Greffet v. Willman

• Decision Date: 06 February 1893
• Citation: 114 Mo. 106,21 S.W. 459
• Parties: GREFFET v. WILLMAN.
• Court: Missouri Supreme Court

21 S.W. 459

114 Mo. 106

GREFFET v. WILLMAN.

Supreme Court of Missouri, Division No. 1.

February 6, 1893.

LAND CONTRACT — SPECIFIC PERFORMANCE — ADMINISTRATOR'S SALE — WILL.

1. A contract for the sale of land, one fourth cash, balance on time, required a "complete abstract of title to be furnished, to be followed by warranty deed, conveying the grantor's title as shown by the abstract," and provided that, "should the title prove defective beyond remedy, then this contract to be void," and the earnest money refunded. Held, that the contract was not one for the future sale of the premises on condition that the vendor should furnish the vendee a satisfactory abstract of title, but a contract for the present sale of the land at and for the price therein stated, to be paid and secured in the manner therein provided, when the vendor should deliver a warranty deed conveying good title.

2. In an action by a vendor to enforce the specific performance of a contract, which was to be void if his title should prove defective "beyond remedy," the question is not whether the vendor complied with the requirements of defendant's counsel in respect to the abstract, or whether the abstract, in and of itself, showed an unquestionable title, but whether the title which the vendor tendered was a good title in all material respects, and such as the vendee ought in equity and good conscience to be compelled to accept.

3. A probate court, which has ordered a sale of decedent's land for the payment of debts, does not lose jurisdiction until a sale has been actually consummated; and its approval of the administrator's report that the land had been knocked off to the highest bidder, and that he was willing to comply with his bid on approval of the court, does not prevent it from ordering a resale on such bidder's refusal to comply with the terms of his bid.

4. A will devising land to testator's daughter, with power to dispose of it with the consent of her mother and brother, and, on her death, to her children, vests the daughter with a life estate only, with power to dispose of the fee with the consent of her mother and brother, and, if not so disposed of, then, on her death, the fee is to go to her children, if any, and, if none, to her heirs.

5. After the death of a nephew, leaving as his only known heir an uncle on his mother's side, the uncle's title by descent cannot be objected to on the ground of a bare possibility that the nephew's father may have left as near kin as such uncle, when the father was of foreign birth, and left no father, mother, brother, or sister him surviving, so far as family reputation is concerned, and that no such relative ever turned up, though the father has been dead for 40 years and the nephew 25 years.

Appeal from circuit court, Buchanan county.

Bill by Julius E. Greffet against Reinhold Willman for the specific performance of a contract for the sale of land. From a decree in defendant's favor, plaintiff appeals. Reversed.

Huston & Parrish, for appellant. Hall & Pike, for respondent.

BRACE, J.

This is an action in the nature of a bill in equity to enforce the specific performance of the following contract: "Received, St. Joseph, Mo., March 30th, 1889, from Reinhold Willman, five hundred ($500.00) dollars, part payment for the purchase money for the northeast one fourth of the southeast one fourth of section number six, (6,) in township number fifty-seven, (57,) range number thirty-five, situated in Buchanan county, Missouri, this day sold to him for fifteen thousand ($15,000.00) dollars, payable as follows: One fourth cash, of which the five hundred dollars paid is a part; the balance of said cash to be paid within ten days after delivery to said purchaser of a complete abstract of title to said property, showing good title. The said five hundred dollars is deposited with John Donovan, Sr., of St. Joseph, Mo. The deferred payments are as follows: Three notes for thirty-seven hundred and fifty dollars each, payable in two, three, and four years, respectively; said notes to be secured by a deed of trust, carrying a vendor's lien on the property, and to draw interest at the rate of six per cent. per annum, payable annually, and evidenced by interest coupon notes bearing eight per cent. interest after their maturity. Complete abstract of title to be furnished, to be followed by a warranty deed conveying the title of the grantor, as shown by said abstract. Should the title prove defective beyond remedy, then this contract shall be void, and the five hundred dollars hereby paid shall be paid to Reinhold Willman. All taxes for 1889 and subsequent years to be paid by purchaser. I will guarantee to pay the costs of getting an abstract to the amount of twelve dollars, and, in case of a full and completed sale, I will pay Messrs. Richmond, Casey & Co. a regular real-estate commission at the rate of two and one half per cent. on the entire sale; commission amounting to three hundred and seventy-five dollars. In case of a failure of a complete sale, I can return said amount of bonus money, — five hundred ($500.00) dollars, — and pay costs of abstract herein guaranteed, and not be charged with further costs or commissions whatsoever. Julius E. Greffet." Upon which said instrument in writing the said defendant then and there indorsed the following, to wit: "I accept the within bargain. Reinhold Willman."

It appeared from the evidence that within a few days after the contract was made an abstract of the title to the premises was furnished, as contemplated in the contract, to the defendant, and by him submitted to his attorneys, who, on the 4th of April, 1889, returned the abstract to the plaintiff's agent, with eight written requirements to be complied with before the title shown by the abstract would be approved by them. Subsequent consultations seem to have followed between the parties and their agents and attorneys, which resulted in the following conclusion reached by the defendant's attorneys, addressed to defendant's agent: "St. Joseph, Mo., April 26, 1889. Dr. J. Francis Smith: From what Mr. Greffet's agents and attorney have shown us, we think he can so far comply with our requirements upon Hedenberg's abstract of the `Roy land,' as to show that Louis Roy died seised thereof in fee. They claim to be able to establish the following facts, not appearing on record: (1) That Louis Roy and Bridget McKee were the only descendants of Jean Baptiste Roy and Cecile Roy. (2) That Bridget had but one child, a son, who was killed at the battle of Shiloh, April 5th or 6th, 1862, and that said Bridget survived her said son, and died before her brother Louis; that she was divorced from McKee, who has since died; that she remarried, and her second husband is also dead. Under the will of Jean Baptiste, one fourth of this land was devised to Bridget for life, with remainder to the heirs of her body. Upon failure of surviving issue, the one fourth reverted to the heirs of Jean Baptiste, viz. Louis Roy. The facts above indicated should be shown to our satisfaction. Title from Louis Roy is made to depend upon the validity of Lincoln's deed as administrator. This must be supported by a valid order of sale. An order was made in the spring of 1874 upon what appears to have been regular proceedings. A sale was made to Strong, reported, and confirmed. After a lapse of two or three terms, the court, upon the motion of the administrator, set aside the order of confirmation, and then ordered a resale. No further notice was given the heirs of Louis Roy, and we advise you that the court had no jurisdiction to make the order, and that this want of jurisdiction appears upon the face of the record of the proceeding. The deed from Lincoln being void, the title remains in the heirs of Louis Roy. Other requirements should be complied with, as explained heretofore." Upon the faith of this opinion the defendant declined to perform the contract, and when afterwards, on the 11th of June, 1889, the plaintiff tendered him a warranty deed, executed and acknowledged by plaintiff and his wife, Rosalie Greffet, purporting to convey the premises to him in fee simple, he declined to accept the same, whereupon the plaintiff, on the 21st day of June, 1890, instituted this suit.

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