Hansen v. Ryan

Decision Date02 April 1945
Docket Number39217
Citation186 S.W.2d 595
PartiesRudolph Hansen, Plaintiff in Error, v. J. M. Ryan, Rhuel E. Routh, Leola M. Routh, James Lester Deck, and Hazel H. Deck, Defendants in Error
CourtMissouri Supreme Court

From the Circuit Court of Jasper County Civil Appeal Ray Watson Judge



Dalton C.

Writ of error to the circuit court of Jasper County to review a judgment in favor of defendants.

The action was in equity to establish that a certain written contract for the purchase of described real estate in Greene County was valid and in full force and effect, and to set aside and cancel certain specified subsequent conveyances of the described property. The cause went on change of venue to the circuit court of Jasper County, where the parties in open court entered of record a stipulation for the disposition of the cause, the particular disposition being dependent upon the occurrence of certain events therein stated. Thereafter, pursuant to the stipulation, and upon the happening of an event therein specified, the court entered a judgment cancelling the contract, dismissing plaintiff's petition and discharging the defendants.

Plaintiff in error contends that the "stipulation * * * did not authorize the court to render a judgment of any kind" that the Judgment, as entered on the stipulation, was not responsive to the stipulation or to the pleadings; and that the judgment did not determine all of the issues as to all of the parties. Accordingly, a review of the pleadings, stipulation and judgment is required.

Plaintiff alleged that, on December 23, 1941, he entered into a written contract with defendants John O. Fox and Josephine Fox, his wife, to purchase described real estate in Greene County for $5,100; that he paid $700 on the purchase price when the contract was executed; that the contract provided for additional payments on December 15th of 1942, 1943, 1944 and 1945, and the balance, with six percent interest, on December 15, 1946; that the vendors executed "a warranty deed in blank" to the described lands; that the deed and contract were placed in escrow with the Union National Bank of Springfield, Missouri; that plaintiff had been advised that the vendors had sold and assigned their interest to defendant J. M. Ryan, and Ryan had procured the deed and contract from the bank and had declared the contract cancelled; that the vendors or Ryan, assignee, had placed the names of defendants Rhuel E. Routh and Leola M. Routh, his wife, as grantees in the said deed and had recorded it; and that defendants Routh and wife had subsequently conveyed the described property to defendants James Lester Deck and Hazel H. Deck, who were claiming ownership of the described lands and demanding possession thereof.

Plaintiff further alleged that he had been in possession of the described lands, claiming ownership, since January 15, 1942; that he had entered the military service of the United States on July 24, 1942; and that defendants had conspired to defraud him of said lands and deprive him of his rights under article three (3) Section 301, subsection one (1) of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended in 1942.

Plaintiff prayed that the written contract for the purchase of the described real estate "be restored in full force and effect"; that it "be declared a valid contract"; and that the deeds for the subsequent conveyance of the property be declared null and void, and be cancelled.

Defendant Routh and wife and defendant Deck and wife filed a joint answer. They admitted that plaintiff had contracted to purchase the described lands from defendant Fox and wife, as alleged, and then alleged the following facts, to wit, that the contract had forfeiture provisions; that plaintiff, prior to entering the military service had defaulted in the performance of the contract by failing to pay the December 15, 1942, installment of principal and certain interest and taxes; that a forfeiture of the contract was authorized under the facts and had been declared; that the Soldiers' and Sailors' Civil Relief Act was not applicable; that defendant Routh and wife had purchased in good faith from the owner and assignee of the contract; that Routh and wife had conveyed to Deck and wife in good faith; that plaintiff had been discharged from military service in April, 1943; that he had taken no action to indicate any intention to keep the covenants of the contract of purchase; and that he had not paid or tendered the delinquent sums due under the contract. The defendants then asked an adjudication that plaintiff had forfeited all rights to a performance of the contract; that the action of Ryan in declaring the contract cancelled for plaintiff's default be confirmed; and that the deeds be declared in full force and effect.

By reply, plaintiff alleged that the "contract or escrow agreement was duly recorded in the office of the recorder of deeds of Greene County"; that defendants had notice thereof; and that plaintiff alone was authorized to insert the names of grantees in the deed. Plaintiff admitted that the contract had provisions for cancellation in case of "default in the payment of principal or interest and said payment remains in default for 30 days," but he averred he had not waived his rights under the Soldiers' and Sailors' Civil Relief Act.

The separate answer of defendant J. M. Ryan contained a general denial and an admission that the contract had been assigned to him as trustee and as security for a loan advanced to a purchaser of the contract from Fox and wife, but alleged that, after plaintiff defaulted on the contract, defendant Ryan had requested and secured the deed and escrow agreement from the bank, had been repaid his loan, and had delivered the deed and contract to the then owner thereof. He disclaimed all interest in the property.

By reply, plaintiff denied that defendant Ryan acted as trustee for the true owner of the contract and alleged that defendants Fox and wife had, by an instrument in writing, sold their interest in the contract to defendant Ryan.

Thereafter, plaintiff dismissed the cause as to defendants Fox and wife, and on February 17, 1944, the remaining parties to the suit entered into the following stipulation of record. "It is stipulated and agreed by and between the parties, plaintiff and defendants herein, as follows: That the plaintiff owes the defendants the sum of $981.29 on the original contract pleaded in plaintiff's petition, the same representing two principal payments of $200 each, one of which was due in December, 1942, and the other was due in December, 1943, and two interest payments on the balance due on said contract amounting to $264 for the year 1942, and a like amount for the year 1943, and for an additional amount of $53.29, representing the 1942 and 1943 taxes on said real estate.

"It is further stipulated and agreed by the parties hereto that this cause shall be, with the consent of the Court, continued for a period of thirty days from this date. That if within that time the plaintiff has paid and discharged the amount due on said contract as hereinbefore set forth that the Court shall then enter by agreement a judgment restoring the original contract executed between the plaintiff and John O. Fox, and Josephine Fox, his wife, and also cancelling and setting aside the deed executed by John O. Fox and Josephine Fox, his wife, to Rhuel E. Routh and Leola M. Routh, his wife, * * * and also cancelling and setting aside the deed executed by Rhuel E. Routh and Leola M. Routh, his wife, * * *

"It being further agreed that in the event the plaintiff has not been able to pay and discharge the amount agreed to be due on said contract as above set forth within said thirty day period, that the Court by agreement may enter a record that the contract or escrow agreement entered into between the plaintiff and John O. Fox and Josephine Fox, his wife, shall be cancelled and considered null and void."

On March 28, 1944, the court entered a judgment as follows "Now at this day this cause comes on for further hearing, and it appearing to the Court and the Court finding that when said cause was pending before the Court on the 17th day of February, 1944, the plaintiff and defendants entered into a stipulation in relation to said cause which was dictated to the reporter and made a part of the record of this Court, said stipulation being in manner and form as follows." (See stipulation set out, supra.) "And it further appearing to the Court that the plaintiff * * * has not paid and is not in a position to pay any portion of the sum of $981.29, referred to in the foregoing stipulation, although forty (40) days have elapsed since said stipulation was made, and the plaintiff appearing in person and by his counsel, and the defendants appearing in person and by their counsel, and all parties consenting that said matter may be taken up and disposed of by the Court, and after arguments of counsel for the plaintiff and the defendants, it appearing to the Court that plaintiff has failed to comply with the terms and conditions of the stipulation entered into before this Court by the parties hereto in February 17th, 1944, although forty (40) days have elapsed since said date, it is hereby ordered, adjudged and decreed by the Court that pursuant to the terms of said stipulation that the contract entered into between the plaintiff and John O. Fox and Josephine Fox, on the 23rd day of December, 1941, which is referred to in plaintiff's petition and in the answer of all of the defendants herein, be and the same is hereby declared cancelled and is rendered null and void, and is no longer binding upon any of the parties thereto. It is further ordered and adjudged by the...

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