Fidelity Loan Securities Company v. Moore
| Decision Date | 22 December 1919 |
| Parties | FIDELITY LOAN SECURITIES COMPANY, Appellant, v. WILLIAM C. MOORE |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
Herman Pufahl and W. F. Zumbrunn for appellant.
(1) The assignee of a written contract for the sale or purchase of land can maintain in his own name a suit for specific performance. 36 Cyc. 758. (2) Specific performance is not one wholly resting in the discretion of the court, but one to be exercised by a just and reasonable discretion and not in an arbitrary or capricious manner. Kirkpatrick v Pease, 202 Mo. 493; Evans v. Evans, 196 Mo. 23; McCall v. Atchley, 256 Mo. 54; Beheret v Myers, 240 Mo. 77; Edwards v. Watson, 258 Mo 646. (3) Specific performance will lie in given cases; defendant's demurrer confessed all well pleaded facts and therefore the trial court exercised its discretion in an arbitrary and capricious manner and not in a just and reasonable way.
In Banc
This is an action by an assignee of a vendor of certain Texas real estate, to specifically enforce the contract. Petition was filed in two counts. The first count was a simple action at law upon a promissory note. The second count was in equity for the specific performance of a certain contract pleaded and set out in haec verba in the petition. Demurrers were filed to both counts of the petition. The court overruled the demurrer to the first count, but sustained the demurrer to the second count. Thereupon the plaintiff dismissed the first count, and elected to stand upon the second count. Judgment in accordance was rendered against the plaintiff, and from such judgment this appeal was taken to this court. The sufficiency of the second count is the matter here for determination. The demurrer to this count reads:
The second count of the petition with which we are concerned is a bill in equity seeking to enforce the specific performance of a contract. The contract, set out verbatim in the petition, is between the White Star Land Company, a corporation, and William C. Moore, the defendant, and by its terms the White Star Land Company agrees to sell and convey to Moore a tract of land of 76,627 acres, described, in Hidalgo County, Texas, together with certain water rights.
The consideration for the purchase provided in the contract was $ 13,409.50. This amount was made up as follows: $ 7,400 was represented by a note, due on demand, executed and delivered at the execution of the contract. The purchaser assumed and agreed to pay $ 3,061.50, which was represented by vendor's lien notes against the property. There were seven of said notes set out in the contract for $ 514.50 each, the first maturing on the first day of January, 1915, and one maturing each year after that until 1921. Also, the purchaser assumed and agreed to pay the sum of $ 2,408 represented by vendor's lien notes, five in number, of $ 481.60 each, the first due and payable on the first day of September, 1915, and one on the first day of September each year after that until the last one should fall due in 1919.
The contract provided that the Star Land Company, on or before the sixth day of July, 1914, or within a reasonable time thereafter, provided all notes theretofore matured shall have been fully paid, would cause to be delivered to the purchaser a warranty deed, to take effect as of the date of the contract conveying said land to the purchaser, "with all water rights, titles and privileges incident or appurtenant thereto," etc.
The Star Land Company was also to deliver to the purchaser a copy of an abstract showing a good, merchantable title to said land, vested in the grantor in said deed. The purchaser was allowed thirty days for the examination of the abstract and the presentation of objections to it, and a reasonable time thereafter was allowed to remedy any defects found in it.
The purchaser further assumed and agreed to pay all taxes and legal assessments upon said land for the year 1914 and thereafter, and water rental charges, etc., from the first day of January, 1915.
If the purchaser should fail to comply with the provisions of the contract and fail to pay any of the notes or refuse to accept the abstract and deed when tendered, it is provided that "this agreement may at the option of the White Star Land Company, or owner of said land, without notice, be terminated, and thereafter the same shall be null and void, and of no further force and effect," and the money and notes already received, as aforesaid, should be forfeited as liquidated damages for failure to carry out the contract.
If the purchaser should default in the payment of any note, or any part thereof, then all the sums mentioned in the contract would, at the option of the White Star Land Company, become due and payable. A vendor's lien was expressly retained and reserved upon the land to secure each and all the payments mentioned in the contract.
There is this stipulation:
"This agreement is made subject to the disapproval of the owner of said land herein agreed to be sold and conveyed, and should such owner disapprove same, then this agreement shall become null and void, in which event all payments made and notes given by purchaser are to be returned to purchaser."
This further stipulation is found in the contract, pleaded in haec verba, as aforesaid:
"It is agreed between the parties hereto, that in case of dispute, or in case of litigation to enforce any of the provisions of this contract, or any note herein mentioned, then the notes herein mentioned and this contract shall be construed and interpreted and given force and effect of and by virtue of the existing laws of the State of Texas, as interpreted by the courts of said State."
After setting out the contract the petition alleges that at the time of its execution and delivery the defendant William C. Moore, pursuant to the terms thereof, executed and delivered to the Star Land Company his note for $ 7,400, payable on demand, dated June 6, 1914, and set out a copy of the note. On the back of the note was a provision that at the option of the maker the note might be paid by the conveyance of a tract of land situated in South Dakota, subject to an incumbrance on same. The petition alleged that the plaintiff demanded the payment of the note after it fell due or the conveyance of the South Dakota land, and defendant refused to comply with any of the terms and conditions of the contract.
The petition then alleged that the plaintiff purchased the said note of $ 7,400 and the contract from the White Star Land Company, and the assignment by which the transfer was made is set out; that thereby the plaintiff became the owner of the note and the contract, and stood ready, able and willing fully to comply and liquidate the terms of said contract.
It is further alleged that the defendant failed to pay the note for $ 7,400 on demand and failed within a reasonable time to comply with the terms of the contract; failed to assume the vendor's lien notes mentioned and refused to comply with any terms or conditions of said contract, "although plaintiff has at all times been ready and willing to comply with the said contract and perform all the obligations and conditions therein contained, and has tendered and now tenders to the defendant warranty deed for said land in accordance with the provisions and terms of said contract and offers to perform all obligations devolving upon it by the terms thereof."
The petition then alleges that the plaintiff has no complete and adequate remedy except in a court of equity and prays for a specific performance of the contract and that the defendant be required to pay the $ 7,400 note and interest and the sum of $ 514.50, representing the first note assumed and falling due on the first day of January, 1916; and that the said defendant be further required to assume the payment of the residue of the $ 3,061.50 incumbrance against said land and be required to satisfy all interest and notes maturing prior to the final trial of this cause, and that the rights of the plaintiff and defendant be by the courts fixed and determined and adjudicated herein.
The record does not show the theory upon which the trial court sustained the demurrer. In the brief of appellant it is stated that the original petition was amended by the addition of the second count, and it is this amended petition which is involved here. This perhaps accounts for one of the grounds of the demurrer. It is also stated in the brief:
"The record is absolutely silent as to the reason the trial court held the demurrer to be well taken as to the second count in the petition, but inasmuch as this court will probably assume the reason that existed, we might say, that the oral statement given by the trial judge to counsel upon the hearing of the demurrer was that the contract in question lacked the elements of mutuality and that specific performance was one in all events resting in the discretion of the court and that therefore he would sustain the demurrer as to...
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