Lackawanna Coal & Iron Co. v. Long

• Decision Date: 23 December 1910
• Citation: Lackawanna Coal & Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35 (Mo. 1910)
• Court: Missouri Supreme Court
• Parties: LACKAWANNA COAL & IRON CO. v. LONG.

133 S.W. 35

231 Mo. 605

LACKAWANNA COAL & IRON CO. v. LONG.

Supreme Court of Missouri. Division No. 1.

December 23, 1910.

1. INJUNCTION (§ 59)—SUBJECTS OF RELIEF —RESTRAINING CONVEYANCES.

In order to entitle a purchaser to enjoin the conveyance of the land by his vendor, plaintiff must show that he is entitled to specific performance.

2. PLEADING (§ 216)—DEMURRER — DETERMINATION —MATTERS CONSIDERED.

In ruling on a demurrer to a pleading, the court will look to the material allegations not made, as well as those made.

3. SPECIFIC PERFORMANCE (§ 114)—PLEADING —OWNERSHIP OF VENDOR.

The petition alleged that D., by written contract, a copy of which was attached, purchased from defendant the land therein described, and paid to him $2,000 on the contract price, and agreed to pay the additional sum of $58,000 as soon as the title thereto was perfected, $18,000 of which was to be paid in cash and the remainder on or before five years; that the title was found to be defective and defendant undertook to cure the defects by a proceeding in court, and a supplementary agreement, a copy of which was attached, was entered into to that effect; that said proceeding had not become effective, and thereafter plaintiff acquired the lands from D., and that defendant now claims that the title is perfect and that he has the right to retain the $2,000 paid, and, though the contract is still in force and plaintiff is able and willing to comply with it as soon as the title is made perfect, and plaintiff and D. have done so as far as possible, defendant threatens to convey the land to another; wherefore plaintiff prays that he be enjoined from doing so, and be required to convey to plaintiff, as soon as the title is perfected. Held, that the petition was defective on demurrer for not alleging that defendant owned or had title to the land.

4. SPECIFIC PERFORMANCE (§ 114)—SUFFICIENCY OF BILL.

The petition was defective on demurrer as a bill for specific performance for not containing allegations relating to an abstract of title, or the time for the discovery of defects in the title, or in which they were to be cured, or what title was to pass, or who was to perfect title, or what was to be done if the defects discovered were incurable, for not definitely alleging when performance of the contract was to be completed, and for not containing allegations as to whether there was to be any security for the deferred payments.

5. PLEADING (§ 8)—CONCLUSIONS.

The reference to the title as "defective," and the allegation that the court proceeding was not "effective," the use of the word "perfected," relating to the title of the phrase "as soon as the title is perfected," and "was entered into to that effect," in the allegation relating to the supplementary agreement, and of the phrase "undertook to cure the defect," were allegations of conclusions of law.

6. SPECIFIC PERFORMANCE (§ 114)—ACTIONS— ALLEGATIONS OF PETITION—SUFFICIENCY.

The petition was defective for not alleging facts upon which damages could be predicated for defendant's refusal to convey, or showing title which could be perfected.

7. PLEADING (§ 216) — DEMURRER—MATTERS CONSIDERED.

The court should not consider the prayer of the bill on demurrer.

8. PLEADING (§ 433)—SUFFICIENCY—CURE BY JUDGMENT.

The allegations of the bill should be construed more favorably to plaintiff in determining its sufficiency after decree, than when challenged by demurrer.

9. PLEADING (§ 216)—DEMURRER—EXHIBITS.

On demurrer to a pleading, exhibits cannot be considered either to aid or impugn its sufficiency.

10. SPECIFIC PERFORMANCE (§ 28)—ALLEGATIONS —SUFFICIENCY.

Since the chancellor will not make a contract for the parties, a contract must be clear,

definite, and certain in its terms in order to be specifically performed.

11. SPECIFIC PERFORMANCE (§ 114)—PLEADING —ALLEGATIONS—PERFORMANCE.

A bill for specific performance should allege what each party was to do under the contract, and should allege performance by plaintiff, unless it is prevented by defendant's wrongful act, or waived.

12. SPECIFIC PERFORMANCE (§ 10)—RELIEF— PARTIAL PERFORMANCE.

Plaintiff may compel specific performance as to the part of the contract which can be performed, and recover damages for the part which cannot be performed.

13. PLEADING (§ 214)—DEMURRER — FACTS ADMITTED.

A demurrer to the petition admits only the facts which are well pleaded and are not absurd or impossible, but does not admit legal conclusions.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by the Lackawanna Coal & Iron Company against Robert J. Long. From a judgment dismissing the bill, plaintiff appeals. Affirmed.

Johnson & Lucas, for appellant. Peak & Strother, for respondent.

LAMM, P. J.

Cast nisi on a general demurrer to its amended bill in equity, plaintiff stood, suffered judgment, and comes up by appeal.

The question here is single and seeks the bill. Omitting caption and description by metes and bounds of the land in question, it best speaks for itself, thus: "The above-named plaintiff for its amended petition states that it is and was at all times hereinafter named a corporation duly organized and existing under the laws of Missouri; that on the 24th day of May, 1906, one E. O. Deshler, by written contract, a copy of which verified by affidavit is herewith filed, purchased of defendant, Robert J. Long, the following described real estate in Jackson county, Mo., to wit: A part of the southeast quarter of the southwest quarter of section thirty-six (36), township fifty (50), range thirty-three (33), more particularly described as follows: * * * That said Deshler paid to said Long on said contract the sum of two thousand ($2,000) dollars, and agreed by the terms thereof to pay for said real estate the additional sum of fifty-eight thousand ($58,000) dollars, as soon as the title thereto was perfected, eighteen thousand ($18,000) dollars of which was to be paid in cash, and the remainder on or before five years; that the title to said real estate was found to be defective, and said Long undertook to cure the defects thereof by a proceeding in court, and a supplementary agreement dated June 30, 1906, a copy of which is hereto attached, was entered into to that effect; that said proceeding has not become effective; that on the 20th day of September, 1906, plaintiff by deed duly recorded acquired said land from said Deshler; that said Long now claims that said title is perfect and that he has the right to retain said sum of two thousand dollars, so paid as aforesaid, and although said contract is still in force, and plaintiff is able, willing and ready to comply with the terms thereof as soon as said title is made perfect, and said Deshler and plaintiff have done so as far as was possible, defendant threatens to sell and convey said real estate to some one unknown to plaintiff. Wherefore plaintiff prays that said Long be enjoined and restrained from conveying said real estate to any one except this plaintiff, and be required to convey the same to this plaintiff as soon as the title is perfected, and for such other and further relief as the premises may justify."

(a) Observe, the object and life of the bill is to tie the hands of defendant by injunction, so he cannot convey the land (assuming for the nonce he owns it) to any other than plaintiff. Now, the right of alienation, the jus disponendi, is of the essence of a fee and a vendee may not interfere with that right in chancery, unless by virtue of a contract which should be specifically enforced. Therefore, a plaintiff, as a condition precedent to such injunctive relief as here asked, must (when challenged by demurrer) show a bill...