Greer v. Scearce

• Decision Date: 25 January 1944
• Docket Number: Civ. No. 142.
• Citation: 53 F. Supp. 807
• Parties: GREER v. SCEARCE.
• Court: U.S. District Court — Western District of Missouri

53 F. Supp. 807

GREER v. SCEARCE.

Civ. No. 142.

District Court, W. D. Missouri, St. Joseph Division.

January 25, 1944.

COPYRIGHT MATERIAL OMITTED

Ben Phillip (of Culver, Phillip, Kaufmann & Smith), of St. Joseph, Mo., for plaintiff.

C. Bruce DuBois, of Grant City, Mo., and J. F. Allebach, of Albany, Mo., for defendants.

DUNCAN, District Judge.

Plaintiff is a resident and citizen of the State of Kentucky. Defendants are residents of Missouri. The suit is brought under Section 400, title 28 U.S.C.A. The amount involved is in excess of $3000. There is no dispute as to the facts.

Prior to his death Ellis A. Scearce and his sisters, Louise S. Greer, the plaintiff, and Susan S. Shoemaker and Anna Laura Johnston were the owners of certain lands in Clinton County, Missouri, which they inherited from their deceased father, each being the owner of an undivided one-fourth interest therein.

In October 1942 Ellis A. Scearce and his three sisters entered into a written agreement, the part of which we are concerned with defining the value of the interest of the parties and the order in which the options created shall be exercised, is as follows:

"It is further agreed that the said Ellis A. Scearce shall have the right and option of purchasing the remainder of said lands hereinabove described as Tracts 2, 3 and 4, on condition that on or before December 1, 1943, time being the essence of this contract, he pays the sum of $12,172.50 to each of the other parties hereto, and it is expressly agreed that if he fails to pay said amount to each of the said parties on or before said last named date, that then his right and option to purchase said property under this agreement shall cease. It is further agreed that should the said Ellis A. Scearce fail to purchase and pay for said land on or before December 1, 1943, as herein agreed, that then the other three parties to this agreement shall, jointly and severally have the right and option of purchasing said lands on the basis of said lands having a total value of $48,690.00 and shall pay the sum of $12,172.50 to each of the parties hereto not joined in said purchase; that in case said parties hereto other than the said Ellis A. Scearce, or any of them, fail to exercise said option given to them to purchase said lands on or before February 1, 1944, time being the essence of this contract, then their right to do so shall terminate. * * *

"If the said Scearce shall not purchase said lands under the option herein granted him, then he shall surrender possession of said premises to the first parties on the last day of February, 1944. However, should he purchase said lands under the option granted him, then in lieu of the rentals to be paid by him for the use of said lands during said farm year beginning March 1, 1943 he shall pay to each of the other parties hereto interest on the amount coming due them as the purchase price of their respective interests in said lands at the rate of 4% per annum from March 1, 1943, to the date of the purchase of said lands by him.

"At the time of the execution and delivery of this contract the parties hereto other than Ellis A. Scearce have executed quit claim deeds to the said Scearce in which deeds the respective husbands of said parties have joined, and the said Ellis A. Scearce has executed a quit claim deed in which his wife has joined, conveying his right, title and interest in said lands to the other parties hereto, and it is agreed that said deeds, together with a counter-part of this agreement, shall be delivered to the First National Bank of Plattsburg, Missouri, to be held in escrow. In case of the exercise by and of the parties hereto of the option given the said Ellis A. Scearce or the other parties hereto to purchase the interest of the other parties in said land, then on the payment of the amounts agreed upon herein, said Bank shall deliver said deeds to the party or parties entitled thereto under this agreement and return the deed or deeds not so delivered to the party or parties executing the same, who have not become the purchasers of said lands."

Under the terms of the contract Ellis A. Scearce was given the right to purchase the interests of his three sisters on or before December 1, 1943. In the event of the failure of said Ellis A. Scearce to exercise his option within the designated time (time being the essence of the contract), the three sisters jointly were given the right to purchase the interest of Ellis A. Scearce, or in the event of the failure of the three sisters jointly to purchase the interest of Ellis A. Scearce, any one of the three sisters was given the right to purchase the interest of the other three owners. Ellis A. Scearce lived upon the land and cultivated it.

In the contract the parties agreed upon the total value of all of the lands which was in several tracts, and fixed that value as $48,690, and they also agreed upon the value of the individual interest of each of the undivided owners and fixed that value as $12,172.50. Following the execution of the contract, the parties executed quitclaim deeds and placed them in escrow with the First National Bank of Plattsburg, Missouri, for delivery in accordance with the written agreement.

On November 2, 1942 Ellis A. Scearce died intestate and without issue, and without having exercised the option to purchase. On October 30, 1943 and within the time fixed by the agreement, the defendant Anna B. Scearce as administratrix of the estate of her deceased husband Ellis A. Scearce, and in her capacity as his surviving widow, elected to exercise said option, and notified the other parties in writing of her intention and made tender to each of them of the sum of $12,172.50, the amount agreed upon as the value of each individual interest prior to the death of Ellis A. Scearce. Each of the three parties upon whom the notice of intention to exercise the option was served, declined to accept the tendered sum and to deliver or authorize the delivery to the defendants a deed conveying her interest.

Following the service of the notice as aforesaid, and on November 8, 1943 the plaintiff filed this suit against defendants praying a declaratory judgment defining the rights of the plaintiff and the defendants under said contract. Shortly after the filing of this suit, the defendants filed a suit in the Circuit Court of Clinton County, Missouri, in which they joined all parties who had any interest in the contract or in the property with respect to which the contract was executed. The petition was in two counts. In the first count the plaintiff prays: "the decree, order and judgment of this court finding that the option contained in the said contract dated October 19, 1942, wherein the defendants Susan S. Shoemaker, Anna Laura Johnston and Louise S. Greer agreed to sell the lands described in this petition to Ellis A. Scearce or his heirs, representatives and assigns, has been exercised by the plaintiff Anna B. Scearce, Administratrix of the estate of Ellis A. Scearce, deceased; that the defendant First National Bank of Plattsburg, Missouri, a Corporation, be directed to deliver all deeds, whereby the lands described in this petition were conveyed to Ellis A. Scearce, to the plaintiff Anna B. Scearce, Administratrix, the said deeds now being held by said Bank as Escrow Agent pursuant to the authority contained in said contract of October 19, 1942; that the rights and interests of the parties hereto in and to said real estate be determined and that all of such rights be settled, equalized and adjusted; that an accounting be had between the parties hereto for the purpose of equalizing and adjusting the interests of the plaintiff Anna B. Scearce, widow, and the defendants Susan S. Shoemaker, Anna Laura Johnston and Louise S. Greer in and to the lands herein described and that each of said persons be required to assume their respective proportionate and equitable shares, in the exercise of said option and that each of the owners of said lands be required to pay in cash their respective shares or in lieu thereof that a lien be impressed on the interests of the defendants Susan S. Shoemaker, Anna Laura Johnston and Louise S. Greer in said lands, for any and all amounts found to be due and owing by any of said persons by the accounting, and for such other and further relief as to the court shall seem meet and just in the premises."

The prayer in the second count of the petition is as follows: "Wherefore plaintiffs pray the court that it will by its judgment and decree determine the rights and interests of the parties hereto and to said real estate and that it will settle, equalize and adjust the rights of the sole parties hereto and that if homestead interests be awarded to Anna B. Scearce, widow, that the same be set off and admeasured; that the lands described in this petition be partitioned, and if partition cannot be made in kind that said lands be sold and the proceeds apportioned according to the respective rights of the parties hereto as found by the Court and for such other relief as to the Court may seem just and proper and for the costs of this suit, including a reasonable attorneys' fee."

Thereafter defendants filed their amended motion duly verified, to "dismiss in this court on the grounds that indispensable parties were not joined and that another suit covering the same subject-matter is pending in another court." That motion set out in full the petition filed in the Circuit Court of Clinton County, and the notices of her intention to exercise the option to purchase served on plaintiff and Susan S. Shoemaker and Anna Laura Johnston.

Defendants contend in their motion to dismiss and in the brief which they have filed, "that Susan S. Shoemaker and Anna Laura Johnston are necessary parties plaintiff, and that if they were joined as plaintiffs * * * they being residents and citizens of the State of Missouri * * * this court would be without jurisdiction." The latter...