Heintz v. Moore

• Decision Date: 30 November 1912
• Citation: 151 S.W. 449,246 Mo. 226
• Parties: HEINTZ v. MOORE.
• Court: Missouri Supreme Court

151 S.W. 449

246 Mo. 226

HEINTZ v. MOORE.

Supreme Court of Missouri. Division No. 1.

November 30, 1912.

1. ACKNOWLEDGMENT (§ 5) — CONTRACT OF SALE — RECORD.

Where a contract for the sale of land was not acknowledged by the grantor, though signed by her with the grantee who did acknowledge it, it was not entitled to record.

2. VENDOR AND PURCHASER (§ 231) — CONSTRUCTIVE NOTICE — INSTRUMENT IMPROPERLY OF RECORD.

The actual record of an instrument affecting the title to real estate and not entitled to record does not constitute constructive notice to subsequent purchasers.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by William Heintz against John Moore. From a judgment for plaintiff, defendant appeals. Affirmed.

Stevens & Braden, of Clayton, for appellant. Pearce & Davis, of St. Louis, for respondent.

GRAVES, P. J.

Plaintiff by his petition seeks to have the court ascertain and determine the title to a small tract of land in St. Louis county, Mo. Petition is in approved form under old section 650. Plaintiff is the immediate grantee by law from Annie E. Hiett, who is treated throughout as the common source of title.

By answer the defendant admits that the plaintiff was in possession of the property, and that he claimed an interest therein. He further set up what he alleged to be a contract of sale between him and Mrs. Hiett. Plaintiff now claims that the contract pleaded by defendant is not the one offered in evidence, and makes the point of a variance. This will meet with disposition in the opinion. Suffice it now to say that, whatever be the contract pleaded, the contract relied upon is in evidence, and, although rather long, had best be set out, inasmuch as its legal effect is strongly assailed by the plaintiff. The contract reads:

                             "Kirkwood, Mo., March 21, 1908
                

"Received from John Moore the sum of one hundred dollars earnest money and part purchase money for a certain parcel of improved property, lying in the county of St. Louis, state of Missouri: That tract of ground on the N. E. corner Geyer and Big Bend roads, contains about 12 acres, more or less, on which premises is situated house No. ____ which property is this day sold to ____ for the total sum of nine thousand ____ dollars payable as follows: $1500 cash, $1500 on or before six months, $1000 on or before 12 months, and subject to the deed of trust of $5000 now on the property, with interest on deferred payments to be secured by first deed of trust on said premises. The title to said property to be perfect and to be conveyed by warranty deed free from liens and encumberances, except taxes, both general and special for the year 1908, and thereafter, and the hereinbefore noted deed of trust which the undersigned purchaser agrees to pay. If the title be found imperfect and cannot be perfected with in a reasonable time, said purchaser is to be paid the cost of examining the title, not to exceed $25.00 dollars, and earnest money to be refunded. The sale under this contract to be closed within 10 days from date on or before April 1st. and if not closed by that time, owing to the failure or neglect of the purchaser to comply with terms herein, the earnest money is to be forfeited to the seller; but for this cause the buyer shall not be released from the fulfillment of his part of this contract, if so determined by the seller. This contract is subject to the approval of the owner, and also subject to restrictions now on said property. Sale under this contract, when approved by owner, to be closed at the office of Benjamine F. Thomas, Kirkwood, Mo.

"Accepted under the above terms and conditions. John H. Moore.

"I hereby approve the above contract and agree to pay Benjamin F. Thomas a commission of 5%. Annie E. Hiett.

"This receipt to be returned to this office on closing of purchase.

"State of Missouri, County of St. Louis — ss.: On this, 2nd of April, 1908, before me personally appeared John Moore to me known to be the person described in and who executed the forgoing instrument and acknowledged that he executed the same as his free act and deed. In testimony whereof, I have hereunto set my hand and affixed by official seal at my office in St. Louis county, the day and year first above written.

"My term expires May 2, 1909. J. G. Hawkens, Notary Public."

This contract was filed for record in the recorder's office of St. Louis county on March 3, 1908, and was duly recorded prior to the conveyance by Mrs. Hiett to the plaintiff. By oral proof it is made clearly to appear that Mrs. Hiett alone breached the contract, and that the defendant, Moore, did all that he could to comply with its terms. The cash...