McPherson v. Kissee

• Decision Date: 06 February 1912
• Citation: 144 S.W. 410,239 Mo. 664
• Parties: H. S. McPHERSON and J. M. ADAMS, Appellants, v. R. C. KISSEE and W. N. ADAMS
• Court: Missouri Supreme Court

144 S.W. 410

239 Mo. 664

H. S. McPHERSON and J. M. ADAMS, Appellants, v. R. C. KISSEE and W. N. ADAMS

Supreme Court of Missouri, Second Division

February 6, 1912

Appeal from Taney Circuit Court. -- Hon. John T. Moore, Judge.

Reversed and remanded (with directions).

McPherson & Hilpirt, John S. McPherson and C. B. Sharp for appellants.

The court erred in finding the issues for the defendant Kissee under the pleadings the law and the evidence. Taylor v Williams, 45 Mo. 80; Foster v. Kimmons, 54 Mo 488; Martin v. Halley, 61 Mo. 196; Shelton v Church's Admr., 10 Mo. 774; Tedford v. Trimble, 87 Mo. 226; Smith v. Wilson, 160 Mo. 657; Black v. Crowther, 74 Mo.App. 480; Metz v. Wright, 116 Mo.App. 631; Luckett v. Williamson, 31 Mo. 54; Rozier v. Graham, 146 Mo. 352; Mitchner v. Holmes, 117 Mo. 185; Wilson v. Wilson, 115 Mo.App. 641; Secret Service Co. v. Gill Alexander Mfg. Co., 125 Mo. 140; Gloeckner v. Kittlaus, 192 Mo. 477; Strange v. Crowley, 91 Mo. 287; Taylor v. Schraeder, 107 Mo. 206; Berry v. Hartzell, 91 Mo. 132.

G. Purd Hays and G. A. Watson for respondent.

The court did not err in decreeing specific performance of the contract. Secret Service Co. v. Mfg. Co., 125 Mo. 156; Evans v. Evans, 196 Mo. 23; Kilpatrick v. Wiley, 197 Mo. 169; Kilpatrick v. Pease, 202 Mo. 494.

BROWN, J. Kennish, P. J., and Ferriss, J., concur.

OPINION

BROWN, J.

Ejectment for 41.60 acres of land in Taney county. Judgment was given for defendant Kissee in the circuit court of Taney county on October 26, 1911, specifically enforcing a contract to exchange the land in controversy for a farm owned by said defendant. From this judgment plaintiffs appeal.

Plaintiffs were the owners of thirty-five head of hogs, a log wagon and the 41.60 acres in controversy, upon which land was located a flouring mill, all of which property they agreed to exchange for the equity of defendant Kissee in a farm of 240 acres in Dade county, Missouri.

After execution of the contract for exchange of property, plaintiffs allowed defendant Kissee to take actual possession of the personal property and flouring mill before the abstract of title to defendant's property was submitted to them. Upon examining the abstract of title, plaintiffs declined to complete the exchange of property, and demanded that they be restored to possession of the flouring mill, on the alleged ground that defendant's farm was incumbered for a larger amount than was represented by him in the contract. Defendant Kissee declined to surrender possession of the mill, whereupon this action ensued.

The correctness of the judgment below rests upon a proper construction of the following written contract between plaintiffs and said defendant Kissee:

CONTRACT AND AGREEMENT FOR THE SALE OF LANDS.

We, the undersigned, R. C. Kissee, for himself, his heirs and assigns of Christian Co., Mo., and H. S. McPherson, of Taney Co., Mo., representing the Bradleyville Milling Co., this day make and enter into the following contract, to-wit: The first named party, R. C. Kissee, for himself, his heirs and assigns agrees and binds himself, his heirs and assigns for, and in consideration of forty acres of land, in Taney Co., Mo., now owned by the Bradleyville Milling Co., and 75-100 of an acre, in Taney Co., Mo., owned by H. S. McPherson and J. M. Adams, and 85-100 of an acre in Taney Co., Mo., part of N W of the N W of 11-24-18, on which is situated the Bradleyville, Mo., Mill, and about thirty-five head of hogs, one log wagon, all machinery, stocks and fixtures belonging to the Bradleyville, Mo. Mill, to sell, transfer and set over to the said H. S. McPherson or any person or persons he may designate, one farm of 240 acres located in Dade county, Mo. being farm purchased by him (Kissee) from J. W. Baker. It is agreed and understood by and between us, the undersigned R. C. Kissee, and H. S. McPherson, that each of us furnish good abstract of title to premises described and that we furnish each other a general warranty deed, duly executed and acknowledged to premises described and owned and controlled by each of us; the lands and property agreed to be sold by H. S. McPherson and the Bradleyville Milling Company to be free and clear of any incumbrances whatever; the lands agreed to be sold by R. C. Kissee, to be sold subject to two deeds of trust to secure payment of $ 5,000.00. It is further agreed and understood by us, R. C. Kissee and H. S. McPherson, that the deeds to property are to be made and delivered to J. S. McPherson's office, Sparta Mo., on or before July 1st, 1906. It is further agreed by and between us, R. C. Kissee and H. S. McPherson, that the damages for the non-compliance with this agreement shall be the sum of $ 500.00 to be paid from our estates in the event of our death, the same be due and payable on 2d day of July, 1906. In witness whereof we have this day set at our hands. This the 16th day of June, 1906. This contract to be left in the possession of J. S. McPherson.

R. C. Kissee,

H. S. McPherson,

Representing the Bradleyville Milling Company.

The defendant W. N. Adams is simply holding the property under a contract with his codefendant Kissee, and announces his willingness to surrender possession thereof to whoever may prevail in this action. The trial court adjudged him to have no interest in the subject-matter of this controversy.

The defendant Kissee admits that when the foregoing contract was signed, there were outstanding mortgages against his farm in Dade county, as follows: A first mortgage of $ 4000 to a Kansas City firm, a second mortgage of $ 1000 to the Golden City Bank, and a third mortgage for $ 803 in favor of the same parties to whom the first mortgage was given. However, he avers that the $ 803 mortgage was given for part of the interest on the $ 4000 loan and really did not create a separate indebtedness, and hence the contract truthfully represented the incumbrances on the property at $ 5000. While these mortgages were not introduced in evidence, it appears reasonably clear by the record that the $ 4000 mortgage could not have been paid off and discharged without paying the third mortgage of $ 803 in full.

OPINION.

The issue is, Did the defendant Kissee correctly describe the incumbrances on his farm, in the foregoing contract? In other words, Did the existence of the third mortgage for $ 803 constitute a material variance of the contract? The statement in the contract that Kissee's land was incumbered by two deeds of trust to secure the payment of $ 5000 means, (1) that the land was only incumbered by two mortgages; and, (2) that said mortgages could be paid off with $ 5000. Said recital does not convey the idea that there was in addition to the face of those mortgages $ 803 interest which must be paid before the principal debt could be extinguished; so that whether we class the $ 803 mortgage as a part of the interest on the first mortgage or as an independent debt, its existence must be held to constitute a substantial incumbrance of which the plaintiffs had no knowledge...