Mitchener v. Holmes

• Citation: 117 Mo. 185,22 S.W. 1070
• Parties: MITCHENER v. HOLMES.
• Decision Date: 27 June 1893
• Court: United States State Supreme Court of Missouri

22 S.W. 1070

117 Mo. 185

MITCHENER v. HOLMES.

Supreme Court of Missouri, Division No. 2.

June 27, 1893.

VENDOR AND PURCHASER — DEFECTIVE TITLE — DECREE IN PARTITION — SALE OF WARD'S REALTY — VALIDITY — ACKNOWLEDGMENT TO DEED — SUFFICIENCY — CLOUD ON TITLE — ACTION TO REMOVE — SERVICE.

1. One H. and her minor daughter contracted to sell certain land to plaintiff, agreeing that, unless a good title was tendered, the contract should be void. A deed was tendered, which plaintiff refused to accept, alleging certain errors in the partition of the land in question on the death of the person through whom defendant claimed. It appeared that the commissioners in partition filed their report, describing the shares allotted to each party by metes and bounds, and also filed a plat showing the division. In describing one share in the report an error was made in placing the starting point, so that the land in question was not partitioned at all, but by the plat the division was properly made. Held, that plaintiff could not object to the title tendered on such ground, where the court approved both the report and the plat, and based his decree on both, and where such decree had been entered 50 years, and none of the parties in partition, or their heirs, had laid claim to such land.

2. Where it appears that a person was duly appointed curatrix of a minor, and filed her bond as such, an objection to proceedings by her for the sale of the minor's land, on the ground that she is therein described as guardian, instead of curatrix, will not be sustained.

3. An objection to the validity of the acknowledgment to a deed attested by the notary as "given under hand," on the ground that the notary failed to fix his seal to the same, will not be sustained, where the instrument was admitted to record as duly acknowledged and certified.

4. Nonresident defendants in a suit to remove a cloud on the title to certain real estate may be served by publication.

Appeal from circuit court, Jackson county; R. H. Field, Judge.

Action by Frank B. Mitchener against Lydia A. Holmes. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

On the 8th day of September, 1887, Mrs. Lydia A. Holmes and her daughter, Laura Holmes, claiming to be the owners of 5.85 acres of land in Kansas City, Mo., entered into a contract for the sale thereof to Frank B. Mitchener, for $44,000, to be paid as follows:

"One thousand ($1,000) dollars at signing of this contract, the receipt whereof is hereby acknowledged by the sellers, and which is deposited with William Holmes as part of the consideration of the sale, and the balance whereof is to be payable in the following manner, to wit: Thirteen thousand six hundred and sixty-six dollars and sixty-six cents ($13,666.66) on delivery of deed, about November 15th, 1887, and the balance of purchase money paid in notes due in two or three years from delivery of deed, and to be secured by deed of trust on each lot, separately, to the amount of thirty dollars ($30) per front foot on the corner lot on Chestnut and Prospect avenues, and twenty-four ($24) dollars per front foot on the balance of lots fronting said avenues, and the remainder of the purchase money for an amount on each lot on Montgall avenue as will make up the remainder of the purchase money; all notes to bear interest at 8 per cent. per annum, interest payable semiannually. The seller is to furnish, within ten days of November 1st, 1887, hereof, a complete abstract of title to said property from government, and such certificates as may be required by the buyer, as to judgments and mechanics' liens thereon, from various courts in which judgments would be liens thereon. The seller, also, to pay all state, county, and municipal (including special) taxes, now a lien on said property, excepting the taxes for the year 1888 and thereafter, which are to be assumed and paid by the buyer. If, upon examination, it is found that the seller has a good title in fee to said property, they are to execute and deliver to the buyer a general warranty deed thereto by Lydia A. Holmes, to one-half of said tract, a guardian deed by Julia Simpson to the other one-half of the land, founded on regular proceedings in the probate court of Jackson county, properly executed, and free and clear of all liens and incumbrances whatsoever, except only such as are to be assumed by the buyer hereunder, and concurrently therewith, and as a part of the same transaction; the buyer is to pay the balance, if any, of the said cash payment, and to deliver to the seller the notes, deed of trust, and policy of insurance herein before provided for. If the title is found to he defective, the seller is to have the defects in it rectified within a reasonable time, which is not to exceed 30 days from the date at which transfer of property is to be consummated under this contract; but in case such defects in the title cannot be cured or remedied within that period, and no extension of time is had between the parties, this contract is to be null and void, and the said sum of one thousand ($1,000) dollars, deposited as aforesaid, is to be returned to the buyer. If, though the title is good, and the sellers have kept their part of this contract, the buyer fails to comply with its requirements on his part within twenty days after being furnished with the abstract of title, then the aforesaid deposit of one thousand ($1,000) dollars shall be forfeited to the seller; but, for this cause, this contract shall not cease to be operative between the parties hereto. It is understood and agreed that the grantee is to assume all expense of executing and recording the deeds of trust, except one of them, and also assume any expense in opening Montgall avenue. Time is, and shall be, the essence of this contract; and the sale and the transfer of said property, according to the provisions hereof, shall be consummated within thirty days from date as above. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. Wm. Holmes, Agent for Lydia Holmes and Julia E. Simpson. [Seal.] Frank B. Mitchener. [Seal.]

"The title to the within real estate being found to be defective by the counsel for the buyer, and it being impossible to rectify the same within thirty days from the date at which the transfer of the property was to be consummated, the time within which said defects are to be rectified is hereby extended by mutual consent until the first day of April, 1888, but not to continue longer except by the written consent of the parties hereto. Wm. Holmes, Agent for Lydia A. Holmes and Julia E. Simpson. [Seal.] Frank Mitchener. [Seal.]"

An abstract of title by Messrs. Schuler & Co. was submitted to Mitchener, and by him to his counsel, who gave him the following opinion:

"Kansas City, Mo., Nov. 8th, 1887. Frank Mitchener, Esq., City — Dear Sir: In the examination of the title to five and eighty five hundredths acres of land in the southwest quarter of the north-west quarter of section 10, township 49, range 33, we note the following objections: I. In the partition proceedings of the estate of Jones Lockridge, the commissioners appointed to divide the lands among the heirs manifestly made a mistake in alloting to Thomas J. Lockridge his portion, in leaving a strip of about fifteen acres between the land allotted to John Lockridge and that allotted to Thomas J. Lockridge, which is not allotted to any one. The land which you are about to purchase lies in the west end of this strip. We suggest, therefore, that you obtain quitclaim deeds from all the Lockridge heirs, as to this piece of land. II. In the deed from Joseph Journey to Robert Hudgens, dated July 26, 1866, recorded in Book 47, at page 270, the notary failed to affix his seal to the certificate of acknowledgment. Quitclaim deeds have been obtained from some of the heirs of Joseph Journey, but the following have not made quitclaim deeds: (1) James H. Lucas, who married Martha Jane Journey, daughter of Joseph Journey. Said Martha Jane is now dead, but left surviving her James H. Lucas, her husband, Lillie Lucas, Elwood Lucas, and Russell Lucas, all of whom should make quitclaim deeds to the lands above described. (2) Lawrence Journey, a son of Joseph Journey, who is now in the insane asylum in Missouri. (3) Noah Journey, a son of Joseph Journey, now living in Carrolton, Missouri. (4) Paul Corder, Jr., Lucy E. Corder, John Corder, and Robert Corder, children of Ellen Corder, formerly Ellen Boyd, who married Paul K. Corder. Said Ellen Corder was a daughter of Nancy Boyd, who was a daughter of Joseph Journey, and intermarried with William Boyd, both of whom are now dead. (5) Mary Journey, widow of John Journey, deceased, a son of Joseph Journey, and her children, Catherine E. Journey, who intermarried with John Hussey, and William D. Journey. III. In the deed from Robert Hudgens to Charles B. Warren, dated February 11, 1869, there was nothing to show that he was a single man when he made the deed. Proof should be made that Hudgens was single at the date of said deed. IV. The deed of trust from Aylvin A. Holmes to Grant & Aull, dated January 2, 1883, is not properly released of record. A quitclaim deed should be secured from Grant & Aull, properly releasing said deed of trust. V. With the above exceptions, we find the title, according to the abstract furnished us, to be in Laura Holmes, subject to the dower of Lydia A. Holmes, widow of Aylvin Holmes. Yours, very truly, D., D. & T."

Efforts were made by Judge Holmes, representing the vendors, to meet all of the above objections, and the abstract, as corrected, was, about April 1, 1888, again submitted to the counsel of Mr. Mitchener, and after careful examination they gave this additional opinion:

"Kansas City, Mo., April 14, 1888. Frank Mitchener, Esq., City — Dear Sir: Upon a re-examination of the...