Lackawanna Coal & Iron Company v. Long

• Decision Date: 23 December 1910
• Parties: LACKAWANNA COAL & IRON COMPANY. Appellant, v. ROBERT J. LONG
• Court: Missouri Supreme Court

133 S.W. 35

231 Mo. 605

LACKAWANNA COAL & IRON COMPANY. Appellant, v. ROBERT J. LONG

Supreme Court of Missouri, First Division

December 23, 1910

Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.

Affirmed.

Johnson & Lucas for appellant.

The petition is good on general demurrer. Bliss on Code Pleading (3 Ed.), sec. 425a; Stillwell v. Hanson, 97 Mo. 585; Hickory County v. Fugate, 143 Mo. 79; Rodgers v Fire Ins. Co., 186 Mo. 255; Railroad v. Adams, 62 N.J.Eq. 661.

Peak & Strother for respondent.

(1) The copies of the contracts mentioned in the petition and filed as exhibits with it, constitute no part of it and cannot be used, in passing on the demurrer, to eke out its insufficiency. Curry v. Lackey, 35 Mo. 389; Robinson v. Levy, 217 Mo. 510. (2) A demurrer admits only facts well pleaded. It does not admit the conclusions drawn by the pleader from the facts pleaded. It does not admit conclusions of law. Chemical Works v. Nemnich, 169 Mo. 395; Martin v. Castle, 193 Mo. 194; Donovan v. Boeck, 217 Mo. 83; Garner v Meyer, 48 Mo. 319; Blaine v. Knapp & Co., 140 Mo. 241; Knapp, Stout & Co. v. St. Louis, 156 Mo 352; Hand v. St. Louis, 158 Mo. 212; Kleekamp v. Meyer, 5 Mo.App. 448; Dannan v. Coleman, 8 Mo.App. 595. (3) The petition does not show that plaintiff is entitled to either an injunction or specific performance, and hence, does not state a cause of action. Ryan v. Dunlap, 111 Mo. 610; Goldthwait v. Lynch, 9 Utah 186; Taylor v. Williams, 45 Mo. 80; Wendover v. Baker, 121 Mo. 292.

OPINION

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, Missouri, to-wit:

"A part of the southeast quarter of the southwest quarter of section thirty-six, township fifty, range thirty-three more particularly described as follows: . . .

"That said Deshler paid to said Long on said contract the sum of two thousand dollars and agreed by the terms thereof to pay for said real estate the additional sum of fifty-eight thousand dollars, as soon as the title thereto was perfected, eighteen thousand 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 stating facts entitling him to specific performance. Otherwise, the result might be that a vendor would be enjoined from selling or conveying to another than the complaining vendee, when, at the selfsame time, such vendee could not compel a conveyance to him -- a proposition not in line with good conscience and good sense, opening a wide door for mischief; for a vendee by his injunction against alienation might thereby force performance on his vendor by moving in a circle when he could not have it by moving in a straight line to his goal by direct proceeding. I know of no policy of the law permitting a vendee to play such role. In equity it is no concern of his what a vendor does with his land, unless the vendee by his suit in equity can compel the vendor to convey to him. He may or may not have his damages at law for a breach of a sale contract, but it is clear that if he cannot have performance in kind, he should not tie up the land itself.

On this view of it, the bill should show the right to specific performance by pleading facts from which such right is bound to flow -- he must show a contract capable of being performed. Moreover, when the question is the sufficiency of a pleading challenged by demurrer, courts look not only to the material averments present but to those absent. Judged of in that way, keeping in mind the necessity of a right in plaintiff to compel ultimate specific performance as a basis for the specific injunctive relief prayed, the demurrer was well ruled. This, because:

(b). Separating the bill into those elemental facts constitutive of a cause of action (and herein of those elements absent as well as present), it is plain there is no allegation that Long owned, or had title to, the land. It alleges Deshler, by written contract, purchased it of him. Speaking loosely, when A purchases anything from B there might be an inference that A could not purchase from B unless B owned the thing, the subject of the dicker and sale. So there are other allegations faintly smacking of ownership and title in Long, all of them more or less vague and implied -- for instance, one relates to curing defects in the title; another to the claims of Long that the title was perfect; yet others to Long's threats to sell and convey to another person, to a payment of two thousand dollars by Deshler to Long, to plaintiff's acquiring the land from Deshler -- so, the prayer of the bill (which we ought not to look to on demurrer) is that Long be restrained from conveying to another -- from all of which, by grace of great liberality in construing the terms and intendment of the pleading, an implication might arise that Long owned the land or had some title thereto and contracted to sell as owner. But a plain, bald, direct allegation of ownership, or claim of ownership or of title, or of a sale contract as owner, as said, is nowhere found. We are not dealing here with the sufficiency of a bill after decree, but are considering a challenge to the bill in limine, and the correct doctrine is that more grace is extended in the former than in the latter case. Now, whatever cause of action could arise to a plaintiff at law for damages for a breach of a contract of purchase and sale of land from one who did not own the land or have title thereto, yet an allegation of ownership and, hence, of potential ability to presently perform seems material in a bill as a foundation to the right to specific performance; for it is clear equity that no performance will go, absent ability to perform. It would be a vain thing to do that and it is the boast of equity that it does nothing in vain.

(c). The bill is predicated on two contracts -- one supplementing the other. It is not pretended either is set forth totidem verbis; neither is it charged that their terms and covenants are fully pleaded in substance. It is alleged that copies are attached as exhibits. We are not expressly invited by appellant to go to them in aid of the bill, but the trend of argument, to our mind, seems to indicate a hope or expectation we might do so. It is elementary, however, in this jurisdiction (whatever the rule elsewhere) that on demurrer the allegations of the pleading struck at may be neither...