Owsley v. Jackson

• Decision Date: 01 April 1912
• Parties: OWSLEY v. JACKSON et al.
• Court: Missouri Court of Appeals

144 S.W. 154

163 Mo. A. 11

OWSLEY v. JACKSON et al.

Springfield Court of Appeals. Missouri.

April 1, 1912.

1. EVIDENCE (§ 385) — PAROL EVIDENCE TO VARY WRITTEN INSTRUMENTS.

In the absence of fraud or mistake, parol evidence is not admissible to vary the terms of a written instrument by showing that the intent of the parties or that their real agreement was different from that expressed in the instrument.

2. EVIDENCE (§ 443) — PAROL EVIDENCE TO VARY WRITTEN INSTRUMENTS — CONTEMPORANEOUS COLLATERAL AGREEMENT.

Where land was conveyed by an ordinary warranty deed, a contemporaneous oral agreement that the vendors should procure a record title to the lands and furnish an abstract to the purchaser showing the fee-simple title, which was part of the inducement of the bargain, may be established.

3. FRAUDS, STATUTE OF (§ 71) — AGREEMENT RELATING TO LAND— "CONTRACT FOR SALE OF LAND."

An agreement that the vendor should procure a record title to the land, and furnish an abstract to the purchaser showing the fee-simple title, is not within the statute of frauds (Rev. St. 1909, §§ 2783, 2784), requiring contracts for the sale of lands and for the sale of goods, wares, and merchandise over a certain amount to be in writing.

Appeal from Circuit Court, McDonald County; Carr McNatt, Judge.

Action by F. T. Owsley against Harry Jackson and another. From a judgment for plaintiff, defendants appeal. Affirmed.

J. A. Sturges, of Pineville, for appellants. O. R. Puckett, of Pineville, for respondent.

NIXON, P. J.

The defendants sold the plaintiff certain lands and made him warranty deeds, and this is an action upon defendants' verbal agreement to procure a record title of the lands, and furnish an abstract to the plaintiff showing a fee-simple title to the same. The plaintiff obtained judgment, and defendants have appealed.

On the 18th day of July, 1905, plaintiff bought of defendants a tract of about eight acres of land in section 34, township 21, range 31, in McDonald county, Mo., being a part of what was formerly known as the old Samuel Jackson mill site, and the consideration was $1,050. On that day the defendants made and delivered to plaintiff a warranty deed in the ordinary statutory form to said land, containing the usual covenants of warranty of title, seisin, and quiet enjoyment. Plaintiff at once took possession under said deed, and has since remained in the continuous, peaceable, undisturbed possession of the same, and his right or title has not been questioned or in any way assailed. On July 31, 1906, the plaintiff bought of the defendants another tract of land in the same section, being the remainder of the Samuel Jackson farm that had been used in connection with the mill site. The defendants on that day executed and delivered to plaintiff their warranty deed to the same for the expressed consideration of $1,000. This deed was also in the statutory form, and contained covenants the same as in the former deed. About 60 acres were conveyed by this deed. On the delivery of the deed, the plaintiff at once entered into possession of this second tract, and has since remained in the quiet, peaceable, undisturbed possession of the same; his right or title not having been questioned or assailed. At the time of the plaintiff's negotiations for the purchase of the eight-acre tract of land, and as an inducement to him to make the purchase, the defendants made a separate and independent verbal agreement, other than the warranty deed, by which they promised plaintiff that, if the record title to said land was found to be defective, they would have the same rectified within a reasonable time, and furnish plaintiff with an abstract of title showing record evidence sufficient to prove ownership in fee simple in said land to said grantors, the defendants, and would procure for plaintiff a marketable and commercial title thereto. At the time plaintiff purchased the second tract of 60 acres, on July 31, 1906, as an inducement to him to make said purchase, defendants made substantially the same verbal agreement.

In August or September, 1909, the plaintiff employed Mr. O. R. Puckett, an attorney of Pineville, Mo., to make an examination of the title to the lands described in the two deeds; such examination showing the following conditions: (1) In the year 1858 a small portion of said lands was conveyed by good and sufficient deeds to Ambrose G. Williams, and there is no record evidence that he ever parted with his title thereto. (2) About the same time another portion of said lands was conveyed by good and sufficient deeds to Nathan Bramlett, and there is no record evidence that he ever parted with his title thereto. (3) In 1878 a portion of said lands was conveyed to D. M. Davenport by good and sufficient deeds, and there is no record evidence that he ever parted with his title thereto. (4) On April 6, 1904, J. E. Hinton, with numerous others, including these defendants as heirs of Samuel Jackson, deceased, made a warranty deed to Mary J. Jackson, intending to convey all the lands included in both deeds to Owsley, the plaintiff herein, but in which a part of the description was erroneous. Mary J. Jackson afterwards conveyed, by correct description, the lands to these defendants. In September, 1909, the plaintiff through his attorney reported the condition of the title to the defendants, and requested that suits be brought by them to perfect the same. Defendants did not comply with this request, and on August 30, 1910, the plaintiff, by his attorney, brought three suits to perfect the title, two being against the unknown heirs of Ambrose G. Williams, the unknown heirs of Nathan Bramlett, and the unknown heirs of D. M. Davenport, and one against J. E. Hinton and others, to correct the erroneous description in the deed above described. For his services in these three suits plaintiff paid his attorney $135, this amount including all costs of the suits. Evidence was tendered to prove the charge reasonable, and the attorney for the defendants stated that he conceded such charge to be reasonable. When plaintiff's evidence was offered, the defendants objected to the introduction of the same because the agreement sought to be proved...