Orr v. Zimmerman

• Decision Date: 31 May 1876
• Citation: 63 Mo. 72
• Parties: WILLIAM ORR, Respondent, v. CORNELIUS ZIMMERMAN, et als. Appellants.
• Court: Missouri Supreme Court

63 Mo. 72

WILLIAM ORR, Respondent,

v.CORNELIUS ZIMMERMAN, et als. Appellants.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Clinton Circuit Court.

S. H. Corn, with T. E. Turney, for Appellants.

James Carr, with H. B. Leach, for Han. & St. Jo. R. R. Co.

I. By the terms of the contract with Ann M. Webb, the Han. & St. Jo. R. R. Co. reserved the right to terminate it, to re-enter and re-sell for non-payment of the purchase money, or for a failure to pay the taxes assessed upon the land. In both particulars respondent was in default for the years 1869 to 1873, inclusive, a period of five years. The exercise of this right reserved is a proceeding in affirmance of the contract, and not in rescission of it--it is enforcing a remedy expressly reserved by the contract itself, and the vendor does not have to put the vendee in statu quo. (Hansbrough vs. Peck, 5 Wall. 497; Green vs. Green, 9 Cow. 46; Ketchum vs. Everston, 13 Johns. 359; Dowdle vs. Camp, 12 Johns. 457; Ellis vs. Hoskins, 14 Johns. 363; Haynes vs. Hart, 42 Barb. 20; Rounds vs. Baxter, 4 Greene, 454; Morton vs. Chandler, 6 Greene, 142; Seymour vs. Barrett, 14 Mass. 266; Cartwright vs. Morgan, 6 Gray, 412; Page vs. Cole, 6 Clarke, 153; Walters vs. Miller, 10 Ia. 427; Donaldson vs. Waters, 30 Ala. 175; Wheeler vs. Mather, 56 Ill. 241; Illingworth & Clark vs. Miltenberger, 11 Mo. 80.)

II. When, in an executory contract of sale like the one under consideration, the right is given to the vendee to enter into possession, and the right to terminate the contract and re-enter for default in payment of the purchase money is reserved to the vendor, the vendor may, on default, re-enter and terminate the contract without notice or demand of possession, or demand of amount due, or tender of a deed; or he may sell the land to another party. (Doolittle vs. Eddy, 7 Barb. 74; Stone vs. Sprague, 2 Barb. 509; Hotalling vs. Hotalling, 47 Barb. 163; Moore vs. The Mayor, etc., of City of Jefferson, 45 Mo. 202.)

J. E. Merryman and T. J. Porter, with Lucas & Harwood, for Respondent, cited: O'Fallon vs. Kennerly, 45 Mo. 124, and cases cited; 21 N. J. Eq., 494; 13 Ohio St. 306; 49 Mo., 107.)

NAPTON, Judge, delivered the opinion of the court.

To understand the object of this proceeding, it will be most convenient to state the facts upon which it is based, especially as they mainly appear from written documents, contracts, receipts, deeds, etc.

The petition was filed in 1873. On the 1st of February, 1866, the Han. & St. Jo. R. R. Co. sold to one Ann M. Webb eighty acres of land for $1,360, or $17 per acre, payable in ten annual instalments, of $136 each, with interest at six per cent., payable annually in advance, the first payment to be made February 1, 1867, and others at the corresponding date of succeeding years, the last payment being due Feb. 1, 1876. The contract contained a receipt for $81.60, interest in advance for the first year; it contained stipulations for inclosing and improving certain proportions of the land annually, and prohibitions against removing timber except for fences or building, and covenant for the punctual payment of interest and principal, and also for paying the taxes. The contract also contained the following stipulation: “And it is agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in this contract. And in case the second party shall fail to make the payments aforesaid, and each of them punctually, and upon the strict terms and times above limited, and likewise to perform and complete all and each of her agreements and stipulations aforesaid strictly and literally, without any failure or default, then this contract, so far as it may bind said first party, shall become utterly null and void, and all rights and interests hereby created or then existing in favor of the second party, or derived from her, shall utterly cease and determine, and the right of possession, with all equitable and legal interest in the premises hereby contracted, shall revert to and re-vest in said party, without any declaration of forfeiture or act of re-entry or any other act of the said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or services performed, as absolutely, fully and perfectly, as if this contract had never been made. And said party of the first part shall have the right, immediately upon the failure of the party of the second part to comply with the stipulations in this contract, to enter upon the land aforesaid and take immediate possession thereof, together with the improvements and appurtenances thereto belonging. And the said party of the second part doth covenant and agree that she will surrender unto the said party of the first part the said land and appurtenances without delay or hindrance, and no court shall relieve the party of the second part from a failure to comply wholly and literally with this contract.”

This contract was signed by both parties, and no notes were given, the contract being executed in duplicate. On this contract were indorsed receipts for money, to-wit: March 23, 1869, $40.80; Oct. 16, 1869, $42.40; June 6, 1868, $228.32, amount of third payment; June 6, 1868, $9.08; May 7, 1869, paid by Wilmarth, $200. This contract was assigned by Anna Webb to J. T. Zimmerman, on October 18th, 1867; on the 21st of September, 1868, J. T. Zimmerman assigned the same to D. G. Wilmarth, and executed a quit-claim deed to Wilmarth for the tract of eighty acres, and another tract of eight acres lying north of the railroad and adjoining the first tract. On the 15th of July, 1871, said Wilmarth assigned the contract to plaintiff, Orr, and executed a quit-claim deed to Orr for both tracts, for the consideration expressed of $5,000.

At the date of this assignment and deed to Wilmarth, Joseph T. Zimmerman owed Wilmarth $1,618 for money lent, and also for two notes of Zimmerman & Son, one to Harwood for $200, dated in 1869, and payable in eighteen months, and the other to House & Brown, $272, dated July 24, 1869, and payable five months after date. The land in question was, at the date of Wilmarth's purchase, unimproved and worth from twenty to thirty dollars an acre; at the date of this suit it was estimated by witnesses at from sixty to seventy-five dollars per acre. At the request of J. T. Zimmerman, Wilmarth gave his son, Cornelius (one of the defendants) a bond to convey this property to him (Cornelius) on the payment of this $1,600, and the two notes above referred to, and interest. In 1870 Sylvester Zimmerman, who lived in Kansas, and was a brother of J. T. Zimmerman (then dead), came to Cameron, and was informed of the...