pay the balance of the agreed cash payment. Seller does not agree to pay or warrant against special tax bills issued by Westport, Mo., afterwards declared invalid, and later reissued by Kansas City, Mo.

"Time is, and shall be, the essence of this contract, and the sale and transfer of said property according to the provisions hereof, shall be consummated within the time specified above.

"In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written.

                  "Executed in duplicate
                       "Fidelity Trust Co., Agt. [Seal.]
                            "By Henry C. Brent
                       "Leonard Everett
                

"Seller agrees to pay all paving taxes in full."

There is no dispute that the Fidelity Trust Company of Kansas City was the duly authorized agent of the Farmers' Loan & Trust Company for the sale of the property, and that Mr. Henry C. Brent was the authorized officer of the Fidelity Trust Company to sign the contract of sale in its behalf. After the execution of the contract, the plaintiff, Mr. Everett, selected the Land Title Guarantee Company to examine the abstract for him and to pass upon the title, and sent said guaranty company the balance of $4,900 to pay over and accept the deed if the title was satisfactory. The abstract was satisfactory, and thereupon the Farmers' Loan & Trust Company caused Mr. Marston and wife to execute a warranty deed, and sent it to the Fidelity Trust Company to complete the trade. About the middle of August, 1901, Mr. Kelly Brent, in behalf of Crutcher & Welsh, a real estate firm through whom the sale was brought about, took the deed to Mr. Stroeh, of the abstract company, and said to him: "Here is the deed for the property. You pay the taxes on the land, and give me a check for the balance. Thereupon Mr. Stroeh said to Mr. Kelly Brent: "Now, since the last report here is $400 more taxes [referring to some special taxes for the paving of Oak street]. Do you want me to pay that out of the money?" To which Mr. Brent replied: "No; I don't know anything about that. Give me the deed back." The deed was returned to him, and he took it back to his firm. Thereupon Mr. Henry C. Brent, for the Fidelity Trust Company, on August 17, 1901, reported to the Farmers' Loan & Trust Company, by letter of that date, that at the date of the making of the contract the special taxes for paving and sidewalks were all paid up, but since that time special taxes for paving Oak street, amounting to $410, had been issued, and that there would shortly be issued special taxes of about $125 for sidewalk on Oak street; making a total of $535 special taxes which were not against the property at the time the contract was made. He also advised that Mr. Everett, the purchaser, claimed that under the contract the Farmers' Loan & Trust Company should pay these extra taxes. Mr. Brent gave it as his opinion that technically Mr. Everett was right, but that, if the loan company was not willing to do so, he supposed they could nullify the contract. Having obtained by wire a copy of the contract, on August 24, 1901, the Farmers' Loan & Trust Company advised the Fidelity Trust Company that, in its opinion, Mr. Everett's claim was groundless; that it understood the written clause, "Seller agrees to pay all paving taxes in full," to mean all paving taxes up to date of the acceptance of the offer. Later, on the 4th of September, 1901, the Farmers' Loan & Trust Company refused to pay these Oak street special taxes and to deliver the deeds. Thereupon plaintiff made a formal tender of the $4,900, and demanded a deed, which was refused, and this suit was brought for specific performance. The property in suit is on the corner of Thirty-First and Oak streets, in Kansas...