Ives v. Kimlin

• Decision Date: 03 January 1910
• Citation: 124 S.W. 23,140 Mo.App. 293
• Parties: GEORGE W. IVES, Respondent, v. B. F. KIMLIN, Interpleader, Appellant
• Court: Missouri Court of Appeals

124 S.W. 23

140 Mo.App. 293

GEORGE W. IVES, Respondent, v. B. F. KIMLIN, Interpleader, Appellant

Court of Appeals of Missouri, Springfield

January 3, 1910

Appeal from Crawford Circuit Court.--Hon. L. B. Woodside, Judge.

Reversed and remanded. (with directions).

Hall & Dane and Reeves & Lay for appellant.

(1) The subsequent agreement, if it bound Espenscheid to accept Harrison's judgment of the sufficiency of the abstract would be at fatal variance with the original contract and void under the Statute of Frauds. Hamilton v. Brewing Co., 125 Mo.App. 579; Miller v. Goodrich Bros., 53 Mo.App. 430; Rucker v. Harrington, 52 Mo.App 481; Warren v. Mayer Mfg. Co., 161 Mo. 112; Ringer v. Holzclaw, 112 Mo. 522; Harrison v Railroad Co., 50 Mo.App. 332. (2) James S. Paul and Henrietta Paul, claiming through a devise in a will which read "absolutely to them, their heirs, but if they should die without issue, then said real estate shall revert and vest in my heirs equally, or share and share alike," could not convey an indefeasible fee to Ives. Warvelle on Abstracts (3d Ed.), secs. 387, 397; Roberts v. Crume, 173 Mo. 579; Haverstick Appeal, 103 Pa. 394; Butler v. Huestes, 68 Ill. 594; Haley v. Boston, 108 Mass. 576; Pratt v. Railroad, 130 Mo.App. 175; Chew v. Keller, 100 Mo. 369; Beacroft v. Strawn, 67 Ill. 28; Rand v. Sanger, 115 Mass, 124; Frazer v. Supervisors Peoria Co., 74 Ill. 282; Blair v. Vanblarcum, 71 Ill. 290; R. S. Mo. 1899, secs. 4592, 4593, 4645, 4646; Bean v. Kenmuir, 86 Mo. 666; Harbison v. James, 90 Mo. 411; Munro v. Collins, 95 Mo. 33; Lewis v. Pitman, 101 Mo. 281; Redman v. Barger, 118 Mo. 658; Schorr v. Carter, 120 Mo. 409; Walter v. Dumtra, 152 Mo. 489; Yocum v. Siler, 160 Mo. 281; Sheppard v. Fisher, 206 Mo. 208; Grannon v. Albright, 183 Mo. 238; 67 L.R.A. 97; Tebow v. Dougherty, 205 Mo. 315. (3) Purchaser is not bound to accept a doubtful title, much less a title which is certainly bad. Green v. Ditsch, 143 Mo. 12. Berge v. Bock, 44 Mo.App. 69; thompson v. Dickerson, 68 Mo.App. 535; Mastin v. Grimes, 88 Mo. 490. (4) The record title must be clear. Thompson v. Dickerson, 68 Mo.App. 535; Warvelle on Abstracts (3 Ed.), sec. 318.

Harry Clymer and A. H. Harrison for respondent.

(1) The pretended abstract of the record does not sufficiently show the filing of a bill of exceptions. The mere recital that the bill was filed appearing in the bill itself is not sufficient, and this appeal should be dismissed. Western Storage & Warehouse Co. v. Glasner, 150 Mo. 426; Reno v. Fitz Jarrell, 163 Mo. 411; Kampf v. Transit Co., 102 Mo.App. 314; Walser v. Wear, 128 Mo. 653. (2) We understand the rule to be well settled that oral evidence is admissible to show a distinct, collateral, contemporaneous agreement, independent of, and not varying the terms of a written contract, even though it relates to the same subject-matter. Brown v. Bowen, 90 Mo. 190; Greening v. Steele, 122 Mo. 294; Lumber Co. v. Warner, 93 Mo. 384; Roe v. Bank, 167 Mo. 427; Boggs v. Laundry Co., 171 Mo. 290; Printing Co. v. Pub. Co., 127 Mo.App. 148; 9 Ency. of Evid., pp. 350, 359. (3) The original contract provided that an abstract of title was to be furnished, and it must necessarily follow that some one was to determine the sufficiency of such title. Thompson v. Dickerson, 68 Mo.App. 535; Estel v. Railroad, 56 Mo. 285; Dinsmore v. Livingston County, 60 Mo. 241; Neman v. Donoghue, 50 Mo. 495; Williams v. Railroad, 112 Mo. 487; Chapman v. Railroad, 114 Mo. 549; Howard County v. Baker, 119 Mo. 407; Eldridge v. Fuhr, 59 Mo.App. 53; Chapman v. Eneberg, 95 Mo.App. 327; Williams v. Railway Co., 153 Mo. 545; Rodgers v. Rehard, 122 Mo.App. 122; McCormick v. St. Louis, 166 Mo. 327.

OPINION

GRAY, J.

On the 15th day of April, 1908, plaintiff contracted in writing to sell his farm of about seven hundred acres, in Crawford county, to Samuel Espenchied, of Illinois. The price of the land was $ 9,000, and a lot situated in Salina, Kansas. The clause of the contract material to the issue, is as follows:

"The said party of the second part has this day deposited with the Crawford County Farmer's Bank, the sum of one thousand dollars which said sum is to be held by the said bank until the said party of the first part furnishes a full and complete abstract of the title showing a perfect title to said lands in the said party of the first part, and executes and deposits with said bank a general warranty deed conveying said farm to the said party of the second part, his heirs and assigns.

"The said party of the second part is to pay the balance of said purchase price of $ 8,000, on or before the 15th day of October, 1908."

It was claimed by the plaintiff that after the execution of this contract, and on the same day, there was a parol agreement between the parties, that one A. H. Harrison was to examine the abstract of title furnished by Ives, and when he had approved the same, the $ 1,000 deposited with the bank, was to be paid to the plaintiff.

In due time an abstract was made and delivered to Harrison, who failed to approve the title, as shown by the abstract and so notified Espenchied in writing. A short time after this notice, a letter was received from the attorney of Espenchied in Illinois, approving Harrison's objections to the title. After this letter had been received, Harrison instituted suits as attorney for Ives, to quiet the title to the lands, and also procured deeds from certain parties for the same purpose. About the 10th day of October, 1908, judgments were rendered in the circuit court of Crawford county, in the said suits so instituted by Harrison, and certified copies of these judgments were filed and shown in the abstracts with the deeds so procured and filed after Harrison's first examination. After these things had been done, Harrison approved the title and pronounced it good in Ives, and so notified the attorney for Espenchied.

June 1, 1908, Espenchied, in writing, signed all of his right in the contract with Ives to Kimlin, the appellant herein, and on October 16, the attorney for Kimlin wrote to Mr. Ives that he had examined the abstract and the title was not good, and charged that Harrison knew that the abstract was defective, and further stating that Mr. Kimlin had that day closed a deal for other lands, and would not buy Ives' property, for that reason, as well as the fact that he was to have a good title and the same had not been furnished, and also demanding the payment of the $ 1,000 deposit in the bank. This letter was received and Mr. Harrison was requested by Ives to write a letter to Mr. Kimlin, asking him to return the abstracts if he did not intend to complete the deal, and in reply thereto a letter was written by Kimlin's attorneys, stating that the abstracts were held subject to the order of Mr. Ives.

At the February term, 1909, Ives sued the Crawford County Farmers' Bank for the $ 1,000, stating his cause of action as follows: "And for his cause of action, the plaintiff avers that the defendant is indebted to him in the sum of $ 1,000 for and on account of money deposited with said defendant to be paid to this plaintiff on or before the 15th day of October, 1908." On the 15th day of February, the bank filed a petition asking that Ives and Kimlin be required to interplead for the money. Interpleas were filed by both of the parties, and the cause was tried on issues therein raised, resulting in a judgment in favor of Ives, from which Kimlin has appealed to this court.

The appellant questioned the sufficiency of the petition filed by Ives against the bank. We do not consider this material at this time. Both parties to the contract were claiming the $ 1,000 deposit with the bank and filed their interpleas therefor, and the cause was tried upon the issues thereby made.

The abstract, as perfected by Harrison, did not show a marketable title in Ives in the property, and therefore, did not comply with the terms of the contract entered into on the 15th day of April, 1908. The judgments of the circuit court attempting to perfect the title, show the suits were commenced against the unknown heirs of Putnam Trask, Josiah B. Trask, Franklin Askins, William J. Farrar, Marvin A. Dunlap, R. P. Dunlap, Andrew H. Trask, Henrietta Paul and Napoleon B. Trask, and, of course, notice was given by publication.

When Harrison approved the abstract, the evidence does not show that the term of court had adjourned, and even if it had, the parties defendants in that suit, under the provisions of sections 777 and 778, Revised Statutes 1899, had three years' time in which to appear in court and have the judgment set aside by showing a meritorious defense. And even though it be admitted that the judgment perfected the title as to all the parties named therein, yet the abstract shows that there were serious defects in Ives' title other than the ones attempted to be cured by the suits. The title to eighty acres of the land was in the following condition: One James Sanders, who owned the same, made a will on the 28th day of June, 1882, disposing of this tract of land as follows: "I do hereby give and bequeath unto my grandchildren, James S. Paul and Henrietta Paul, minor heirs of Martha L. Paul, deceased, the following described real estate, to-wit: The S.W. 1-4 of N.W. 1-4 and the N.W. 1-4 of the S.W. 1-4 of Section 26, Township 37, Range 3. Absolutely to them, their heirs, but if they should die without issue, then said real estate shall revert and vest in my heirs, equally, or share and share alike."

A warranty deed, dated June 1, 1883, from Martha H. Paul and James S. Paul, to Mr. Ives to this tract of land, was shown in the abstract. But the abstract did not show any conveyance from Henrietta Paul or that Martha H. Paul and Henrietta Paul were one...