Pershing v. Canfield

• Decision Date: 31 October 1879
• Parties: PERSHING v. CANFIELD, Appellant.
• Court: Missouri Supreme Court

70 Mo. 140

PERSHING

v.CANFIELD, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Linn Court of Common Pleas.--HON. THOMAS WHITTAKER, Judge.

REVERSED.

Huston & Dobson for appellant.

Plaintiff failed to show either title, or that defendant entered under him; yet asks the court to require the defendant to pay him for an indefeasible title, and that, too, without even a tender of a paper warranty or deed. The agreement on defendant's part to pay, and on plaintiff's part to convey by deed, are mutual; and without tender of a deed plaintiff cannot recover. Dietrich v. Franz, 47 Mo. 85. The contract for a warranty deed, even if tender was made, is not satisfied by a mere paper warranty. The vendor contracts that he has, or will have, an indefeasible title, and must be able at the trial to convey such title. Luckett v. Williamson, 31 Mo. 54; s. c., 37 Mo. 388; Smith v. Busby, 15 Mo. 388.

Geo. W. Easley and A. W. Mullins for respondent.

The law is well settled that one cannot take possession of land under a contract of sale, retain it, and yet refuse to pay the purchase money; if he intends to rescind the contract, he must relinquish his claim to the vendor, and abandon the possession. Smith v. Busby 15 Mo. 388; Ash v. Holder, 36 Mo. 163; Isler v. Egger, 17 Mo. 332; Key v. Jennings, 66 Mo. 356; Mitchell v. McMullen, 59 Mo. 252; Connor v. Eddy, 25 Mo. 75; Cooley v. Rankin, 11 Mo. 645; Barton v. Rector, 7 Mo. 528; Edington v. Nix, 49 Mo. 134; Bryan v. Hitchcock, 43 Mo. 531; Langdon v. Green, 49 Mo. 363; Holland v. Anderson, 38 Mo. 59.

HENRY, J.

On the 28th day of November, 1870, plaintiff sold to defendant 220 acres of land for $750, payable in installments as follows: $187.50 April 1st, 1871, and $562.50 in four equal annual payments from April 1st, 1871, plaintiff agreeing to convey the land to defendant by general warranty deed on payment of the first installment, and defendant to execute a deed of trust on the land to secure the other installments. These stipulations were contained in an article of agreement executed by the parties in which also was the following: “The said Pershing eby delivers to the said Canfield, the possession of said land.” This suit was to recover a balance of unpaid purchase money, and the defense relied upon was, that plaintiff, as to 160 acres of the land, had no title, but that one Love was the owner thereof.

1. VENDOR AND VENDEE: action for purchase money: failure of title: surrender of possession: estoppel.

Defendant was in possession of the land from the date of his purchase to the trial of the cause. He neither surrendered nor offered to surrender to plaintiff the possession. Evidence was introduced by him tending to prove that before he purchased the land of the plaintiff, he had purchased it of Love, and under him took actual possession, and had such possession at the date of his purchase of plaintiff. He was estopped by his agreement with plaintiff from alleging that he held possession under another. He agreed that he took and held possession under plaintiff, and whether he first obtained possession from Love, or not, is immaterial in this case. Although in a controversy between Love and the plaintiff concerning the possession of the land, while Canfield held it, Love would be permitted to show that Canfield held under him, notwithstanding the agreement between Canfield and Pershing. ( Pratt v. Canfield, 67 Mo. 50,) yet Canfield has no right to rely upon that fact in this suit. Holding that he is estopped from denying that he was in possession under Pershing, it is no defense in the suit by Pershing, for the purchase money, that he has no title, as long as Canfield continues in possession under Pershing. Isler v. Egger, 17 Mo. 332.

Smith v. Busby, 15 Mo. 387, cited by appellant's counsel, announces this doctrine. Judge Scott delivering the opinion of the court in the latter case, said: “He, (the vendee,) was put in possession of the land; he received rent for it. He has everything he contracted for. It is unjust to take the land under a contract of sale, retain it, and yet refuse to pay the purchase money. The vendor should have his money or the land, and if the vendee intends to rescind the contract he should relinquish his claim to the vendor and abandon the possession.” But without multiplying authorities on the subject, it is sufficient on this point to say that the case of Harvey v. Morris, 63 Mo. 475, in which the cases cited here by both appellant and respondent are reviewed, is in every respect analogous to this, and there this court held, that one in possession of land under a contract of purchase, although no deed had been executed and delivered by the vendor to the vendee, could not, without surrendering the possession, defeat the recovery of the purchase money by proving that the vendor had no title to the land. Here, after acquiring an unquestionable title from Pershing to 60 acres of the 220 acres purchased, Canfield, without surrendering the possession of any part of the land purchased of plaintiff, attempted to defend the suit for the balance of the purchase money by showing that Pershing had no title to the 160 acres. The court erred against plaintiff in admitting testimony tending to prove that he had no title to the land, and also in permitting the introduction of...