Nixon v. Franklin

• Decision Date: 09 April 1956
• Docket Number: No. 45028,No. 2,45028,2
• Citation: 289 S.W.2d 82
• Parties: Albert E. NIXON and Ellen Gertrude Nixon, Appellants, v. Charles H. FRANKLIN, Mary C. Franklin, H. Inks Franklin, Eleanor Franklin, Coxie M. Franklin and Alladee F. Franklin, Respondents
• Court: Missouri Supreme Court

Page 82

289 S.W.2d 82

Albert E. NIXON and Ellen Gertrude Nixon, Appellants, v. Charles H. FRANKLIN, Mary C. Franklin, H. Inks Franklin Eleanor Franklin, Coxie M. Franklin and Alladee F Franklin, Respondents.

No. 45028.

Supreme Court of Missouri, Division No. 2.

April 9, 1956.

J. W. Grossenheider, Lebanon, C. W. Terry, Camdenton, for appellants.

Richard C. Collins, Bolivar, Theo. G. Scott, Buffalo, for respondents.

STORCKMAN, Judge.

Plaintiffs, as purchasers of 160 acres of land in Dallas County, brought suit in two counts against the defendants as vendors. The first count was for a rescission of the transfer and restitution of the purchase price together with compensation for improvements in the total sum of $19,198.74. The second count was for punitive damages in the sum of $5,000. The case was tried by the court without a jury and judgment was in favor of the defendants and against the plaintiffs on both counts. The plaintiffs have appealed.

The first amended petition in Count I charges that the defendants conveyed the farm land to plaintiffs by warranty deed; that prior thereto the defendants 'represented to the plaintiffs that they had an indefeasible estate in fee in said real estate and that they had the right to convey and would convey to the plaintiffs a fee simple title to said land and that the title that defendants would give to the plaintiffs would be a good marketable title' and that such representations were false and fraudulent; that plaintiffs, in reliance on said representations, purchased the real estate for $11,550, and put improvements thereon and paid taxes and insurance in excess of $5,569.64; that they discovered that defendants had not conveyed to them a good marketable title in the summer or fall of 1954 when they attempted to sell the land; that plaintiffs thereupon offered to reconvey the real estate to the defendants by quitclaim deed and requested a return of the purchase price and reimbursement for the permanent improvements but that defendants refused so to do. The second count incorporated by reference the allegations of the first count and charged that 'said fraudulent representations were made by the defendants of these plaintiffs willfully, intentionally, and with malice for the purpose of defrauding these plaintiffs' and prayed for $5,000 as punitive damages.

The defendants' answer admitted the execution of the deed, alleged that 'any and all transactions in this cause were covered by contract and deeds, copies attached hereto,' and denied all other allegations.

The plaintiffs, Albert E. Nixon and Ellen Gertrude Nixon, are husband and wife, and prior to the transaction in question lived in Rawlings, Wyoming. The evidence showed that they had never been in Dallas County, Missouri, before about August 1, 1951, and all they knew about the real estate located there was through real estate dealers' catalogues. Towards evening on August 2 the plaintiffs were taken by a Mr. Rush, a real estate agent with the Globe Realty Company, to the home of the defendants, Charles H. Franklin and Mary C. Franklin, his wife. Because of the lateness of the day they only looked through the house. The next day, August 3, they returned to the Franklin farm at about midday or shortly thereafter and were taken around and shown the farm by Mr. Franklin. The parties then went back to the house where Mr. Nixon got some information about the taxes and the plaintiffs decided to purchase the land. The purchase price was $11,550, and Nixon made a down payment of $2,000 consisting of $1,500 in cash and a $500 check given the next day.

A written purchase agreement signed by Albert E. Nixon and C. H. Franklin was introduced in evidence as Defendants' Exhibit A. It is on a printed form of Globe Realty Company. C. H. Franklin signed as 'Record Owner' and accepted the offer by Albert E. Nixon to purchase the 160 acres located three and one-half miles north of Urbana on Highway 65 for the price and sum of $11,550; it acknowledged the payment of $1,500 in cash. The agreement stipulates that land is to be conveyed 'by general warranty deed free and clear of all encumbrances, taxes, liens or judgments' and follows with a provision 'to assure a merchantable title to the above described property including Abstract certified to date.'

The Nixons had supper with the Franklins and spent the night in their home. The next morning they all went to the Bank of Urbana where Franklin got an abstract out of the safe deposit box and handed it to Nixon. Nixon had no legal or other training fitting him to examine abstracts. There was no lawyer in Urbana and Nixon was so advised. There was some talk of examining the abstract but accounts of what was said differ. After 'fingering' the abstract Nixon returned it to Mr. Franklin. The warranty deed and abstract were left in escrow at the bank until Nixon paid the balance of the purchase price. A Mr. Seaton connected with the bank, who was present at the meeting, was dead at the time of the trial. The wives of Nixon and Franklin were in the room during this meeting, but apparently took no part in the discussion. Nixon gave a check for $500 making the total down payment $2,000. After the meeting, which lasted about thirty minutes, the Nixons left immediately by automobile on their return trip to Wyoming. The balance of the purchase price was mailed to the Bank of Urbana by Mr. Nixon and the warranty deed and abstract of title were sent to him. The agent's commission apparently was $550 and the balance of the consideration was kept by Charles Herman Franklin. The Nixons took possession and moved onto the farm on March 19, 1952, and lived there for approximately two years before the present controversy arose.

The warranty deed dated August 4, 1951, and introduced in evidence as Plaintiff's Exhibit 1, recited that it was 'by and between Charles H. Franklin and Mary C. Franklin his wife, H. Inks Franklin and Elinor Franklin his wife; and, Coxie M. Franklin and Alladee Franklin his wife, of Dallas-Hickory Counties, Missouri, Parties of the first part, and Albert E. Nixon and Ellen Gertrude Nixon, husband and wife, of the county of Carbon, in the State of Wyoming, Parties of the second part, * * *,' It provided that the first parties 'do by these presents Grant, Bargain and Sell, Convey and Confirm unto the said parties of the second part, their heirs and assigns' the 160 acres of land therein described: 'To Have And To Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining unto the said parties of the second part, and unto heirs and assigns forever; the said above named grantors hereby covenanting that they are lawfully seized of an indefeasible estate in fee in the premises, herein conveyed, that they have good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by them or those under whom they claim and that they will Warrant and Defend the title to the said premises unto the said parties of the second part, and unto their heirs and assigns, forever against the lawful claims and demands of all persons whomsoever.' The deed is acknowledged before a notary public in Columbia, Missouri under date of August 4, 1951 and was filed or record on August 28, 1951.

It was stipulated in the record that H. Inks Franklin and Coxie M. Franklin were the only living 'heirs' of Charles H. Franklin and that at the time of trial Charles H. Franklin was 75 years of age and his wife, Mary Franklin, 71 years old. Only twenty of the 160 acres were owned by Franklin in fee simple. The remaining 140 were devised to defendant C. H. Franklin by his father's will 'to have and to hold during his natural life, and at his death to descend to his heirs if any, and if none to fall back to my estate to be equally divided among my heirs, but should any one or more of my children be dead leaving heirs, such heirs shall receive only their parents part.' As to the above facts there is no dispute. The controverted facts generally relate to what was said by defendant C. H. Franklin with respect to his title and the abstract of title on the afternoon and evening of August 3 and at the bank on the morning of August 4. Pertinent facts will be further discussed later in the opinion.

The trial court held that there was no evidence that any of the defendants other than C. H. Franklin made any representation as to the title of the land. As to C. H. Franklin the court found that plaintiffs failed to prove that he had made 'any false representation as to the marketability of the title' and also failed to prove 'that the defendant Charles H. Franklin had knowledge that the title he conveyed by warranty deed to these plaintiffs did not convey a marketable title.' The judgment was in favor of all of the defendants. The plaintiffs on appeal contend that under the law and the evidence a decree should have been rendered in their favor.

There can be no question that the defendants did not deliver to the plaintiffs a good marketable title and the trial court so found, stating: 'There is no question that plaintiffs' title would be considered a nonmarketable title, because if either of Charles H. Franklin's sons would predecease his father, and leave children, such children would take a half interest in the real estate, and if both sons would predecease their father, either with or without children, the plaintiffs' title would be of no value whatsoever.'

A good title has been held to mean and be synonymous with a marketable title. Rogers v. Gruber, 351 Mo. 1033, 174 S.W.2d 830, 831. A merchantable title has the same meaning as a marketable title; it is the kind of title that would not only enable the record owner to hold his land, but to hold it in peace and, if he wishes to sell the land, to be reasonably sure that no flaw or doubt will arise to disturb its market value. Thomas...