Hart v. Handlin

• Decision Date: 31 January 1869
• Citation: 43 Mo. 171
• Parties: THOMAS J. HART, Plaintiff in Error, v. J. B. HANDLIN, Defendant in Error.
• Court: Missouri Supreme Court

43 Mo. 171

THOMAS J. HART, Plaintiff in Error,

v.J. B. HANDLIN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

The facts of the case sufficiently appear in the opinion of the court.

Gordon & White, for plaintiff in error.

I. The payment of the two notes mentioned in the answer of defendant is a condition precedent to the making of the deed of conveyance.

II. The answer does not negative the fact that the contract could be substantially complied with. (3 Pars. on Cont. 400.) Nor does the answer aver that a third party was using, or ever had or would use or assert the right to use, the pretended right of way on said stairs, or that the removal of the pretended right was essential to defendant. (Cassamajor v. Strode, 8 Eng. Ch. R. 201.)

III. The answer should have shown that defendant offered to retire from said contract in a reasonable time after he discovered the pretended defect in title. (Ferguson v. Sawyer, 1 Wood. & Min. 147-9; Hogart v. Scott, 4 Eng. Ch. R. 432; 5 id. 504; 2 Pars. on Cont. 780-2, and note z.)

IV. Defendant's answer does not set out facts to show that the pretended easement or right of way was such a damage to the building that he could not have been compensated in damages. The rule is, not to rescind a contract where compensation in damages can be made. (1 Blackst. R. 273-278; Bogart v. Bost, 3 Eng. Ch. R. 543; 2 Kent's Com. 471.) The answer does not set up the fact that it would have been out of defendant's power to have discovered the pretended defect in title if he had made the proper inquiry; and it was his duty to examine for himself, and not to have relied upon the representations of plaintiff. (Greeley v. Smith, 3 Sto. R. 659, 695, 696; Mason v. Crosby, 1 Wood. & Min. 352, 353; 2 Pars. on Cont., new ed., 769, 770, note; 3 id. 400, note, 402.)

V. The contract is only to be rescinded where a large portion of the estate cannot be conveyed or it would be inequitable to do so. (Jones v. Martin, 6 Eng. Ch. R. 68; Luckett v. Williamson, 31 Mo. 59.) A mere hardship or difficulty will not suffice to prevent a performance of a contract. (2 Pars. on Cont., new ed., 672.)

VI. The defendant should have averred in his answer that he not only bought, being ignorant of the right of way mentioned, but that plaintiff knew of the defect of title and failed to disclose it. (McFarland v. Carver, 34 Mo. 197.)

Owens & Wood, and Ewing & Smith, for defendant in error.

I. The answer is a good defense to the petition. It alleges fraud and a failure of consideration of the note. It sets up that, by the agreement of the parties, a good warrantee title was to be made upon the payment of the purchase money. Now, if it can be shown that the vendor, at the time of sale and at the time of the payment of the purchase money, was not seized of an indefeasible title to the realty bargained for, and cannot make a good title, then that is a good defense to the note, or to suit for the purchase money. (Pecan v. Chouteau, 13 Mo. 527.)

II. “An agreement to convey land by deed of general warranty amounts to an engagement that the party so agreeing has or will have an indefeasible title;” and if, in a suit for the purchase money, it can be shown that he has not such title, he can not recover, and under the proper allegations and proofs the contract may be rescinded. False representations, and inability on the part of plaintiff to make good the title, if proven, would be sufficient. (Luckett v. Williamson, 31 Mo. 54.)

III. This is an executory contract, and this defense may be maintained. (Taylor v. Johnson, 19 Texas, 251; Cooper v. Livingston, 19 id. 260; Hunt v. Reynolds, 20 id. 595; Hunt v. Blackburn, 20 id. 595; Littlefield v. Tinsley, 22 id. 259; Gibert v. Peteler, 38 Barb. N. Y. 488; Sugd. on Vendors, 210.)

IV. The defendant had the right to pay the purchase money and rely on his covenants for title, or to take steps to rescind the contract. (Reese v. Kink, 29 Ala. 406.)CURRIER, Judge, delivered the opinion of the court.

The plaintiff sues to recover the sum due on a promissory note executed by the defendant. The answer admits the execution of the note, but for defense avers in substance that it was given in part payment of certain real estate in the town of California, which, as the answer alleges, the defendant was induced to buy upon the representation of the plaintiff that his title to the property was perfect and unencumbered; that the defendant, in ignorance of the facts, and relying upon the plaintiff's representations, made the purchase February 15, 1866, taking the plaintiff's title bond therefor, by which the plaintiff covenanted to give to the defendant a deed of general warranty on the payment of the purchase money in full; that $1,000 of the purchase money was paid down, and two notes of $1,000 each, payable in one and two years, were given for the balance, the note in suit being one of them; that the plaintiff's title was in fact at the time defective, and that it has since continued to be so defective, in this, that a third party had and still holds a right of way over the premises to a certain stairway, and over the stairway through a building on the premises; that the exclusive use of this stairway was the principal inducement to the purchase; that the consideration of the note in suit has therefore failed, and that he cannot be compensated in damages for the alleged injury. The answer concludes with a prayer for a decree rescinding the contract of purchase and canceling the notes, and for a reimbursement of the cash payment of $1,000.

It appears from the counter claim forming a part of the answer that the defendant entered into the possession and enjoyment of the premises March 10, 1866. When he first came to a knowledge of the existence of the alleged right of way does not appear, but it is alleged that the defendant has not been able to enjoy the exclusive...