Pratt v. Canfield

• Decision Date: 31 October 1877
• Citation: 67 Mo. 50
• Parties: PRATT v. CANFIELD, Appellant.
• Court: Missouri Supreme Court

67 Mo. 50

PRATT

v.CANFIELD, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Linn Circuit Court.

W. H. Brownlee for appellant.

S. P. Huston for respondent.

HENRY, J.

The plaintiff, Pratt, sued the defendant in the Common Pleas Court of Linn county, to enforce the specific performance of a contract between the parties, by which plaintiff sold and defendant purchased the n w qr. of section 14, township 57 of range 21, in Linn county, Missouri.

The contract was in writing. The price agreed upon was $1,280, to be paid in three payments, the first of which $640, was to be made on the 1st day of January, 1871, and the balance in two equal annual payments, one on the 1st day of April, 1872, and the other on the 1st day of April, 1873, both to bear interest from April 1st, 1871, at seven per cent. per annum. On payment of $640 on the 1st day of January, 1871, Pratt was to execute and deliver to defendant a general warranty deed, conveying to him the said land, and to deliver to him possession of the land “on the 1st day of March, 1871, or as soon thereafter as plaintiff could arrange to do so.” Plaintiff alleged that he had always been, and still was ready and willing to perform said agreement on his part, and to deliver to defendant possession of said land at the time specified in said agreement; that on the 1st day of January, 1871, and at divers times since, he tendered to the defendant his general warranty deed conveying to defendant said land, but defendant refused to accept it and pay the purchase money, or any part of the same, and again tendered said deed in court for the defendant, asking a specific performance. Defendant in his answer admitted the contract as alleged by plaintiff, but denied that plaintiff had a title to the land, alleging that one H. Degraw and Harry Lander were the owners of the land and had sued plaintiff for the same, and that said suit was then pending in this court on appeal from the Linn county circuit court; denied that plaintiff ver tendered him a deed for the land, or that it was at any time in his power to make defendant a deed according to the terms of the contract; claimed by way of recoupment, if the court should decree a specific performance, damages for 500 valuable timber ties of the value of $500, which he charged plaintiff with having cut down and converted to his own use, and asked for a rescission of the contract. The replication denied the new matter set up in the answer. In the Common Pleas Court, at the August term of said court, held in September, 1874, there was a trial of the cause and the court rendered a decree as prayed in plaintiff's petition, from which defendant appealed to the circuit court of Linn county, where it was affirmed, and from that judgment he has appealed to this court.

The evidence of plaintiff's title was a patent from the government of the United States, for the land in question to Abraham Smith, dated June 8th, 1819, a deed from said Smith to Levi F. Stephens, conveying said land to said Stephens, and a deed from said Stephens to plaintiff, dated 21st day of October, 1859. There was no evidence of title in Degraw and Lander, or either of them, or any one else except Pratt, unless the facts hereinafter stated showed an adverse possession of ten years in Degraw under color of title. Although the tract is military bounty land, ten year's adverse possession by Degraw would, under our statute, be necessary to defeat Pratt's title, Pratt's right of entry having accrued before the passage of the act of 1866. Neilson v. The County of Chariton et al., 60 Mo. 386. If Degraw had an adverse possession it commenced in 1865 or 1866. The evidence on this point showed that in 1860, Pratt, by a contract in writing, sold the land to one Morrow, who took possession of the land, made improvements and remained in actual possession until 1864. About that time he moved off the land and was absent from the State for twelve months. He then returned and again went into possession of the land--Degraw says in his testimony under a lease from him. He continued in possession until about the 29th of July, 1870, when the contract between him and Pratt was, by an agreement in writing, rescinded. The following is a copy of the rescinding agreement: “Memorandum of an agreement by and between Isaac V. Pratt, of the first part, and Samuel Morrow, of the second part, witnesseth, the said Morrow hereby surrenders the possession received from the said Pratt on the 6th day of November, 1860, and held under contract of purchase, &c., to this date, of the northwest quarter of section No. fourteen, in township No. 57, north, and range No. twenty-one west, and in consideration of such possession, said Pratt hereby rescinds said contract of purchase, and agrees to let Michael Baker have the...