Jenkins v. Wiley
| Decision Date | 31 July 1923 |
| Citation | 254 S.W. 94,300 Mo. 110 |
| Parties | L. C. JENKINS v. FRED E. WILEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.
Affirmed.
E. C Hall for appellant.
(1) The contract was conditional upon title being good, or that defects could be cured in thirty days after notice of objections, and the objections to the title, though frivolous, could not be removed in the time limited. Terte v. Maynard, 48 Mo.App. 463; 26 Am. & Eng. Ency. Law (2 Ed.) pp. 73, 74. (2) The joinder of Alice McClure as a defendant was wrong and prejudicial to defendant Wiley when there was no showing of collusion between him and Mrs. McClure. (3) The plaintiff refused to accept the title because of the McClure suit, and admitted that at the trial. Davis v. Petty, 147 Mo. 386. (4) The defendant expressly contracted against defects and there was no independent agreement to convey, the language being "That seller has sold and agrees to convey as herein provided," and, "If the title is defective in case such defects in the title cannot be rectified within that time (30 days) this contract shall be null and void." The defendant Wiley knew nothing of the McClure suit or claim when he signed this contract. Terte v. Maynard, 48 Mo.App. 468; Hartzell v. Crumb, 90 Mo. 638; Ramsey v. West, 31 Mo.App. 676; McQuary v. Mo. Land Co., 230 Mo. 342. If the purchaser in this case had been willing to accept the title that the vendor had, he might have demanded the title subject to the encumbrance which defendant could not remove, but the evidence shows that this he refused to do, and at the trial the plaintiff testified that he was not willing to accept the title subject to the encumbrance, so that even admitting the rule that the extension of time for perfecting the title is usually considered to be in favor of the buyer, yet if it is impossible to correct the title and the buyer is not willing to accept the title that the seller had there can be no specific performance, and the refusal of the buyer to accept the title stands in the way of his requesting a specific performance for the reason that it is his own fault that he hadn't received a deed for the title which the seller had. Hollman v. Conlon, 143 Mo. 369; Lanitz v. King, 93 Mo. 513. It is generally held that the specific performance is a matter of grace and not of right and rests in the discretion of the court. Hontz v. Hellman, 228 Mo. 655; McQuary v. Land Co., 230 Mo. 342; Dazly v. Lawrence, 153 Mo.App. 435; Otto v. Young, 227 Mo. 193. In this case the defendant Wiley cannot be compelled to make a warranty deed against all encumbrances for the reason that the plaintiff refuses to accept such deed. There can be no order of this court compelling defendant Wiley to remove the encumbrance found to be on the title for the reason that there is nothing on which to base a judgment of that kind. Under the pleadings in this case the court cannot decide the questions and issues raised in the case of McClure against defendant Wiley for the reason that no such issue was made in this case, there having been no consolidation of the causes. (5) The McClure suit was not a defect in the title and the plaintiff had no right to refuse to proceed further in the deal until that claim had been litigated. If he had taken his deed the McClures had no valid claim against him, unless collusion was shown between this plaintiff and defendant, and there was none either between this defendant and plaintiff or between defendant and Mrs. McClure and no notice lis pendens of record. Plaintiff's ground for refusal to accept the deed was untenable. Henry v. Adkins, 194 S.W. 264; Wayland v. Western Ind. Co., 148 S.W. 626. (6) There was a very material advance in the value of the property from the time the objections were made to February, 1920, when this suit was brought. Herein lies plaintiff's reason for bringing this action. O'Fallon v. Kennerby, 45 Mo. 124. (7) The plaintiff's bill failed to state facts sufficient to authorize injunctive relief or for specific performance of the contract. The fact that Mrs. McClure had filed a suit against defendant constituted no lien upon the property and showed no interest therein held by her. Though plaintiff alleges fraud none was shown on the trial and there was no allegation that defendant was insolvent. Coal Co. v. Long, 231 Mo. 605; Hollman v. Conlon, 143 Mo. 378; McCall v. Atchley, 256 Mo. 39. (8) There was no unity of interest between defendant Wiley and Mrs. McClure and no knowledge on the part of Mrs. McClure that the defendant had made a contract with plaintiff. In fact, the contract, while it bears date in August, 1919, was not signed by defendant until October, 1919. In the meantime Mrs. McClure had filed her suit, but defendant knew nothing about such suit. Defendant denied that he had made any contract with Mrs. McClure and was ready to make deed to plaintiff, but the plaintiff refused to accept a deed from him with the McClure suit undetermined. So it was plaintiff's fault that defendant did not convey the lot to him. There was no issue and no evidence touching the McClure suit upon which the decree could be based. Secret Service Co. v. Gill & Co., 125 Mo. 156. (9) Plaintiff cannot have specific performance where the performance was prevented by his own acts. Here the contract provided for a warranty deed, only if the title was good. The plaintiff insisted that the title was not good because of the McClure suit, and refused to take a deed from defendant. 26 Am. & Eng. Ency. Law (2 Ed.) p. 70; Secret Service Co. v. Gill & Co., 125 Mo. 156; Hollman v. Conlon, 143 Mo. 369.
Maurice J. O'Sullivan and Julius C. Shapiro for respondent.
(1) The contract sued on was not conditional upon defects being cured within thirty days. This provision is for the benefit of the buyer, and the seller cannot excuse himself from performance on that account. Otto v. Young, 227 Mo. 193; Hunt v. Smith, 139 Ill. 296. (2) The making of defendant, McClure, a party was proper, and the lower court properly entered its decree enjoining her from asserting any claim against plaintiff. Sec. 1158, R. S. 1919; Moore v. McCullough, 5 Mo. 145; Sprague v. Carroll, 188 S.W. 64. Defendant, Wiley, is in no position to complain of the adjudication of the McClure claim, without raising more than a suspicion of unclean hands. The defendant, McClure has not appealed, and thereby indicates satisfaction with the decree of the lower court. Wiley is directly benefited by the disposal of her claim. When in his brief, he attempts to carry the burden of his aunt, defendant Mrs. McClure, when she has not appealed, he strengthens the contention of the respondent that Wiley sought, advised, or procured the bringing of the McClure suit, in an attempt to discourage the plaintiff, so that he could obtain a better price. (3) A lis pendens was filed by Mrs. McClure, and her claim affected the title, so plaintiff's objections were not frivolous. Sec. 7215, R. S. 1919; Turner v. Babb, 60 Mo. 342; Ewalt v. Lillard, 180 Mo.App. 678; Rosencheim v. Hartsock, 90 Mo. 357.
This case fell to me upon the reassignment of some old cases at our present April term. Action for the specific performance of a real estate contract, and other relief. There were two defendants in the circuit court, Fred E. Wiley and Alice M. McClure. After a decree for plaintiff, Alice M. McClure took no appeal, and in that manner her name does not appear in the record here as a party contesting the judgment. Singular as it may seem (under facts which we will detail) she filed an answer in the case, but did not testify as a witness. The petition for specific performance is based upon a written contract of sale, by which defendant contracted to sell to plaintiff Lot 40 in Bonfils Place, an addition to Kansas City, for the price and sum of $ 3750, as follows:
"One hundred dollars at the signing of this contract, the receipt whereof is hereby acknowledged by the seller and which is deposited with J. M. Clark, 424 Dwight Building, as part of the consideration of the sale, the balance whereof is to be paid in the following manner, to-wit: $ 2,300 cash on delivery of deed as herein provided and the assumption on the part of the purchaser of the payment of the indebtedness secured by the present first deed of trust amounting to $ 1,350."
By the contract an abstract of title was to be furnished the purchaser, and one was furnished. Upon the examination of this abstract it was discovered that Alice M. McClure (an aunt of defendant Wiley) had filed a suit against Wiley for the specific performance of an alleged contract of sale of said lot to her by the said Wiley. No service had been obtained in the suit, as Wiley was a resident of Chicago. As we gather it, Alice M. McClure was a tenant of Wiley, and lived in the house, with an uncle of Wiley's, one E. A. DePue, who was Mrs. McClure's brother. The evidence is not clear as to whether he resided in the house upon this lot. By reason of this pending suit brought by Alice M. McClure against Wiley, she was made a party defendant. The trial court entered a decree as follows:
To continue reading
Request your trial