Farrington v. Tourtelott

• Decision Date: 02 September 1889
• Citation: 39 F. 738
• Parties: FARRINGTON et al. v. TOURTELOTT.
• Court: U.S. District Court — Western District of Missouri

39 F. 738

FARRINGTON et al. v. TOURTELOTT.

United States Circuit Court, W.D. Missouri, Western Division.

September 2, 1889

Crittenden McDougal & Stiles, for plaintiffs.

Pratt McCrary, Ferry & Hageman, for defendant.

PHILIPS J.

This is a bill for specific performance of a contract respecting the sale of certain real estate situated in the west bottoms of Kansas City, Mo. The contract provides, among other things that--

'The sellers are to furnish, within five days from the date hereof, a complete abstract of title to said property from United States government, and such usual certificates as may be required by the buyer as to judgments and mechanics' liens; * * * and the buyer to have twenty days for the examination thereof. * * * If, upon examination, it is found that the sellers have a good title in fee to said property they are to execute and deliver to the buyer, or order, a general warranty deed thereto, properly executed, and free and clear of all liens and incumbrances whatsoever, except only such as are to be assumed by the buyer.'

To the original bill filed herein the respondent interposed as a defense that at the time of the making of the contract there was, and now is, an incumbrance on the real estate in the form of an easement in favor of the Missouri Pacific Railway Company, as assignee of one George Fowler, for laying down and maintaining a railroad track thereon for a period of 20 years, which said track has been built, and is now in use thereon. To avoid this allegation of the answer the complainants have filed an amended bill, in which, among other things, it is alleged, in avoidance of said alleged incumbrance, that during the negotiations for the purchase of said premises the complainants and respondent went upon said property, and made a personal examination and inspection of the same; that said respondent saw and understood that said strip was being used for said railroad right of way; that he was informed of the length of time said easement was to exist; and that respondent understood and regarded said railroad track for switching purposes to be a valuable privilege, greatly enhancing the market value of said premises; and that said fact, so known to the purchaser, was the inducement which finally led him to the agreement; and that it was the chief consideration of the purchase thereof at the agreed price; and that in drawing the written contract no mention was made of said grant or right of way for the reason that it was well known and understood at the time by all the parties to greatly enhance the value of said premises. To this amended bill the defendant demurs, for the reason that in it complainants have undertaken to contradict and vary the terms of a written contract, and for other general grounds.

If the controlling question raised by this demurrer were res novo the conclusion which my sense of right and justice would reach would probably conflict with what seems to be the current American authority. Accepting as true the allegations of the amended bill, the respondent (vendee) contracted for the property after personal inspection of the premises. He saw the railroad track through it, and bought the property because in his opinion this railroad switch enhanced the value of the purchase. To the common sense of mankind it would therefore seem to be a solecism-- a contradiction in terms--to say that the purchaser could be heard to assert that that was an incumbrance-- a burden-- in diminution of the value of the thing bought, which was regarded by both parties as an inducement to the purchase. The best recognized definition, perhaps, of the term 'incumbrance' is that given by PARSONS, C.J., in Prescott v. Trueman, 4 Mass. 630: 'Every right to or interest in the land granted to the diminution of the value of the land, but consistent with the passing of the fee of it by the conveyance. ' The diminution of the value of the land...