Nance v. Sexton
| Decision Date | 20 May 1918 |
| Citation | 203 S.W. 649,199 Mo.App. 461 |
| Parties | J. M. NANCE, Appellant, v. A. W. SEXTON, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court.--Hon. Vernon L. Drain, Judge.
AFFIRMED.
Judgment affirmed.
Sheppard & Sheppard for appellant.
Nat M Shelton and C. C. Buster for respondent.
Plaintiff's action is for damages alleged to have accrued to him by reason of defendant having repudiated a sale and exchange of farms and refused to carry out the contract. The trial court sustained a demurrer to the evidence and judgment was rendered for defendant.
It appears that plaintiff was a real estate agent residing in Stoddard county in southeast Missouri and that defendant was a farmer residing in Macon county, in the northeast part of the same State. Plaintiff frequently went about the State in pursuit of his business. He met defendant in Macon City the county seat of Macon county and proposed to trade him a farm in Stoddard county for plaintiff's farm. This meeting in Macon City was without prearrangement and defendant did not know that plaintiff was a real estate agent. The only understanding which can be had of the record is that plaintiff's proposal was to exchange his own farm for defendant's, the difference in value and acreage and encumbrances to be adjusted. Plaintiff went out with defendant to look at the latter's farm. They returned to Macon City and went down together to Stoddard county that defendant might look over that farm. Plaintiff took defendant over it and the latter was pleased. A written contract of exchange was drawn between them and signed by each, in which plaintiff is stated to be the owner of the Stoddard farm, in words such as: "Each party thereto;" and "Each are conveying" and "Their said described land;" and "Each party is to give possession of their tracts of land," etc.
Defendant returned home. In the course of several days plaintiff, who had been in Illinois, came back by way of Macon City, when he was informed by defendant that his wife refused to make the exchange and would not sign a deed and that he was afraid he could not carry out the contract. Something transpired in plaintiff's conversation, or conduct, that caused defendant to ask plaintiff if he was the owner of the land he was undertaking to sell. After some evasion, plaintiff admitted he was not. Thereupon defendant immediately repudiated the contract, plaintiff returned home and in a few weeks instituted this action.
Defendant having repudiated and rescinded the contract, left plaintiff free to institute a action for damages without the necessity of tendering a deed in performance of his part of it. [Armstrong v. Dunn, 163 Mo.App. 701, 147 S.W. 509.] But the question presented by defendant's act is whether one who is not the owner of land he contracts to sell and is without any claim of title, can make a valid contract of sale? There are decisions by courts of the highest standing, that he may, if at the time of performance he is able to furnish a good title. [Dresel v. Jordan, 104 Mass. 407, 414; Backman v. Park, 157 Cal. 607, 108 P. 686; Rutland v. Brister, 53 Miss. 683, 686.]
Other authorities qualify that rule with the statement that the purchaser must have known that the seller was not the owner.
Others qualify the rule by the condition that the vendor must have had some claim or right to the land.
We are inclined to the qualification last stated and to hold, that if one has no title, nor bona-fide claim of owner-ship, and this is unknown to the proposed purchaser, he cannot make a valid executory contract with such purchaser, and that the latter may repudiate such contract upon learning the fact before executing the contract. It seems to us that a contract of that character lacks mutuality. It is a contract such as that if the true owner of the property conveys it to the purchaser, or to the adventurer, and the latter to the purchaser, all is well; but if the owner refuses and the adventurer is insolvent the deceived party must pocket his loss. And even if the pretended vendor is solvent, the purchaser might want specific performance instead of damages yet he could not get it, since it would be entirely out of the power of the former to perform. The risk is all with the purchaser; a risk he should not be required to take unless, of course, he knows the fact. It is not a fair answer to this to say, that if the purchaser does not...
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