In re First National Bank of Adrian
| Decision Date | 02 May 1921 |
| Citation | 230 S.W. 358,207 Mo.App. 115 |
| Parties | In Re FIRST NATIONAL BANK OF ADRIAN, MISSOURI, Petitioner: DAVID DALTON, Interpleader, Respondent, v. B. W. CAUTHON, Interpleader, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Bates County.--Hon. Charles A Calvird, Judge.
REVERSED AND REMANDED (with directions.)
Judgment reversed and cause remanded.
Silvers & Silvers for respondent.
D. C Chastain and L. C. Crouch for appellant.
It was further alleged by said interpleader that under the provisions of said contract said $ 1,000 should be forfeited in case the buyer failed to comply with the contract, and that said interpleader having complied with all the terms of said contract on his part was entitled to said sum of $ 1,000.
Interpleader Dalton filed his interplea alleging that he was at all times ready, willing and able to comply with the terms of said contract; that said Cauthon refused to comply with his part of the contract, having failed to furnish said interpleader within thirty days from the date of the contract a satisfactory abstract of title to the property, and failed to furnish said interpleader evidence as to the non-existence of judgments, mechanic liens and taxes on the 1st day of March, 1920, when by the terms of said agreement the sale was to be consummated; that said Cauthon failed to convey to said interpleader the real estate by a sufficient warranty deed showing the property to be free and clear of all liens and encumbrances thereon on the 1st day of March, 1920. Said interpleader then alleged that he purchased the real estate at $ 125 per acre and on the basis that it amounted to 292 acres less a drainage right-of-way containing 6.34 acres; that said Cauthon fraudulently caused the draftsman of said contract to calculate the purchase price at $ 125 per acre for the whole 292 acres without deducting the value of the land contained in said right-of-way. We might say here that there was no evidence of fraud. There was a trial before the court which resulted in a judgment for interpleader Dalton and interpleader Cauthon has appealed.
The facts show that on the 8th day of September, 1919, Dalton and Cauthon entered into a written contract, which was drawn by one L. R. Allen, cashier of the First National Bank of Adrian, wherein Cauthon agreed to convey to Dalton certain land described by sections and as "containing in all 292 acres, more or less, except the right of way of ditches of the Grand River Drainage District at and for the price and sum of $ 36,500." $ 1,000 of the purchase price was to be deposited by Dalton with the First National Bank of Adrian, the balance to be paid on or before March 1, 1920, as follows: $ 10,000 in cash "and deferred payment by note, secured by trust deed on said land, which is to be a first lien on said land." Dalton agreed to pay the drainage assessments due after the 1st day of March, 1920. Cauthon agreed to furnish within thirty days a satisfactory abstract of title and such evidence as might be required by the buyer as to the non-existence of judgments, mechanic liens and taxes up to the 1st day of March, 1920. The contract further provided that if on examination it was found that the seller had a good title, he was to execute a warranty deed to the land free from all encumbrances except such as were assumed by the buyer, and the buyer was to pay the balance of the purchase money and execute a deed of trust "on or before March 1st, 1920." The contract further provided that if the title was found to be defective and such defects were note remedied by the date set for closing the deal, then the contract should be null and void and the sum of $ 1,000 deposited with the bank was to be returned to the buyer; that "If, though, the title is good and the seller has kept his part of the contract and said buyer fail to comply with its requirements on his part then the aforesaid deposit of $ 1,000 shall be forfeited;" that the sale should be consummated by March 1, 1920.
In accordance with the contract Dalton deposited $ 1,000 with the First National Bank of Adrian. Cauthon had his abstracts certified to September 18, 1919, which certificate also included the statement that there were no judgments, mechanic liens or taxes except a deed of trust for $ 11,000. The abstracts were turned over to Dalton and the latter turned them over to his attorney, Judge Silvers, for examination. The examination was completed on September 23, 1919. Judge Silvers raises several points of objection in reference to the title. The abstracts and his opinion were then turned over by Dalton to Cauthon who immediately took them to his attorney, Judge Crouch. The latter on October 4, 1919, wrote a letter attempting to answer the objections raised by Judge Silvers, stating to Cauthon that he had a good merchantable title and that the same was shown by said abstracts. Cauthon returned the abstracts and letter to Dalton who took them and deposited them in a bank at Archie where they remained until March 3, 1920, when Cauthon secured them.
We think there is no question but that the great weight of the evidence shows that Dalton accepted the title in October, 1919, without further procedure. Cauthon testified that when he received the abstracts and Judge Silvers' opinion from Dalton the latter said, "The Judge says I have a good title to the land, all right, nobody could take it from you, if these minor objections were corrected, it would be all right;" that he brought the abstracts to the office of his attorney, Judge Crouch, and told him that he wanted to furnish a good abstract and that Judge Crouch examined the abstract and said that the objections of Judge Silvers were minor objections and wrote a letter setting forth his views, which Cauthon delivered to Dalton with the abstract. A few days afterwards Dalton came to Cauthon's place and said that the title "was in me (meaning Cauthon) and that he was ready to go down and have the deed put up." They arranged to have the deed delivered at the Adrian bank on October 22, 1919. Cauthon and his wife went to the bank on said day and signed and acknowledged the deed. Dalton had been to the bank but had gone to attend a sale. Cauthon saw him the next day at the bank. Dalton had talked to him over the phone and had asked him to come to the bank. When Cauthon arrived there Dalton said that he wanted the deed and asked Cauthon to direct the bank to deliver it to him. Nothing was said about the title. Cauthon refused to allow Dalton to take the deed upon the payment of the $ 1,000, which Dalton wanted done. Cauthon asked Dalton if he accepted the abstracts and he answered "Yes, sir, I told you I did." Cauthon did not see the abstracts any more prior to the first day of March, 1920. Dalton moved on the farm in November, 1919, taking charge of part of it.
Cauthon further testified that during the last week of January, 1920, while Dalton was still upon the farm, the latter raised the first objection to the title made after the delivery of Judge Silvers' opinion. He then stated to Cauthon that there was a judgment for $ 2300 against the property. Cauthon explained to him that there was no judgment against the property, that this amount represented drainage assessments and advised him to go to Harrisonville, the county seat, and look the matter up. Dalton told Cauthon in January or February that if the latter did not pay the judgment he would not close the deal. Dalton also objected to the deed saying "292 acres, more or less." Cauthon further testified that he did not attempt to comply with any of the objections made by Judge Silvers because Dalton had accepted the title.
Cauthon further testified that Dalton notified him prior to the first day of March, 1920, that he was not going to take the farm that on March 1, 1920, he went to the bank at Adrian about eleven o'clock in the morning, that he saw Dalton there but did not talk to him about business; that he remained there until about 3:30 and that he told Mr. Allen, the cashier of the bank, that if Dalton wanted to settle according to the contract to call him (Cauthon) at Archie, a near-by town. The note and deed of trust for $ 11,000 against the property was at the bank at Archie. The evidence shows that Cauthon could have paid it off on that day; that he had the money wherewith to pay and that the...
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