Melton v. Smith

• Decision Date: 31 October 1877
• Parties: MELTON v. SMITH, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 315

MELTON

v.SMITH, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Moniteau Circuit Court.--HON. T. M. RICE. Judge.

T. W. B. Crews & Charles M. Napton for appellant.

The points relied on by the defendant to defeat a specific performance, are as follows:

1 a. The lapse of five years and nine months from the execution of the title bond to the tender of the purchase money. See Eastman v. Palmer, 46 N. H. 479; Fry, on Sp. Perf. 412 to 430; O'Rourke v. Percival, 2 Ball & B. 58; Shuffleton v. Pitzer, 1 Morris (Iowa) 427; Brashier v. Gratz, 6 Wheat. 528; Pratt v. Carroll, 8 Cranch. 471; Watson v. Reid, 1 Russ. & Mylne 236; McNeil v. Magee, 5 Mason 244; Benedict v. Lynch, 1 John. Ch. 370; Haughwout v. Murphy, 6 C. E. Green 118; Southcomb v. The Bishop, 6 Hare 213; Eads v. Williams, 4 De G. McN. & G. 691.

b. The fact that time was of the essence of this contract. In 1860 General Smith was endeavoring to secure the location of the Pacific Railroad through the neighborhood where Sedalia now is; with this view he laid off a town and began to sell lots. He desired as many persons as possible to buy and improve the property, and wished all the purchasers to move to the place, improve the property bought and establish a business. He contracted to sell to Atkisson cheap, as he was a good and energetic business man, and a part of the consideration was that Atkisson should move to Sedalia and start business. The benefits to have been derived by General Smith in this way were never realized. By a performance of the contract now Smith could not receive all the benefits contemplated at the time the contract was by its terms to have been performed. The parties cannot be placed in statu quo. The property at the date when the purchase money was due, was worth less than when the contract was made, and was fluctuating in value. See Hipwell v. Knight, 1 Yo. & Col, 415; Alloway v. Braine, 26 Beav. 757; McBride v. Weeks; 22 Beav. 539; Doar v. Gibbs, 1 Bailey's So. Car. Eq. 371. Seaton v. Mapp, 2 Collier 556; Holt v. Thomas, 8 Peters 420; Crofton v. Ormsley, 2 Scho. & Lef. 604; Wright v. Howard, 1 Sim. & S. 190; Parker v. Frith, 1 Sim. & S. 199.

Secondly. The great rise in the value of the property. See De Cordova v. Smith, 9 Tex. 129; Alley v. Deschamps, 13 Ves. 224; Smith v. Lawrence, 15 Mich. 499; Sugden on Vendors, 1 Vol., p. 413 or 300. Thirdly. Abandonment of the contract. See Baldwin v. Salter, 8 Paige 473; 1 John. Ch. 429; 1 Oregon 355; 19 Ills. 519; Feay v. De Camp, 15 Serg. & R. 227; Bannister v. Read, 6 Ills. 92; Cromwell v. Wilkinson, 18 Ind. 370; Fletcher v. Cole, 23 Vt. 114; 2 Cal. 584; 9 Ala. 869.

b. The assignment of the bond did not give Melton a right of action against defendant. Marshall v. Means, 12 Ga. 66; Prosser v. Edwards, 1 Younge and Coll. 481; Sto. Eq. Jur. § 1040, h. Redfield's Ed.; Iglehart v. Armiger, 1 Bland, Ch. (Md.) 523.

4. The recission of contract. See Kerr v. Bell, 44 Mo. 120.

5. The general principles of equity in regard to specific performance, and herein of the growth of Sedalia and its uncertain condition when Atkisson left. Stoutenburgh v. Tompkins, 1 Stockt. 337.

6. There is no estoppel against the defendant. Pickard v. Sears, 6 Ad. and E. 469; Stephens v. Baird, 9 Cowen 274; Welland Canal Co. v. Hathaway, 8 Wend. 480; Taylor v. Zepp, 14 Mo. 482; Terrill v. Boulware, 24 Mo. 254; 3 Washb. on Real P. p. 70, 72; 31 Penn. St. R. 331.

Philips & Vest for respondent.

I. Time is not of the essence of this contract. 33 Maine 534; 2 Story's Eq. 776, note 1; Taylor v. Longworth, 14 Pet. 173.

II. The making of the title bond, and taking the note, constituted an equitable mortgage. 2 Story's Eq. 789; Smith v. Robinson, 13 Ark.; Adams v. Cowherd, 30 Mo. 458; Amory v. Reilly, 9 Ind. 490; 14 Cal. 73; 15 Cal. 194; 5 S. & M. 730; 57 Ala. 318; 18 Ala. 37.

( a) The retention of the title bond by Atkisson and the note by Smith, are facts totally inconsistent with the idea that either of them considered or understood the trade to be as cancelled or abandoned. Blodget v. Greene, 27 Mo. 524; Gibbs v. Champion, 3 O. R. 335; 3 Hume 335.

III. The vendor's contract was a joint one, and required a joint deed by, or separate deeds from Bouldin and Smith. The absence of Bouldin within the Confederate lines, from July, 1861, to the restoration of commercial relations between Missouri and Texas in 1865-6, destroyed the vendors' ability to specifically comply with their contract during that period. The depositions of Atkisson and Bouldin show what transpired between them during the war, evidencing the willingness of the former and the inability of the latter to comply with the contract. 2 Story, Eq. s. 778. Dulby v. Pullim, 3 Sim. 29; 1 Hill. Vend., 54; 20 Ala. 435; Calmis v. Buck, 4 Bibb 353-4; Griswold v. Waddington, 16 J. R. 478; Life Ins. Co. v. Hall, 7 Am. Law Reg. 610.

IV. Smith could not, without some positive act manifested to his vendee, much less, as he assumes in his testimony, by mere mental resolution, uncommunicated, rescind this contract of sale. Henry v. Graddy, 5 B. Mon. 452; Walters v. Miller, 10 Iowa 429. This was a joint contract of Smith and Bouldin. How could Smith, of his own motion, rescind it?

V. There was no abandonment of the property in question by Atkisson. 3 Wash. Re. Prop. 60, 61, 66; Landers v. Perkins, 12 Mo. 256; Fine v. St. Louis Public Schools, 30 Mo. 175; Clark v. Hammerle, 36 Mo. 639; Ferris v. Corru, 10 Cal. 631; Warring v. Crow, 11 Cal. 365, 366; Richardson v. McNulty, 24 Cal. 344.

VI. Smith is manifestly estopped as against Melton from claiming that Atkisson had no interest in this property when Melton bought. Melton's uncontradicted testimony shows he made his purchase upon the faith of Smith's conduct in trying to sell Atkisson's interest, and to buy claims against him, and Smith's assertions to him. Langsdorf v. Field, 36 Mo. 440; Chouteau v. Goddin, 39 Mo. 229; Rice v. Bunce, 49 Mo. 231.

VII. Smith had ample remedy in law and equity for his protection. The courts were open to him. He could have proceeded by attachment against Atkisson, and seized the $500 of furniture and $3,000 of lumber; or he could have proceeded in rem against the property and its improvements, by foreclosure of the equity of redemption.

VIII. Appellant's counsel argue that Atkisson's cause of action could not be assigned to Melton. If it is meant by this, to assert that the old doctrines of champerty and maintenance are applicable to this case, we only refer to Sec. 2, Chap. 110, 2d Wag. Stat. Outside of our statute, we understand the rule to be, that all causes of action which survive to the personal representative, in case of death, are assignable, and that in such case the assignee will possess all the equities of the assignor. 12 Mo. 51; 12 Kernan 622; 4 Denio 80; 13 Kernan 333; 15 Mo. 619; 2 Story's Eq. Sec. 1,044; Adams' Eq. 192; Story on Contracts, 447; 21 Mo. 135.

SHERWOOD, C. J.

Melton, as the assignee of James Atkisson, brings this suit for specific performance of a contract respecting certain real estate in the city of Sedalia. Suit brought in August, 1866.

Smith and Bouldin, in 1860, owned the town site of Sedalia, then recently laid out; the former an undivided three-fourths, and the latter an undivided one-fourth interest. The contract made the basis of this proceeding, was entered into November 18, 1860, and shows that Atkisson and McKernan purchased of Smith and Bouldin certain lots, at the price of $600, payable in six months, and for which the note of the purchasers was given. Atkisson and McKernan, immediately on their purchase, proceeded to erect on one of the lots so purchased, (lot 2,) being the lot in controversy, a warehouse, worth some $1,800, and did business therein until, as hereinafter stated. In May, 1861, Atkisson purchased McKernan's interest in the lots, on which, preparatory to the erection of other buildings, large quantities of lumber had been delivered, aggregating in value, together with the improvements made, some $3,000. The sale by McKernan to Atkisson embraced not only his interest in the lots and all improvements, but also in the lumber, as well as in a small stock of furniture, which they had on hand at the time of the sale being effected. Owing to the disturbed condition of the country, which soon thereafter manifested itself, Atkisson did not long remain in business in Sedalia, nor complete the other improvements contemplated; but about June of the last mentioned year, left the place temporarily, leaving a friend in charge of his property during his absence, which absence, owing to the troubled state of the country and to threats of assassination, freely made against him, became a permanent one, and he, in a few months thereafter, left his home in Warsaw and removed with his family to the State of Arkansas, and eventually to the State of Texas, where he now resides. He assigned and transferred his interest in the lots to the plaintiff in June, 1866. Bouldin, who went South also, about the same time, or a few months in advance of Atkisson, and did not rerurn to Sedalia until a little while before the institution of this suit, on his return conveyed to plaintiff his undivided one-fourth interest in the lots. Smith, however, refused to convey in accordance with the title bond, although tendered the purchase money and interest. The court found and decreed for plaintiff; hence this appeal.

1. TITLE BOND: assignment.

I. We entertain no doubt whatever as to the equitable interest of Atkisson being transferable. Our statute (2 W. S., p. 999, § 2,) puts this matter at rest. So do repeated decisions of this court. ( Smith v. Kennett, 18 Mo. 154, and Cas. Cit.; Lumley v. Robinson, 26 Mo. 364; Adams v. Cowherd, 30 Mo. 458; Morgan v. Bouse, 53 Mo. 219; Street v. Goss, 62 Mo. 229.) Atkisson became, by his purchase, the equitable owner of the land; competent to devise or transfer it as such owner; and this independent of the statute referred to. (1...