Jamison v. Van Auken

• Decision Date: 01 March 1919
• Docket Number: No. 19584.,19584.
• Citation: 210 S.W. 404
• Parties: JAMISON v. VAN AUKEN.
• Court: Missouri Supreme Court

210 S.W. 404

JAMISON v. VAN AUKEN.

No. 19584.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Rehearing Denied March 28, 1919.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Bill by William D. Jamison against Frank Van Auken. Decree for defendant, and plaintiff appeals. Reversed and remanded, with directions.

This is a bill in equity, consisting of two counts, the first asking for a reformation of a written contract by which the plaintiff agreed to sell to the defendant 1,270 acres of land situate in the county of Lincoln and state of Missouri, and the second prays for the specific performance of the contract as reformed; it also asks that the plaintiff be subrogated to the rights of the Elsberry Banking Company and the People's Bank of Troy, Mo., to have certain deeds of trust conveying certain portions of said land to secure $7,227, which the defendant assumed to pay by the terms of said contract, as part of the contract price, which he failed to do when due, by reason of which the plaintiff was compelled to pay in order to protect said lands from sale under said deeds of trust.

The trial resulted in a decree for the defendant, and the plaintiff duly appealed the cause to this court.

Because of the unusual issues presented in this case by the pleading and evidence, it is thought best to state the substance of petition and answer and the finding and judgment of the court.

The petition, in substance, stated:

"That the plaintiff, on and prior to June 4, 1913, was the owner of, and had a good and merchantable title and in possession of, the following described real estate, situate in Lincoln county, Mo., to wit: All of fractional section 2, township 51, range 2 east, except 31 acres in the northeast corner thereof; all of section 11, township 51, range 2 east; and all of the east half of section 14, township 51, range 2 east.

That on said 4th day of June the plaintiff agreed to sell to the defendant, and the latter agreed to purchase, all of said lands at the following prices: For all of said lands in said section 2 at the price and sum of $45 per acre, and for all of said lands in said section 14 at the price and sum of $50 per acre.

Plaintiff further states that the lands above described are situated within the boundaries of the Elsberry drainage district, and that at the time of making said agreement the said Elsberry drainage district had surveyed and located over and in said lands certain ditches, drains, and waterways, and that the location, extent, and area of such ditches, drains, and waterways were well known and understood by said defendant, and that the plaintiff and the defendant, in agreeing upon and estimating the value and price to be paid for said land, took into consideration the location, extent, and area of said ditches, drains, and waterways, and the damages to be assessed and paid by said Elsberry drainage district therefor, and agreed that said defendant should pay for all of the lands above described, including the area covered by such ditches, drains and waterways at the prices per acre as above stated, and take such lands subject to such right as the said Elsberry drainage district had or might thereafter acquire in the lands covered by said ditches, drains, and waterways as surveyed and located, and that in lieu and place of the lands so covered by said ditches, drains, and waterways the defendant should receive from said Elsberry drainage district all damages assessed and paid therefor, and the plaintiff says that said defendant has received and accepted the damages so allowed and paid by said Elsberry Drainage District on account of said ditches and drains and waterways.

Plaintiff says that the contract as written and signed by plaintiff and defendant (a copy of which is attached hereto), the original not being in the possession or control of the plaintiff, does not express the whole agreement made by the plaintiff and defendant, in that it fails and omits to recite and set out the agreement so made between the plaintiff and the defendant as above stated; that is, that defendant was to pay plaintiff for all of said lands, including the quantity covered by said ditches, drains, and waterways, at the prices per acre as above stated, and take the same subject to whatever right the said Elsberry drainage district had or might thereafter acquire therein, and that the failure and omission to incorporate and insert the same in said written contract was occasioned by the mutual mistake and oversight of the parties and of the scrivener in the preparation and writing of said contract.

Wherefore plaintiff prays that said contract so written and signed as aforesaid be reformed so as to conform to and express the true intention and agreement of the parties as above stated, and for such other relief as to be consistent with the facts.

Plaintiff, for the second count and cause of action herein, states that the contract so signed by plaintiff and defendant, referred to in the first count of this petition, provides that the lands described in the first count of the petition, and so contracted to be sold by plaintiff to defendant, should be surveyed by the surveyor of Lincoln county, Mo., and the quantity in each of the tracts as found by such survey to be the basis by which to ascertain and determine the aggregate amount of the purchase price of said lands, and that in pursuance to said provision the plaintiff did on the __________ day of __, 1913, cause said lands to be surveyed by the county surveyor of Lincoln county, Mo., and the quantity thereof found as follows: All of fractional section 2, township 51, range 2 east, except 31 acres in the northeast corner thereof, containing 304.42 acres; all of section 11, township 51, range 2 east, containing 635.91 acres; and all of the east half of section 14, township 51, range 2 east, containing 329.64 acres.

That the total or aggregate value of said lands at the prices per acre in accordance with said survey was the sum of $57,223.10.

Plaintiff says it is further provided in said contract that plaintiff should make a general warranty deed to said land, and deliver the same to John M. Gibson & Son, to be held in escrow, subject to the completion of said contract, and to furnish defendant with an abstract showing a good merchantable title to said land on or before September 1, 1913, `at which time, upon the receipt of said abstract, it was stipulated and agreed that said defendant would make a further cash payment to the plaintiff on the purchase price of said lands of the sum of $5,000, and would assume as part of the purchase price of said lands whatever indebtedness there was on said lands, and would make to plaintiff a promissory note due five years after June 4, 1913, with 6 per cent. compound interest thereon, secured by deed of trust on said land for the remainder of the purchase price of said land, after deducting the cash payments and the assumed indebtedness against said lands.

Plaintiff says that at the time of making said contract there were debts against said land secured by deeds of trust, and which the defendant under said agreement assumed the payment of as a part of the purchase price of said land, as follows: To the Northwestern Mutual Life Insurance Company the sum of $10,000, secured by deed of trust on the following parts of said land, viz., the west fractional half of section 11, township 51, range 2 east, and the southeast fractional quarter of section 14, township 51, range 2 east; to Mollie B. Anderson and Lou Boone the sum of $3,000, secured by deed of trust on the following parts of said land, viz., the northeast quarter of section 14, township 51, range 2 east; to the People's Bank of Troy and the Elsberry Banking Company of Elsberry, Mo., each the sum of $3,566.50, or $7,133 to both, secured by the deed of trust on the following parts of said land, viz., all of fractional section 2, township 51, range 2 east, except 30 acres in the northeast corner thereof; and to R. L. Goode the sum of $7,000, secured by deed of trust on the following parts of said land, viz., the east fractional half of section 11, township 51, range 2 east; and it is further agreed in said contract that defendant shall pay all taxes or assessments, state and county, levee or drainage district taxes levied against said lands during the year 1913 and all subsequent years.

Plaintiff says that he made and executed a general warranty deed to said lands to the defendant, and delivered the same to John M. Gibson & Son, to be held in escrow until the completion of said contract, and that said deed still remains in the hands and control of said John M. Gibson & Son in escrow; but plaintiff says he is not advised, and does not now know, whether the deed so made by him and held by said John M. Gibson & Son contains all the assumptions, exceptions, reservations, and conditions as agreed to between the plaintiff and defendant or not; and if said deed does not contain such assumptions, exceptions, reservations, and conditions, as agreed to by plaintiff and defendant, he offers and tenders and prays to be permitted now to make such deed as will conform to the true intention and agreement between the plaintiff and defendant.

Plaintiff further states that, in pursuance to the requirement of said contract, he furnished said defendant with an abstract of title to all of said lands, and that the title thereof, as shown by said abstract and the proofs submitted therewith and as a fact, is a good merchantable title.

The plaintiff further states that the defendant entered into the possession of all of said lands under said agreement about June 4, 1913, and has ever since remained in the absolute control and possession thereof, receiving all the rents and profits thereof.

Plaintiff further says that the defendant on September 2, 1913, paid to plaintiff the further cash sum of $7,200 on the purchase price of said lands, and...