Henry v. Adkins

• Decision Date: 10 April 1917
• Docket Number: No. 17988.,17988.
• Citation: 194 S.W. 264
• Parties: HENRY et ux. v. ADKINS et al.
• Court: Missouri Supreme Court

194 S.W. 264

HENRY et ux. v. ADKINS et al.

No. 17988.

Supreme Court of Missouri, Division No. 2.

April 10, 1917.

Appeal from Circuit Court, Pemiscot County; Frank Kelley, Judge.

Suit by R. Y. Henry and wife against F. R. Adkins and others. From a decree for defendants, plaintiffs appeal. Affirmed.

This is a proceeding in equity whereby R. Y. Henry and his wife, Alice May Henry, seek to have specifically performed a contract for sale of land executed by O. C. Ashby and wife, as vendors, to the said plaintiffs, as vendees. Before this suit was instituted Ashby and wife sold and conveyed said land to F. R. Adkins and R. L. Ward, who were also made defendants in this proceeding. Trial was had before the circuit court of Pemiscot county, resulting in a decree in favor of the defendants and dismissing plaintiffs' bill. Thereupon plaintiffs duly appealed to this court.

The facts necessary to an understanding of the issues involved may be stated substantially as follows: It appears that the Ashbys and Henrys were residents of the city of St. Louis. Ward and Adkins were residents of Pemiscot county. One C. J. Hill, a dealer in real estate and residing in the city of St. Louis negotiated a sale of said land to the plaintiffs, and on January 5, 1911, the following contract was executed between the Ashbys and Henrys. The contract was written on a printed form of contract and blank portions of the contract were filled in. The italicized portions of the contract represent the portions which were filled in.

                              "St. Louis, Mo., Jan. 5, 1911
                

"Received of R. Y. Henry the sum of fifty no/100 dollars, as earnest, and part purchase money for certain real estate in the county of Pemiscot, as follows: The east half of the east half of the southeast quarter of section 32, and the southwest quarter of the southwest quarter and the south half of the northwest quarter of the southwest quarter of section 33, all in township 19, range 12 east, containing 100 acres and situated in Pemiscot county, Missouri. Which property is this day sold by O. C. Ashby and Ester Ashby, his wife to R. Y. Henry and his wife or their assigns hereof, for the sum of three thousand one hundred no/100 dollars, payable as follows: Cash. (In the meantime during the consummation of this deal the second parties have privilege to take possession of said property make improvements and be fully protected on any such improvements by first parties on or before March first 1911.)

"Title to said property, of record and in fact, shall be perfect, or such earnest money, with costs of examination of title, shall be repaid to the holder hereof by present owner.

"Taxes for the year 1911 and thereafter to be assumed by purchaser; otherwise said property shall be conveyed to purchaser by warranty deed, free from liens or other encumbrances.

"It is understood there is a dower relinquishment to be had from Mrs. Mitchell, by quitclaim deed to be obtained from her by the present owner.

"If title proves defective, but can be made good by present owner, within a reasonable time, he shall proceed, without delay, to cure such defects, and this contract shall remain in full force.

"Papers shall be exchanged, and payments made at the office of C. J. Hill, 808 Chestnut street, room 301.

"This sale be completed on or before the 1st day of March, 1911, and if not then concluded, for any cause except a defective title, this contract shall thenceforth be void and of no effect, and the parties hereto specially agree that such earnest money shall, in that case, become liquidated damages, in full consideration for this contract.

"Signed in duplicate the day and year first above written.

"Accepted upon the terms aforesaid.

                                "O. C. Ashby
                                "Esther Ashby
                                "R. Y. Henry
                                "Alice May Henry."
                

The above contract was acknowledged and recorded in the recorder's office of Pemiscot county.

It appears that the Ashbys were unable to procure a quitclaim deed from the Mrs. Mitchell mentioned in the above contract before the 1st day of March, 1911, and the parties in order to extend the contract and give the Ashbys further time to perfect the title did, on the 27th day of February, 1911, make a new contract, which was as follows. The italicized portions represent the portions which were filled into the printed form of contract.

                        "St. Louis, Mo., February 27, 1911
                

"Received of R. Y. Henry the sum of fifty ($50.00) no/100 dollars as earnest and part purchase money for certain real estate in the county of Pemiscot, Missouri, as follows: The east half of the east half of the southeast quarter of section 32, and the southwest quarter of the southwest quarter, and the south half of the northwest quarter of the southwest quarter of section 33, all in township 19, range 12 east, containing 100 acres and situated in Pemiscot county, Missouri. Which property is this day sold by O. C. Ashby and wife, to R. Y. Henry and wife, or their assigns, for the sum of three thousand one hundred no/100 dollars, payable as follows: Cash (with privilege of possession, improvements etc., in purchaser, as this is renewal of contract dated January 5, 1911, for the purpose of extending time as below to perfect title, but at any date the title is perfected by quitclaim deed or otherwise this contract is to be completed at once).

"Title to said property, of record and in fact, shall be perfect, or such earnest money, with costs of examination of title, shall be repaid to the holder hereof by present owner.

"Taxes for the year 1911 and thereafter to be assumed by purchaser; otherwise said property shall be conveyed to purchaser by warranty deed, free from liens or other incumbrances.

"A dower interest of a Mrs. Mitchell is to be had by quitclaim deed or otherwise through court proceedings by the present owner. And this contract is to remain in force until said title is perfected.

"If title proves defective, but can be made good by present owner, within a reasonable time, he shall proceed without delay to cure such defects, and this contract shall remain in full force.

"Papers shall be exchanged, and payments made at the office of C. J. Hill, 808 Chestnut street, room 301.

"This sale shall be completed on or before the 1st day of September, 1911, and if not then concluded, for any cause except a defective title, this contract shall thenceforth be void and of no effect, and the parties hereto specially agree that such earnest money shall in that case become liquidated damages, in full consideration for this contract.

"Signed in duplicate the day and year first above written.

"Accepted upon the terms aforesaid.

                                     "O. C. Ashby.
                                     "Esther Ashby.
                                     "R. Y. Henry.
                                     "Alice May Henry."
                

Mrs. Henry was the one mainly interested in the purchase of the land.

The husband of Mrs. Ruth Mitchell was at one time the owner of this land and conveyed the same, but Mrs. Mitchell had never relinquished her dower right therein. Repeated efforts were made to locate Mrs. Mitchell by both Ashby and a Mr. Gwin. Mrs. Mitchell's husband was a nephew of Mr. Gwin. It appears that Mr. and Mrs. Mitchell traveled extensively, one time Mr. Mitchell going to Russia as a horse jockey. Mrs. Mitchell was finally located at Urbana, Ohio, and, after considerable correspondence, she offered to make a quitclaim deed for the sum of $1,000. This was more than Mr. Ashby was willing to pay. Further negotiations were had, but nothing resulted therefrom prior to October 13, 1911, the date upon which Ward and Adkins purchased this land from Ashby.

In July, 1911, defendant R. L. Ward, who prior to that date had purchased the 120 acres adjoining this land on the west, was desirous of acquiring the land involved in this suit. Pursuant thereto he told Mr. Gwin that he would like to buy it, and asked Gwin to find out for him who owned it and at what price it could be purchased. At that time Gwin held a $1,000 indebtedness against the place, secured by deed of trust. Gwin ascertained that Ashby wanted $3,100 for the land. Ward then examined an abstract of title to the land which showed the above-mentioned contract between Ashby and the Henrys. Ward testified that he knew the land was levied upon under a judgment, and that he supposed that the Mrs. Henry mentioned in the contract was a sister of Ashby's, and that the contract had been made to shield Ashby from the judgment. Ward then prepared a warranty deed which was to be executed by Ashby and wife to himself and a quitclaim deed which he desired to have the Henrys sign. These deeds were sent through the bank, with draft attached. Later the deeds came back unsigned, and Ward then learned that Mrs. Henry was not the sister of Ashby, but...