Appeal from Circuit Court, Greene County; James T. Neville, Judge.
Action by Emma C. Johnson against Charles H. Dalrymple, administrator of the estate of F. T. Mills, deceased. Plaintiff had judgment in the Circuit Court on appeal from the Probate Court, and defendant appeals. Affirmed.
This case originated in the probate court of Greene county, Mo., upon a petition praying for specific performance, which is in words and figures as follows (caption omitted):
"Your petitioner, Emma C. Johnson, would respectfully represent and show:
"That F. T. Mills, late of Greene county, Missouri, departed this life in said county and state on or about the _____ day of_____, 1908, intestate, and Charles H. Dalrymple is
the duly appointed, qualified and acting administrator of the estate of said decedent; that heretofore, to wit, on the first day of December, 1904, said decedent then in full life, entered into a contract in writing for the conveyance of certain real estate, a copy of said contract being hereto attached and marked `Exhibit A' and made a part of this petition; that said decedent did not execute the conveyance therein contracted, nor did he give power by will, or otherwise, to execute the same. Petitioner further states that by the terms of said contract in writing said F. T. Mills contracted and agreed to convey to your petitioner, Emma C. Johnson, the following described real estate, to wit: Beginning at a point fifty (50) feet north of the southeast corner of lot numbered thirty-three (33) in Harwood, Lisenby and Boyd's addition to the city of Springfield, Greene county, Missouri; thence north sixty (60) feet; thence west two hundred sixteen (216) feet; thence south sixty (60) feet; thence east two hundred sixteen (216) feet to the beginning, said tract or parcel of land so contracted to be conveyed, being the north thirty-five and one-half (35½) feet of lot numbered thirty-three (33) and the south twenty-four and one-half feet (24½) of lot numbered thirty-four (34) in said Harwood, Lisenby and Boyd's addition. That by the terms of said written contract said F. T. Mills contracted and agreed to sell and convey said real estate herein described for the price and sum of twelve hundred and fifty ($1,250) dollars, on monthly payments of twelve and 50-100 ($12.50) dollars per month, plus interest on the purchase price, at the rate of eight per cent. per annum, together with taxes and insurance; and when such monthly payments have reduced the debt to nine hundred and fifty ($950) dollars then said Emma C. Johnson is entitled to a deed of conveyance to said real estate, the deferred payment of $950.00 to be evidenced by a promissory note of even amount, payable on or before two years after date, with interest from date at the rate of eight per cent. per annum, payable semiannually, and secured by a first deed of trust on said real estate, privilege being given in said contract to pay all or any part of said $300 at any time. Your petitioner further states that the amount due said estate under and by virtue of said contract is as follows:
$1,250.00 — Purchase price
426.40 — Interest from Dec. 1, 1904, to Mar
6, 1908, 8 per cent
58.58 — State, County and City Taxes paid
by F. T. Mills
14.80 — Insurance paid by F. T. Mills
___________
$1,749.78 — Gross amount due March 6, 1909.
"That your petitioner has paid thereon from time to time the sum of six hundred and seventy-five and 13-100 ($675.13) dollars, leaving a balance of one hundred and twenty-four and 65-100 ($124.65) dollars due the estate of said F. T. Mills, in order to bring the balance due said estate to the sum of $950.00; and your petitioner now brings into court and tenders the administrator of said estate the said sum of $124.65, thus completing her monthly or partial payments, and leaving a balance of $950.00 due said estate, for which said sum your petitioner here now tenders her promissory note, due on or before two years from date, with interest thereon at the rate of eight per cent. per annum, payable semiannually, and secured by a first deed of trust on said real estate; and your petitioner states that she has in all things fully performed her part of said written contract. Wherefore, she prays for an order and judgment of this court requiring said Charles H. Dalrymple, administrator, as aforesaid, to specifically perform said written contract, and to accept the balance due thereon, and convey to her by a good and suitable deed of conveyance the interest that said F. T. Mills had in and to said real estate at the time of his death, and for such other and further relief as may be right and just, and your petitioner will ever pray. Emma C. Johnson, By E. D. Merritt, Her Attorney.
"State of Missouri, County of Greene — ss.: Emma C. Johnson, petitioner herein, being first duly sworn, upon her oath deposes and says: That the above and foregoing petition is in all things true and correct to the best of her knowledge and belief, and that no part of said contract has been satisfied, except as stated in said petition. Emma C. Johnson.
"Subscribed and sworn to before me this 26th day of March, 1909. Edward D. Merritt, Notary Public."
The administrator thereupon filed the following answer (caption omitted): "Comes now Charles H. Dalrymple, and for answer to the petition of Emma C. Johnson heretofore filed, admits that he is the duly appointed and qualified administrator of the estate of F. T. Mills, deceased, and that the said Mills executed the contract herein stated, and further admits that petitioner has paid to said Mills the various sums stated, and that the sums admitted by petitioner as paid out for taxes and insurance under said contract are correct, but that not all of such sums paid out by said Mills are included in said petition. That in addition to the amounts set out in said petition, and paid out by him under said contract, should be included the payment of $70.81 paid by said Mills as a special tax for the improvement of said property mentioned in the contract. That subsequent to the date of the contract, and while petitioner was in possession of the same under said contract, special tax bill No. 2325A, was issued by the clerk of the city of Springfield, as directed by ordinance approved May 3, 1905, for the sum of $70.81, for the construction of a certain sewer for the benefit of said property, and that it created a lien against the same. That said F. T. Mills, under the terms of the contract, paid out on said tax bill, in satisfaction of the same, the
sum of $70.81, and that the same became a charge against petitioner, under the contract, she receiving the benefit of the same. Wherefore said administrator prays the court to require the petitioner to pay said sum of $70.81, or to increase the tender of $124 to $195.46 before requiring specific performance of said written contract. Charles H. Dalrymple, administrator of the Estate of F. T. Mills, Deceased. By E. C. McAfee, His Attorney."
The cause was taken by appeal from the probate court to the circuit court of Greene county. On retrial before that court, judgment was rendered in favor of the plaintiff, and specific performance as prayed in the petition, was enforced, from which judgment the defendant has perfected his appeal to this court.
At the trial in the circuit court, the following articles of agreement were offered in evidence by the defendant:
"This indenture entered into this 1st day of December, 1904, by and between F. T. Mills, of Springfield, Missouri, party of the first part, and E. C. Johnson and husband of Springfield, Missouri, party of the second part: Witnesseth, that the said party of the first part hereby leases to the party of the second part the following described real estate and the buildings thereon, to wit: Beginning 50 feet N. of S. E. corn. lot 33, Harwood, Lisenby and Boyd's Add. to Springfield, Mo., N. 60 feet fronting on Washington Ave....
