Lanyon v. Chesney

• Decision Date: 21 February 1905
• Parties: LANYON et al. v. CHESNEY et al.
• Court: Missouri Supreme Court

85 S.W. 568

186 Mo. 540

LANYON et al. v. CHESNEY et al.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

SPECIFIC PERFORMANCE — TENDER OF DEED — NECESSITY — PLEADING — REFUSAL TO ACCEPT DEED — INABILITY TO GIVE TITLE — FRAUDULENT MISREPRESENTATIONS — REMEDY.

1. In an action for specific performance, plaintiff must prove that he tendered a good and sufficient warranty deed.

2. In an action for specific performance, allegations of the answer that plaintiff had not tendered a sufficient warranty deed, and that he had no title to the premises, did not amount to a statement that defendant would not accept a sufficient deed if tendered, so as to dispense with proof that such a deed was tendered.

3. In an action for specific performance, a provision of the decree that plaintiff shall execute and deliver a good and sufficient deed upon payment of the purchase money into court does not render unnecessary proof that plaintiff had tendered a sufficient deed.

4. Where, in an action for specific performance by the vendor against the vendee in possession, defendant claims that the plaintiff is unable to convey a good title, he must offer to restore possession of the premises and rescind the contract.

5. Where, in an action for specific performance by the vendor against a vendee in possession, the defense is that plaintiff has no title to part of the land, defendant may surrender possession of that part, and insist upon performance as to the remainder, with an abatement of the purchase money.

6. Where, in an action for specific performance by the vendor against a vendee in possession, defendant alleges fraudulent misrepresentations as to the value of the land, he may repudiate the contract and surrender possession, or retain the land and sue for his damages, or, if the purchase money has not been paid, have it reduced by the amount of his damages.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Robert Lanyon and another against Frank O. Chesney and another. From a judgment for plaintiffs, defendants appeal. Reversed.

This was a suit brought by one of the respondents, Robert Lanyon, against Frank O. Chesney, one of the appellants, in the circuit court of Jasper county, state of Missouri, in Division No. 2. After the commencement of said action H. J. Mink was, on his own motion, made a party plaintiff. The Spring River Electric Power Company was made party defendant.

July 23, A. D. 1901, the plaintiff, Robert Lanyon, filed in said court his petition. Petition, omitting caption, was in words and figures as follows, to wit: "Plaintiff states: That on the 2d day of July, A. D. 1900, he was the owner of the west half of the south-east quarter of section seventeen (17), township twenty-nine (29), range thirty-two (32); also a space near the southwest corner of the northeast quarter of the southwest quarter of said section on the river for a dam and abutments on each side of the river, and one pole wide on each side of the river above the dam for eighty (80) poles; and also a strip or space of one pole wide from the river to a lake or pond for a race, and one pole wide on each side of side lake, and a space to convey water from the lake or pond to said west half of the southeast quarter of the northwest quarter. All of said property being known as the `Quaker Mills,' situate in Jasper county, Missouri. That on said day said plaintiff and defendant entered into a contract in writing by which said plaintiff agreed to sell, and defendant agreed to purchase, said property for six thousand dollars, to be paid as follows: Five hundred dollars cash; five hundred dollars on or before September 1, 1900; and five thousand dollars on or before January 1, 1901; possession to be given on payment of the five hundred dollars cash; warranty deed to be given when the second five hundred dollars is paid, and trust deed to be taken back, securing the five thousand dollars, due January 1, 1901, with interest at six per cent. from September 1, 1900. That defendant paid the cash payment of five hundred dollars, and afterwards, during the month of September, 1900, paid another five hundred dollars, when plaintiff offered to make, execute, and deliver a sufficient warranty deed, conveying said premises to said defendant, and requested said defendant to execute the deed of trust aforesaid to secure the balance, to wit, five thousand dollars; but the defendant at that time declined to make the deed of trust, stating that he would pay the cash in a few days, but ever since that time he has failed and neglected to either execute the deed of trust or make the cash payment. That the plaintiff on or about the 23d day of March, 1901, made, executed, and tendered to the defendant a good and sufficient warranty deed conveying said premises to the defendant, and plaintiff is now ready and willing to deliver said deed to said defendant on the payment of said sum of five thousand dollars, together with interest at six per cent. per annum from September 1, 1900, and now brings said deed into court and tenders the same to defendant. That no part of said five thousand dollars has been paid, although defendant took possession of said premises under said contract. Wherefore plaintiff prays that the said defendant may be compelled specifically to carry out said contract of purchase, and for judgment against the defendant for the sum of five thousand dollars aforesaid, together with interest from September 1, 1900, at the rate of six per cent. per annum, and that the said judgment may be declared a lien on said real estate for the balance of the purchase price, and that the said premises be ordered sold to satisfy the same, and for all other judgments, orders, and decrees meet and proper in the premises, and for costs."

The answer of defendant Frank O. Chesney covers about 17 pages of the abstract of record, and we see no necessity for burdening this opinion with a reproduction of it here, but must be content with a reference to certain averments in the answer which are vital to the proper disposition of the legal propositions involved. Embraced in this answer, we find the following allegations: "This defendant denies, each, every, all, and singular, the matters and things stated and alleged in and by the said plaintiff's petition herein filed." "But denies that said plaintiff was then or has been since or now is the owner of said real estate in fee simple absolute, and denies that said plaintiff ever had or now has a perfect title or a marketable title to the real estate or any part thereof." "Denies that this defendant agreed to pay six per cent. interest on $5,000 from the 1st day of September, A. D. 1900, but avers this defendant agreed to pay 5 per cent. per annum interest annually on said $5,000 from the date on which the said plaintiff made and delivered a good and sufficient warranty deed for all of the said premises, with full covenants of warranty, to this defendant or his assigns, as more fully shown in the second defense of this answer, which second defense is hereby made a part of this first defense." "Denies that the said plaintiff ever offered to this defendant to make, execute, and deliver a sufficient warranty deed conveying all of the above-mentioned premises to this defendant, or to any assigns of this defendant, of the above-described real estate or any part thereof. Denies that the said Lanyon on or about the 23d day of March, or at any other time, made, executed, and delivered to this defendant or to his assigns, of said premises, a good and sufficient warranty deed of all of the above-mentioned premises, conveying the same to this defendant or to his assigns. Denies that the said plaintiff is ready or able to convey a good and perfect title to all or any of the above-mentioned premises to this defendant or to his assigns upon any condition whatsoever." "Denies that this defendant has refused or neglected to make, execute, or acknowledge a deed of trust upon and conveying to said Lanyon all of the above-mentioned premises to secure the payment of said $5,000 ten years from and after the date of said deed of trust, which was agreed to upon Lanyon conveying all of the above-mentioned real estate to this said defendant or his assigns by a good and sufficient warranty deed, with full covenants, from said Lanyon, conveying all the same premises to this said defendant or his assigns — a perfect title to all the premises — and such good and sufficient warranty deed was upon examination accepted by this defendant or his assigns." "That there were at the time of the bringing of this suit other liens, also taxes and assessments, upon the said premises, and each and every part thereof. That there still remain the said liens upon the same. That said plaintiff cannot now convey said premises to this defendant or to his assigns, with a good and sufficient warranty deed or perfect title." There are numerous other allegations as to the false and fraudulent representations made in respect to the property at the time the contract of sale was entered into. These allegations will receive such...