Fulk v. Williams
| Decision Date | 31 March 1931 |
| Docket Number | 28802 |
| Parties | FULK et al. v. WILLIAMS et al |
| Court | Missouri Supreme Court |
Andrew D. Gresham and Walter J. Gresham, both of Platte City, for appellants.
James H. Hull, of Platte City, for respondents.
Action to determine interests in, and to partition, three hundred and fifteen acres of land in Platte county. From a judgment denying partition, plaintiffs appealed.
Plaintiffs' petition alleges that defendants Penelope Williams, Leonard C. Smith, Alice E. Smith, and Margaret B. Smith were the owners as tenants in common of said three hundred and fifteen acres of land; that on September 18, 1926, defendant Penelope Williams and his wife, R. E. Williams, entered into a written contract with plaintiffs, by the terms of which contract they sold and agreed to convey to plaintiffs a certain eighteen acres of said land; that by the terms of the contract said defendants were to have sixty days in which to convey said eighteen acres to plaintiffs, provided they could, by the exercise of due diligence, obtain the complete title to said eighteen acres from other persons who owned an interest therein, but, if unable to obtain the complete title thereto within sixty days, they were to have a reasonable time thereafter so to do; that plaintiffs paid said defendants the sum of $ 100 on the purchase price of said eighteen acres and took possession of said land; that defendants Penelope Williams and his wife have failed and refused to convey said land to plaintiffs as provided in said contract, although plaintiffs have been ready, willing, and able to pay the balance of the purchase price thereof, to wit, the sum of $ 950.
The prayer of the petition is that the interest of the respective parties be adjudged and determined, and that partition be made according to the interests so determined; that said eighteen-acre tract be set off as a part of the interest of defendants Penelope Williams and his wife, R. E. Williams, in order to protect the rights of plaintiffs, and that plaintiffs be permitted to pay said defendants the sum of $ 950.00, being the balance of the purchase price, and that said defendants Penelope and R. E. Williams be required to execute a warranty deed conveying said tract of land to plaintiffs and for such other relief as might be just and equitable.
The four cotenants answered denying that they refused to convey the eighteen acres to plaintiffs. Their answer affirmatively alleged the facts and circumstance tending to show why the execution of this conveyance was delayed but these allegations become immaterial, in view of the fact that the deed conveying the full title to plaintiffs was finally accepted by them.
At the beginning of the trial of the cause, a deed executed by all of the cotenants conveying the full title to the eighteen acres was tendered to plaintiffs. Upon tender of this deed plaintiffs' counsel, Mr. Gresham, moved for judgment as prayed for in the petition, on the ground that the tender of the deed was an act of partition.
After the tender of the deed and the motion for judgment the following occurred:
'Mr Walter Gresham: Plaintiffs move the court for judgment on the pleadings and upon the tender of deed, for the reason that the answer confesses in effect the right of plaintiffs to maintain this suit, and for the further reason that the tender of the deed is an act of partition itself, and plaintiffs are entitled to judgment for partition thereupon.
'The Court: The court rules that the tender of the deed by defendants to plaintiffs is an acknowledgment by the defendants that plaintiffs are entitled to the relief sought for in their petition asking for specific performance of the contract, and renders judgment accordingly, but the court finds that under the pleadings that the plaintiffs, under the deed tendered, having acquired all of the interest...
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