Metz v. Wright

• Decision Date: 13 February 1906
• Citation: 92 S.W. 1125,116 Mo.App. 631
• Parties: METZ, Appellant-Respondent, v. WRIGHT et al., Respondents-Appellants
• Court: Missouri Court of Appeals

92 S.W. 1125

116 Mo.App. 631

METZ, Appellant-Respondent, v. WRIGHT et al., Respondents-Appellants

Court of Appeals of Missouri, St. Louis

February 13, 1906

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

REVERSED.

Judgment reversed.

J. O Barrow and P. H. Cullen for appellant.

(1) The court may at any time correct a clerical error. Ross v Ross, 83 Mo. 102; Coop v. Northcutt, 54 Mo 129; Laxton v. Smith, 50 Mo. 490; Priest v. Masters, 52 Mo. 61; Turner v. Christie, 50 Mo. 147; Allen v. Sales, 56 Mo. 28. (2) It is the policy of the law to uphold judicial sales and look with leniency in minor irregularities. Jones v. Manly, 58 Mo. 559. (3) When the description in an administrator's report of sale differs from the description in the order of sale it will be presumed to be a clerical error. Agan v. Shannon, 103 Mo. 661, 15 S.W. 757; Loring v. Gromer, 110 Mo. 632, 19 S.W. 950; Mitchener v. Holmes, 117 Mo. 209, 22 S.W. 1070; Thompson v. Thompson, 115 Mo. 57, 21 S.W. 1085, 1128. (4) A marketable title is one which a reasonable purchaser, well informed as to the facts and their legal bearing, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. The doubt must be such as affects the value of the land or will interfere with its sale. Mathematical certainty is not required. Todd v. Union Dime Sav. Inst., 128 N.Y. 639; Atkinson v. Taylor, 34 Mo.App. 452. (5) Such defects as the ones complained of by plaintiff in the description do not render the title unmarketable. Mitchener v. Holmes, 117 Mo. 185. (6) There is no implied covenant in a contract of sale that the title will be such as the vendee may be willing to accept or that his attorney may pronounce good and marketable. Green v. Ditsch, 143 Mo. 12, 44 S.W. 799. (7) The will of Robert Rose manifests a clear intention that testator desired to vest title to 120 acres of land in Asbury Rose, and charge it to him as an advancement in the sum of $ 600. The will describes the land. The partition proceedings is based on the will, recites the advancement of real estate charged in the will, deducts it from Asbury's share of the estate, and all the heirs being parties to the partition proceedings, the clear effect of the judgment is to vest in Asbury W. Rose an unquestionably good record title to the land in controversy. Allison v. Chaney, 63 Mo. 279; Nichols v. Boswell, 103 Mo. 151, 15 S.W. 343; Cochran v. Thomas, 131 Mo. 258, 33 S.W. 6; Lindell R. E. Co. v. Lindell, 142 Mo. 61, 43 S.W. 368. (8) It is sufficient if defendants had good title any time before judgment. That the title could have been made marketable does not admit of doubt, and when plaintiff refused to take the title, even if made perfect, he committed the first breach and cannot recover. Scannel v. Soda Fountain Co., 161 Mo. 621, 61 S.W. 889; Luckett v. Williamson, 37 Mo. 395; Isaacs v. Skrainka, 95 Mo. 524, 8 S.W. 427; Baldwin v. Salter, 9 Paige 473; Oakey v. Cook, 41 N.J.Eq. 364; Jenkins v. Fahey, 73 N.Y. 355; Dressell v. Jordan, 104 Mass. 416. (9) The failure to show the issuance and recording of a patent did not render the title unmarketable. The certificate of entry was sufficient. R. S. 1899, sec. 3054; Wirth v. Branson, 98 U.S. 121.

Fry & Rodgers for respondent.

(1) Appellant contracted to furnish plaintiff an abstract "showing good and merchantable title." A title which is doubtful or non-marketable is not a good title. "Every purchaser of land has a right to demand a title which shall protect him from anxiety, lest annoying if not successful suits be brought against him and probably take from him or his representatives, land upon which money was invested. He should have a title which would enable him not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value." Waterman Specific Performance, sec. 412; Lucket v. Williamson, 31 Mo. 54; Mitchner v. Holmes, 117 Mo. 185, 22 S.W. 1070; Mastin v. Grimes, 88 Mo. 478; Green v. Ditsch, 143 Mo. 1, 44 S.W. 799; 1 Ballard on Real Property, sec. 430; 3 Ballard on Real Property, sec. 767; Bruce v. Wolfe, 102 Mo.App. 389, 76 S.W. 723; Constantine v. East, 35 N.E. 844. (2) The judgment and proceedings in the probate court were erroneous and not simply irregular. Therefore the probate court had no province to correct, modify or set aside the proceedings at a subsequent term. The proceeding therefore by Wm. L. Wright, agent, in 1903, did not correct the title. Orvis v. Elliott, 65 Mo.App. 96; Hall v. Lane, 123 Mo. 635, 27 S.W. 546.

OPINION

BLAND, P. J.

Plaintiff Metz and defendant Wright entered into the following articles of agreement:

"Articles of agreement made this seventeenth day of October, 1903, by and between W. L. Wright, agent, of Vandalia, Audrain county, State of Missouri, party of the first part and A. H. Metz, of Forrest, Livingston county, State of Illinois, party of the second part.

"Witnesseth that the said party of the first part, in consideration of the promises and agreements of the said party of the second part hereinafter contained hereby agrees to convey to said party of second part by general warranty deed with dower of his wife relinquished, properly acknowledged, the following described real estate, situated in the county of Ralls, and State of Missouri, to-wit:

"The east half of south one-half northwest and the east one-half of southwest quarter of section 15, townships 53-5.

"Said conveyance to be subjected to right of way of all public roads as they are now located, subject also to the taxes for the year of 1904, which the said party of the second part agrees to pay, said deed to be executed contemporaneously with this agreement and placed in escrow with Missouri Land Co., or F. & M. Bank of Vandalia, Missouri.

"The said party of the second part, in consideration of said conveyance, has this day paid to said party of the first part the sum of dollars ($ ---), the receipt of which is hereby acknowledged, and agrees to pay as additional consideration the further sum of five hundred dollars ($ 500), on the first day of March, 1904, and his stock of groceries at Forrest, Ill., said stock to be invoiced at market value and five per cent added for carriage, fixtures at their market value and the balance of purchase price of $ 5,400, by trust deed on said land at five per cent.

"Said party of the first part agrees to furnish to the party of the second part an abstract of the title of said real estate on or before March 1, 1904, showing, good and merchantable title, certified to by competent abstracters and shall surrender and give possession on the first day of March, 1904, possession to be delivered by said first party to second party in as good order and repair as same now are, usual and ordinary wear and tear, and unavoidable accident by fire or otherwise or providential destruction only except . Said first party to keep buildings on said premises insured until possession is turned over to said second party.

"It is mutually agreed by and between the parties hereto that time shall be an essential part of this contract, and that all the stipulation and covenants herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.

"Witness the hands and seals of the said parties on the day and year first above written.

"Purchase price $ 5,400. Cash March 1st, $ 500. Grocery stock to be invoiced soon as title to land is established. Balance trust deed on said land to bear interest from March 1, 1904.

(Seal.) "W. L. WRIGHT.

(Seal.) "A. H. METZ.

"First party to pay for insurance at $ 2.00 per month for unexpired term and to allow interest at rate of five percent per annum for amount over $ 500 the grocery stock invoices."

On November 9, 1903, plaintiff and defendant made the following supplemental agreement:

"It is hereby agreed that if first party cannot get a correct abstract or deed from Dunbar, guardian to southeast of northwest quarter 15-53-5, that first party shall have time to take the matter through the Missouri probate or circuit court by giving bond for the amount of the purchase price of said land, limited to April 20, 1904, for completion.

"W. L. WRIGHT,

"A. H. METZ."

In compliance with the supplemental agreement, Wright, as principal, and the other defendants, as sureties, executed and delivered to plaintiff the following bond:

"November 9, 1903.

BOND IN TRUST.

"Know all men by these presents, that we, W. L. Wright and C. B Ellis, of Vandalia, Mo., as principal, and F. B. Detienne, as security, acknowledge ourselves indebted to Mr. A. H. Metz, of Forrest, Ill., in the sum of three thousand dollars, for the payment whereof we bind ourselves, our heirs, executors and administrators.

"The condition of the above obligation, that whereas the said W. L. Wright and C. B. Ellis, of Vandalia, Mo., shall deliver to the said A. H. Metz, of Forrest, Ill., warranty deed and abstract showing good title in the party who deeds the land of the southeast one-fourth of the northwest one-fourth and the east half of the southwest one-fourth all in section fifteen (15), township fifty-three (53), range five (5), west, Ralls county, Missouri, containing one hundred and twenty acres (120) more or less according to U.S. survey, and whereas in failure to comply with the above condition we, W. L. Wright and C. B. Ellis, of Vandalia, Mo., shall turn over to said A. H. Metz, of Forrest, Ill., the amount equivalent to their stock of merchandise as will be invoiced on November 9, 1903.

"In case of failure...