Owsley v. Jackson
| Decision Date | 01 April 1912 |
| Citation | 144 S.W. 154,163 Mo.App. 11 |
| Parties | F. T. OWSLEY, Respondent, v. HARRY JACKSON et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from McDonald Circuit Court.--Hon. Carr McNatt, Judge.
AFFIRMED.
Judgment affirmed.
J. A Sturges for appellant.
(1) Plaintiff's entire case is based on his right to recover for the breach of a verbal agreement as to the nature and quality of title to be conveyed made at the time of or contemporaneous with the execution of the warranty deeds. It was error to admit any evidence of such contract or submit the same by instruction. All negotiations or agreements were merged in the deeds. Smyth v. Byroff, 156 Mo.App 28; Brauckman v. Leighton, 67 Mo.App. 245; Wheeler v. Ball, 26 Mo.App. 443; State ex rel v. Hoshaw, 98 Mo. 358; Tracy v. Iron Works, 104 Mo. 193; Matheney v. Stewart, 108 Mo. 79; Boyd v. Paul, 125 Mo. 13; Morgan v. Porter, 103 Mo. 140; Miller v. Light & Power Co., 133 Mo. 205; Anthony v. Rockefeller, 102 Mo.App. 331. (2) There is a distinction between the rules which govern the relation of vendor and vendee, before and after the execution and delivery of the deed. Before accepting the deeds plaintiff had a right to insist on a clear title. When the deeds were executed and delivered, the entire matter merged in the deeds and the covenants therein alone prescribed the rights and duties of the parties. Smyth v. Byroff, 156 Mo.App. 28; Wheeler v. Ball, 26 Mo.App. 450.
O. R. Puckett for respondent.
(1) The rule which prohibits the introduction of parol evidence of a contemporaneous agreement does not apply when there is offered in evidence a distinct collateral contemporaneous agreement, not varying the written agreement, though it relates to the same subject matter. Roe v. Bank, 167 Mo. 427; Brown v. Bowen, 90 Mo. 190; Lumber Co. v. Warner, 93 Mo. 384. (2) If there was, when the original contract was concluded, a parol contemporaneous agreement, not inconsistent with the one put in writing, or, if a part only of the contract was put in writing, then such agreement, or the part so omitted, could have been proven. Greening v. Steele, 122 Mo. 294; Howard v. Hardy, 128 Mo.App. 349; Van Meter v. Poole, 130 Mo.App. 436; Harbold v. Custer, 44 Pa. St. 392; Stewart v. Trimble, 15 Pa.Super. Ct. 513; Bennett v. Abrams, 41 Barb. (N.Y.)) 619; Sage v. Truslow, 88 N.Y. 240.
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 eighteenth 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, Missouri, being a part of what was formerly known as the old Samuel Jackson mill site, and the consideration was $ 1050. 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, seizin 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 $ 1000. This deed was also in the statutory form and contained covenants the same as in the former deed. About sixty 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 sixty 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 thereby was not in writing and signed by the parties as required by the Statute of Frauds, and for the further reason that the contracts for the purchase of said real estate were consummated by warranty deeds, and that all prior or contemporaneous agreements, in law, were merged in the deeds.
Where actions in equity are brought to enforce the specific performance of written contracts, or where actions at law are brought to recover damages for breach of the same, and the defense is a contemporaneous or prior verbal contract, the general rule at common law, announced with great uniformity by the courts, is that in the absence of fraud or mistake parol or extrinsic evidence is not admissible to vary, add to, modify or contradict the terms or provisions of the written instrument by showing the intention of the parties or their real agreement with reference to the subject-matter to have been different from what is expressed in the writing, for the reason that when the parties have deliberately put their engagements in writing in such terms as to import a legal obligation without any uncertainty as to the object or extent of their engagements, all previous negotiations and agreements with reference to the subject-matter...
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