Luckett v. Williamson

• Citation: 31 Mo. 54
• Parties: LUCKETT, Respondent, v. WILLIAMSON, Appellant.
• Decision Date: 31 October 1860
• Court: United States State Supreme Court of Missouri

31 Mo. 54

LUCKETT, Respondent,

v.WILLIAMSON, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. An agreement to convey land by deed of general warranty amounts to an engagement that the party so agreeing has or will have an indefeasible title; the vendor in such case must be able to convey such a title, otherwise he can not maintain an action for the specific performance of the contract.

2. The courts will not, it seems, compel a purchaser to take a title, where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings.

3. Where the vendor has not substantially the whole interest he has contracted to sell, he can not enforce the contract against the purchaser, and yet the purchaser can insist on having all the vendor can convey, with compensation for the difference.

Appeal from St. Charles Circuit Court.

Henry F. Luckett, plaintiff in this suit, sold to the defendant Williamson a tract of land for $7,500, of which $2,500 was paid in cash and the remainder in two equal annual instalments. The only writing executed at the time of the making of the agreement was the following: “Received of A. C. Williamson, the sum of five hundred dollars, being in part pay of my farm, which I have this day sold him, for the sum of seven thousand five hundred dollars; and I agree and bind myself to give him possession of the house and premises on the first day of October, upon his paying me the further sum of two thousand dollars cash, and two negotiable notes for twenty-five hundred dollars each, at one and two years from date, with interest at the rate of six per cent. per annum from their date until paid; at which time (viz., the first of October next), I am to execute said Williamson a general warranty deed to said premises, reserving a lien upon said premises for the payment upon the two notes above specified. St. Charles, Mo., August 31, 1857. [Signed] H. F. Luckett.”

The petition set out the terms of the contract, alleging that plaintiff agreed to execute a general warranty deed so soon as a survey of the land could be made; that defendant was thereupon to give his promissory notes for the deferred payments, with a deed of trust on the land securing them; that plaintiff had delivered possession to defendant, and had tendered a deed according to the terms of the contract, and demanded the notes, &c., but defendant refused to receive the deed or to execute the notes or otherwise fulfil the contract. Plaintiff again tendered the deed and asked judgment for the instalment of the purchase money due and for specific performance as to the residue.

The answer set up the statute of frauds. It denied the terms of the contract as stated, alleging that plaintiff had agreed to convey an absolute, perfect, indisputable and indefeasible title, the tract to contain one hundred and sixty acres, whereof not more than twenty-seven acres were within the banks of a lake; that plaintiff's title was imperfect as to part of the land; that more than forty-four acres were within the banks of the lake; that he had deceived defendant by his representations about his title, &c., and had thus fraudulently induced him to make the cash payment alleged. Defendant admitted the undisturbed possession of the land and the tender of a deed, but denied that the latter was in accordance with the contract, for the reason that it would not have conveyed to defendant the perfect title bargained for, and the quantity of land represented to be outside the lake; that the land consisted of six parcels, the titles to only two of which were in the plaintiff, the titles to the other portions being outstanding in other parties; that defendant had put up valuable improvements on the land. Defendant asked that plaintiff be compelled to repay the money advanced, and to pay for said improvements, &c.

Oral testimony was introduced on both sides to show the conversation that passed between the parties at the time of the sale. The title to a part of the land appeared to be outstanding in the heirs of one Whitley, deceased, a suit for the recovery of which was then pending. The cause was tried by the court without a jury. The court found the issues for the plaintiff, and rendered a decree granting the relief prayed in the petition.

Whittelsey, for appellant. (No brief on file.)

E. A. Lewis, for respondent.

I. The defence of the statute of frauds could not avail in this case. Possession was delivered and payment of part of the purchase money made. (2 Mo. 109; Charpiot v. Sigerson, 25 Mo. 63; Young v. Montgomery, 28 Mo. 604.) The liability of plaintiff on the contract could not be enlarged by parol testimony. (1 Mo. 640; 5 Mo. 101; Singleton v. Fox, 7 Mo. 515; Woodward v. McGaugh, 8 Mo. 161; Montany v. Rock, 10 Mo. 506; Jones v. Jeffries, 17 Mo. 577.) Equity would treat the parties as if the deed had been executed, and the notes given according to the contract. (Sto. Eq. § 64; Atwood v. Vincent, 17 Conn. 575.) Defendant could not set up failure in the title conveyed by plaintiff without an actual eviction. (Shelton v. Pease, 10 Mo. 473; Greenly v. Wilcocks, 2 Johns. 1; Brown v. Smith, 5 How. 387; Coleman v. Rowe, 5 How. 460; Abbot v. Allen, 2 Johns. Ch. 520; Kent v. Welch, 7 Johns. 258; Vanderkarr v. Vanderkarr, 11 Johns. 122; Patton v. England, 15 Ala. 69; Clark v. Snelling, 1 Carter, 382; Streeter v. Henley, 1 Carter, 401.)SCOTT, Judge, delivered the opinion of the court.

The idea of the court below was that a tender of a deed with warranty was sufficient to entitle the plaintiff to a specific performance, without showing that he had any title to the land he had agreed to convey....