Kirkpatrick v. Pease

Decision Date28 March 1907
Citation202 Mo. 471,101 S.W. 651
PartiesKIRKPATRICK v. PEASE et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

Suit by W. H. Kirkpatrick against Mary A. O. Pease and others. From a decree for defendants, plaintiff appeals. Reversed and remanded.

Wilson & Wilson and George W. Day, for appellant. James W. Boyd and James H. Hull, for respondents.

LAMM, J.

Plaintiff lodged a bill in equity in the Platte circuit court to enforce specific performance of an alleged contract of purchase of 1.97 acres of land, more or less, being part of the S. W. ¼ of section 12, township 54, range 37 in Platte county, described in the bill with particularity in courses, distances, and monuments. This parcel of land will hereinafter be referred to as "tract A." On a hearing, nisi, plaintiff's amended bill was dismissed. Thereupon, he appeals to this court.

Attending to the pleadings, the amended bill proceeds on the theory that defendant Mary A. O. Pease was the owner in her own exclusive and separate right of tract A, an irregular parcel of land on the shores of Bean Lake, a body of water in said Platte county (the description of tract A, being diffuse and technical, need not be set forth, but appears correctly in plaintiff's amended bill); that her codefendant, Charles S. Pease, is her husband; that there was excepted out of tract A a certain indefinite right described in the bill as "a right to use, occupy, and enjoy a water front along the water line on the east side of Bean Lake as conveyed by William Osborne to John Savage by deed recorded in book 21, page 278 of the records in the recorder's office of Platte county"; that said Mary was the granddaughter of Col. William Osborne, and that during her coverture Col. Osborne conveyed tract A, together with a very large body of land, to Mary by a deed of April 6, 1894, duly of record; that said deed was a gift of inheritance in lieu of a devise by will; that defendant W. O. Park was Mary's duly accredited agent, authorized in writing "to look after, rent, care for, sell and otherwise attend to tract A and said larger body of land; that on February 26, 1898, through said Park, as agent, in consideration of $200, she sold said tract A to plaintiff, and delivered possession thereof to him, and he thereupon made valuable improvements; that a deed to tract A was made by Park, but the same was insufficient to convey the legal title to plaintiff, but that Park, as agent, transmitted the consideration to his principal, Mary, which was by her received with full knowledge that it was the purchase price of tract A, and she thereupon ratified and confirmed the act of her agent in the premises; that Mary's husband, in all said things concerning the sale of tract A and the ratification thereof, co-operated with her; that plaintiff under said sale, payment of the purchase money, conveyance, and delivery of possession, together with the acquiescence of Mary, had rested in the belief that he had a sufficient deed for tract A, but that a short time before the bringing of this suit defendant Park retired from the said agency and plaintiff was then informed by Mary's new agent (one Petty or Peddie) that Mary's deed was invalid; that thereupon plaintiff was advised by counsel that Petty's contention was true, and plaintiff thereupon applied to Mary for a sufficient deed to rectify the errors in her former conveyance, which, howeven had in law, was alleged to be binding in equity and good conscience as a written contract to convey, but that Mary refused to make a sufficient deed, and thereafter, in March, 1900, sold tract A with other land to her codefendants Rees and Rose, who, in turn, in April of that year, conveyed the same to her codefendant Meyers; that said Rees, Rose, and Meyers, collectively and severally, having received their said deeds with full knowledge of plaintiff's equities and claims, are bound thereby. Wherefore, plaintiff prayed a decree adjudicating that Rose, Rees, and Meyers took their respective deeds subject to plaintiff's equities; and that said conveyances be held void as to tract A; and for specific performance and for all proper general relief.

Defendant Park failed to answer, and it is not clear why he was made a party. Defendants Rees, Rose, and Meyers were brought into the case by an amended bill— their deeds having been executed after the original bill was filed. Mary A. O. Pease answered by way of general denial. Further she specifically denied that her codefendant Park had any authority in writing to sell tract A or any other land for her; and she avers that Park sent her $200, but falsely pretended he had sold some land, but not the land described in the petition; that thereupon she declined to accept said sum, and "immediately after receiving it, she tendered it with interest thereon, if any, to plaintiff," who refused to accept it; that when this suit was instituted, she renewed her tender, and brought said money and interest into court for him. Defendants Charles S. Pease, Rees, Rose, and Meyers, answered tendering the general issue, except said Pease admits being the husband of Mary. The reply denied new matter, and reaffirmed the allegations of plaintiff's amended bill that Mary accepted the consideration with full knowledge of all the facts relating to the purchase and kept the same until the institution of this suit, to wit, for about two years, during which time plaintiff in good faith made valuable improvements on tract A, because of all which, plaintiff says, Mary is estopped to allege a want of a written contract. A surveyor's map used at the trial will serve in understanding the facts. The tract marked on that map "W. H. Kirkpatrick," bisected by a line showing the shore line of Bean Lake in 1840, as we grasp it, is tract A. In tract A, and north of the platted road and some distance away from the present water line of Bean Lake, is the "boathouse," which figures extensively in the trial. Farther to the east, and across a wheatfield is a tract marked "Annie Stephens," which also figured at the trial, and will hereafter be designated as tract B; the privilege for said boathouse being appurtenant to tract B.

Said map was produced in this court as a blue print, and is as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Questions raised on appeal group themselves into the following: First. Was there a binding contract made between plaintiff and Mary A. O. Pease? Second. If there was any infirmity in the authority of Park to make the contract, was there such ratification by Mrs. Pease as relates back and binds her? Third. If a contract was made, or ratified, was it so definite and certain as to be susceptible of specific enforcement? Fourth. Did Mary A. O. Pease own tract A.; i. e., was her title such as made the contract, if one was made or ratified, susceptible of specific performance? Fifth. Did defendants Rees and Rose purchase with notice of plaintiff's equities, if any? And does defendant Meyers now hold under a conveyance subject to such equities? Sixth. Specific performance being directed to the sound discretion of the chancellor, should it be withheld in this case? The facts essential to the consideration of these questions will appear in the opinion.

1. The first and second questions may be considered together....

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