Isaacs v. Skrainka

• Decision Date: 04 June 1888
• Citation: 95 Mo. 517,8 S.W. 427
• Parties: ISAACS v. SKRAINKA et al.
• Court: Missouri Supreme Court

8 S.W. 427

95 Mo. 517

ISAACS v. SKRAINKA et al.

Supreme Court of Missouri.

June 4, 1888.

1. SPECIFIC PERFORMANCE — DEFENSE OF FRAUD BY VENDOR.

In an action by the vendor for specific performance of a contract for sale of land, the vendee may defend by showing that the vendor falsely represented that the property was clear of tax liens, although the contract calls only for a quitclaim deed.

2. SAME — EVIDENCE.

Such defense is sufficiently proved where three witnesses testify that plaintiff so represented, although plaintiff and two witnesses, who were in a position to hear the conversation deny that such representations were made, and where it appears that plaintiff would agree to give only a quitclaim, not a warranty, deed, that defendants were to pay full value, that, at the time of making the contract, defendants were aware that work had been done for which tax bills could be issued, and that the tax liens for another year were considered by the parties in making the contract.

3. SAME — DECREE.

Upon judgment on appeal in an action for specific performance, reversing the judgment below for plaintiff because of false representations that the title to the land contracted for was clear when there were in reality tax liens against it, and holding that plaintiff is not entitled to specific performance so long as the property remains incumbered with the tax liens, the case will be remanded, and specific performance may be decreed if the title be perfected before judgment or decree.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge. Transferred from St. Louis court of appeals.

Action by Jacob L. Isaacs against William Skrainka and others for the specific performance of a contract. Judgment for plaintiff, and defendants appeal.

David Goldsmith, for appellants. Wm. C. Marshall and Collins & Jamison, for respondent.

BLACK, J.

This is a suit brought by Isaacs for the specific performance of a written contract, dated February 17, 1882, and signed by the parties therein named. The contract is in the following words: "William Skrainka and Claus Vieths agree to take all the property of J. L. Isaacs now proceeded against on special tax-bills in their favor, and against said property, before Justice Taaffe, and in the circuit court, city of St. Louis, at fourteen hundred dollars, and J. L. Isaacs agrees to convey to them said property by quitclaim deed for said sum." There were suits pending before the justice, and in the circuit court, to enforce tax-bills against 16 lots, owned by Isaacs. Skrainka and Vieths, the present defendants, were the owners of the tax-bills, and were the plaintiffs in those suits. One of the suits was on trial in the circuit court, under an agreement that the others should abide the result of that one. During the trial the contract in question was made in settlement of the pending litigation. About two weeks thereafter Isaacs tendered defendant a quitclaim deed, and demanded the $1,400; but defendant refused to accept it, and refused to pay the amount. Isaacs now tenders the deed with his prayer for specific performance. The substance of the defense is that there were other outstanding tax-bills against the property for other improvements, amounting to about $150; that Isaacs fraudulently concealed the existence of these tax-bills, and represented the property to be free from such liens. The contract sued upon was made under these circumstances: One of the defenses made by Isaacs in the tax-bills suits was that they amounted to more than the value of the property. He produced a witness who valued the property at five dollars per front foot, and thereupon the defendant proposed, in open court, to take the property at that price. The property has a frontage of 400 feet, making the offer $2,000. Isaacs accepted the proposition. The court took a recess until 2 P. M., to give the parties time to settle. Then defendants insisted that these tax-bills, amounting to about $1,400, should be deducted but Isaacs did not understand the proposition in that way, and the parties separated without coming to a settlement. After recess the attorneys undertook to settle the matter. Propositions were made and rejected, and finally these defendants agreed to give Isaacs $1,400 net for the property, and the foregoing contract was then executed. It is an undisputed fact that there were, at the date of the contract, other outstanding tax-bills against some of the lots, amounting to about $150, for improvements on Jefferson avenue. The evidence on behalf of defendants, as to the representation...