Long v. Lackawanna Coal & Iron Co.

• Decision Date: 28 February 1911
• Parties: LONG v. LACKAWANNA COAL & IRON CO. et al.
• Court: Missouri Supreme Court

136 S.W. 673

233 Mo. 713

LONG v. LACKAWANNA COAL & IRON CO. et al.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

Rehearing Denied March 31, 1911.

1. QUIETING TITLE (§ 37)—TITLE OF PLAINTIFF—ANSWER.

An answer, in a suit to remove a cloud on title, which admits that prior to a designated date plaintiff was the owner of the land, and that on that date he contracted to sell the same as set forth in the petition, that plaintiff, as vendor, undertook to cure defects in the title, but failed to do so, that a claimant under the purchaser had been at all times ready to take the title and carry out the contract as soon as the title became perfected, but that plaintiff refused to perfect the title and fraudulently attempted to convert the partial payment to his own use, etc., when liberally construed as required by Rev. St. 1909, § 1831, puts in issue plaintiff's title.

2. APPEAL AND ERROR (§ 171)—THEORY OF TRIAL IN COURT BELOW—REVIEW.

Where plaintiff, in a suit to remove a cloud on title, voluntarily assumed in the court below the burden of proving his title, he could not on appeal urge that the answer admitted his title.

3. APPEAL AND ERROR (§ 194)—OBJECTIONS BELOW—ANSWER—SUFFICIENCY.

An answer, which denies each and every allegation in the petition except such as are hereinafter specifically admitted, is, when not attacked, sufficient to raise issues, and, where plaintiff made no motion to correct the answer nor moved for judgment on the pleadings, he could not on appeal complain that it was insufficient.

4. ABATEMENT AND REVIVAL (§ 8)—PRIOR PENDING SUIT—CROSS-ACTIONS.

The defense of a prior suit pending applies when plaintiff in both suits is the same person, and both are commenced by himself, and not to cases where there are cross-suits by plaintiff in one suit who is a defendant in the other, and a defendant in a suit to restrain him from selling real estate to any one except plaintiff therein on the title being perfected need not plead affirmative matter entitling him to affirmative relief, but he may institute an independent suit therefor.

5. QUIETING TITLE (§ 52)—PROCEEDINGS IN REM—JUDGMENT—EFFECT.

A proceeding under Rev. St. 1909, § 2538, authorizing suits to perfect title by limitation is in the nature of a proceeding in rem, and the judgment, operating on real estate within the state, has no extraterritorial force.

6. QUIETING TITLE (§ 31)—STATUTES—PROCESS.

A state may by statute provide that title to real estate within its limits may be settled and determined by a suit in which a nonresident is brought into court by publication.

7. VENDOR AND PURCHASER (§ 82)—CONTRACTS—CONSTRUCTION.

A supplemental contract for the sale and purchase of real estate, which stipulates for the extension of the time for performance to a designated date to enable the vendor to sue to quiet title, and which stipulates that in other respects the original contract is continued in force, merely contemplates an extension of the time for the consummation of the contract to the designated date, and the purchaser may not insist that the time for performance is extended for three years after the rendition of the decree quieting title within Rev. St. 1909, §§ 2101-2108, providing for filing within three years of a petition for review of judgments.

8. ESTOPPEL (§ 110)—AVAILABILITY AS A DEFENSE—PLEADING.

Where there is no opportunity to plead estoppel, it is available as evidence.

9. ADVERSE POSSESSION (§§ 13, 30)—POSSESSION —TITLE—ELEMENTS—"NOTORIOUS"— "ADVERSE"—"HOSTILE."

The elements of title by limitation are uninterrupted possession, actual, visible, notorious, adverse, and hostile under color and claim of right for the statutory period; the words "adverse and hostile" meaning practically the same thing, and the word "notorious" meaning generally known and talked of, and universally recognized, conspicuous, widely or commonly known.

10. ADVERSE POSSESSION (§ 106)—ACQUISITION OF TITLE.

An actual, visible, notorious, adverse, and hostile possession under color and claim of right for 75 years by one, and his ancestors and grantors, creates a title in fee simple under the 10, 24, and 33 year statutes of limitations. Rev. St. 1909, §§ 1879, 1881, 1884.

11. VENDOR AND PURCHASER (§ 131)—CONTRACTS —TITLE—SUFFICIENCY.

Where a contract for the sale of real estate stipulated for a good title and a general warranty deed free of liens, and a supplemental contract extended the time for performance to a designated date to enable the vendor to sue to quiet title, the purchaser could not object to a title acquired by adverse possession, whether considered from the viewpoint of the status of the title before the decree perfecting it, or from the viewpoint of a title perfected by the decree.

12. VENDOR AND PURCHASER (§ 334)—RECOVERY OF EARNEST MONEY—EQUITY.

Equity will not aid a purchaser to recover earnest money paid to a vendor not in default, where such recovery is contrary to the contract.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Robert J. Long against the Lackawanna Coal & Iron Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

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

LAMM, J.

This is a suit in equity brought on December 19, 1906, in the Jackson circuit court to clear away a cloud on plaintiff's title to a part of the southwest quarter of section 36, township 50, range 33, in Jackson county, 22 acres, more or less, described with particularity in the bill. On May 24, 1906, plaintiff contracted in writing with defendant Etta O. Deshler, she signing as "E. O. Deshler," thereby bargaining the land to her for $60,000—$2,000 paid down. The contract, being unacknowledged, was not entitled to record. At a certain time thereafter she conveyed by deed to her corporate co-defendant, the iron company, in which conveyance there was a narration referring to said contract, which deed was presently spread of record. The object of the suit is to cancel this deed and its record as a cloud upon plaintiff's title. From a decree canceling the deed, removing the cloud cast by its record, and enjoining defendants severally and all persons claiming under them from setting up or relying upon any claim of title by virtue of said deed or contract, and finding against the right of the iron company to a return of said earnest money, and, on such finding, decreeing that plaintiff go hence without day, discharged of such claim, defendants, on due steps, come up by appeal.

Of the pleadings:

The bill alleges: The iron company is a Missouri business corporation, located in Kansas City. That plaintiff at the times in hand was and is the owner of the real estate in question (describing it). That on May 24, 1906, plaintiff and defendant Deshler, under the name of "E. O. Deshler," entered into a written contract whereby plaintiff sold to her said real estate for the sum of $60,000—$2,000 down, $18,000 to be paid upon the delivery of a warranty deed, and $40,000 to be paid on or before five years from such delivery, to be evidenced by Deshler's note, secured by a deed of trust on the land, bearing 6 per cent. semiannual interest, with the privilege of paying $5,000 or any multiple thereof at any interest-paying period. That plaintiff, within 10 days, was to furnish Deshler a complete abstract of title to said real estate, certified by a competent abstractor, from the United States government to date, accompanied with the usual certificate. If upon examination it was found that plaintiff had a "good title in fee to said property," he was bound to execute "a general warranty deed," "free and clear of all liens," and concurrently therewith Deshler was bound to pay the balance of said cash payment and deliver said note and deed of trust securing the same. "If the title to said real estate should be found defective," plaintiff was to rectify the defects within a reasonable time, not to exceed 60 days "from the notice of such defect." If such defects in the title "could not be cured or remedied" within that period, then (if no extension of time was had) the contract became null and void and the advance payment of $2,000 was to be returned to Deshler. If the title should be good, and plaintiff had kept his part of said contract, and Deshler should fail to comply with the requirements on "his" part within 80 days as agreed, then the $2,000 was to be forfeited to plaintiff. And which contract also provided that time was made of the essence of the contract, and that the sale and transfer should be consummated within 90 days of the contract date.

The bill further alleges: That plaintiff and Deshler on the 30th day of June, 1906, entered into a further written contract, whereby it was mutually agreed that the time for consummating the first contract was extended to the 20th day of September, 1906, and in all other respects the first contract was continued in force. That plaintiff complied with the terms and conditions of both contracts upon his part, tendered a general warranty deed to Deshler on the 20th of September, 1906, and demanded that Deshler perform and carry out the terms of the contract on her part by making the cash payment referred to and executing the note and deed of trust. That Deshler failed and refused to perform the terms and provisions of the contract on her part, refused to pay the balance of said cash payment and to execute either said note or deed of trust. That afterwards Deshler on the same day, to wit, the 20th of September, 1906, unlawfully and wrongfully conspiring and confederating with her codefendants, executed to the defendant iron company a general warranty deed purporting to convey said real estate for a consideration of "$7 and other valuable considerations," which deed, duly acknowledged on the same day, was filed for record by the said iron company and defendant Wright, and recorded at a given book and page in the office...