Lockwood v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1877
• Citation: 65 Mo. 233
• Parties: LOCKWOOD v. HANNIBAL & ST. JOSEPH R. R. Co., APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 233

LOCKWOOD

v.HANNIBAL & ST. JOSEPH R. R. Co., APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Livingston Circuit Court.--HON. JONAS J. CLARK, Judge.

James Carr for appellant.

1. The petition does not allege that the respondent was evicted by title paramount, or that he surrendered or offered to surrender possession of the premises to appellant. Without one or the other of these facts existed he has no right to recover the purchase money. Tompkins v. Hyatt, 28 N. Y. 1; Moore v. Smedburgh, 8 Paige 600; Bruce v. Tilson, 25 N. Y. 198. Having gone into possession under an executory contract, he was under a legal obligation to restore possession to appellant when he discovered the defect in the title. If he had done so, he would now be in position to claim rescission of the contract; but instead of this he voluntarily surrendered possession to the enemy of the appellant, and thereby put it out of his power to discharge this obligation. Wallace v. Boston, 10 Mo. 660; Owens v. Rector, 44 Mo. 389. He was in quiet and undisturbed possession, and might never have been disturbed. Time was quietly and steadily building him up a title. Why was he so anxious to surrender to Duell? There is no allegation that he ever requested appellant to buy in or in any way to quiet the title after he discovered the defect. The sale of swamp lands was public. He could have bought it in himself and claimed a credit on his contract with appellant; but he took no step to protect his title. His own deposition shows that he acted in collusion with Duell. 2. There was no evidence that said land had ever been selected by the State or Livingston county and reported to the commissioner of the General Land Office under the act of Congress in regard to swamp lands, or that any list or plat thereof had ever been made out by the Secretary of the Interior and transmitted to the Governor of the State.

H. M. Pollard for respondent.

The swamp land grant was a present grant, vesting the title absolutely in the State without any selection. Smith v. R. R. Co., 9 Wall. 95; Campell v. Wortman, 58 Mo. 258; Clarkson v. Buchanan, 53 Mo. 563. Plaintiff was not obliged to wait till he was ejected. He can sue for breach of covenant, or to rescind the contract at any time when he discovers that the paramount title is outstanding or that his grantor can not fulfill his contract. All he need do is to show that defendant had not the title. Sugden on Vendors, pp. 8, 244-5, 282-3, and 288. Hilliard on Vendors, pp. 8, 35, 223, 300 § 20, 301 § 21; Rawle on Covenants, 604; Washington v. Ogden, 1 Black 450. The covenants were not concurrent and the vendee had a right to rescind at any time and after any payment, provided the vendor was unable to comply with his covenants. See Butler v. Manny, 52 Mo. 506;Parsons on Contracts, Vol. 3, 406-7-8; Vol. 2, 678-80. The plaintiff did all in his power to put defendant into possession. He demanded back his money and offered to rescind and offered to keep the land if defendant would make a good title. Defendant stood still and did nothing but let plaintiff be sold out and never tried to protect him. Neither was he bound to surrender possession; he had a right to rely on defendant's promise to protect him.

HOUGH, J.

On the fifth day of January, 1869, the plaintiff entered into a written contract with the defendant for the purchase of a certain tract of land in the county of Livingston, containing forty acres, at the price of ten dollars per acre, to be paid for in ten annual installments, upon the payment of which the defendant bound itself to execute to the plaintiff, his heirs or assigns, a deed therefor conveying the fee with the usual covenant of warranty. On the 7th day of May, 1869, another contract was entered into between the plaintiff and defendant for the purchase by plaintiff of a certain other tract in said county, containing eighty acres, at the price and on the terms stated in the first contract. Plaintiff went into possession of both tracts under and in pursuance of said contracts. After the payment of one installment of the purchase money, the plaintiff having heard that the lands purchased by him were not the property of the defendant, but belonged to the county of Livingston, as a part of the swamp land grant, so informed the defendant, and defendant replied that it would make the title good. In May, 1871, both of the tracts purchased by the plaintiff were sold by the county of Livingston as swamp lands, and one H. S. Duell became the purchaser, to whom, as owner of the paramount title, the plaintiff surrendered possession without suit, and so far as the record shows, without demand made therefor. There was testimony tending to show that the lands in question were swamp lands, but there was no testimony tending to show that the same were ever selected, or otherwise designated, as such under the Act of Congress of September 28th, 1850, either by the State or the Federal authorities. The...