Ranck v. Wickwire

• Citation: 164 S.W. 460,255 Mo. 42
• Parties: RANCK v. WICKWIRE.
• Decision Date: 17 February 1914
• Court: Missouri Supreme Court

164 S.W. 460

255 Mo. 42

RANCK v. WICKWIRE.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. APPEAL AND ERROR (§ 758)—BRIEFS—SUFFICIENCY —ASSIGNMENTS OF ERROR.

Where the brief of plaintiff in error though mostly foreign to the assignments of error, submits matters occurring at trial of which he complains, such matters will be reviewed.

2. SPECIFIC PERFORMANCE (§ 29) — SUFFICIENCY OF CONTRACT—DESCRIPTION OF LAND.

While a written contract to convey, sought to be specifically enforced, must distinguish the tract from any other land, it is sufficient if it affords the means of identifying the land in connection with parol evidence, and a contract describing plaintiff's land as "280 acres of land in St. Clair county belonging to" plaintiff sufficiently described the land to enable the description to be made certain by parol evidence, especially where defendant admitted the execution of the contract, and did not rely on the statute of frauds.

3. SPECIFIC PERFORMANCE (§ 39)—CONTRACTS WITHIN STATUTE OF FRAUDS.

If one who makes a parol agreement to convey admits the contract, and does not set up the statute of frauds, the parol agreement may be enforced against him.

4. EXCHANGE OF PROPERTY (§ 4)—CONSTRUCTION OF CONTRACT.

A provision of a contract to exchange lands, which required each party to furnish the other with an abstract showing clear title, with deeds, as soon as the abstracts could be brought down to date, required each party to do these things within a reasonable time.

5. EXCHANGE OF PROPERTY (§ 4) — TIME AS ESSENCE OF CONTRACT.

Time is of the essence of a contract to exchange realty, and to furnish the respective parties with abstracts showing clear title, as soon as the same can be brought down to date.

6. SPECIFIC PERFORMANCE (§ 121)—ACTION— SUFFICIENCY OF EVIDENCE.

In an action for specific performance of a contract to exchange realty, evidence held not to show a bona fide purpose by plaintiff to comply with his contract by furnishing an abstract showing clear title within a reasonable time.

7. VENDOR AND PURCHASER (§ 144)—DUTIES OF VENDOR.

If there is a break or gap in the record of title of land agreed to be conveyed, it is the vendor's duty to discover evidence in pais necessary to satisfy vendee that the title is good; the contract requiring an abstract showing clear title.

8. SPECIFIC PERFORMANCE (§ 95)—DEFENSES —FAILURE TO PERFECT TITLE.

Under the rule that he who seeks equity must do equity, plaintiff's failure to remove defects in his title, shown by the abstract furnished, which, under the contract to convey, was to show clear title, would prevent him from obtaining specific performance.

9. EXCHANGE OF PROPERTY (§ 6)—TENDER OF DEED.

Where the contract to exchange realty provided that the parties should deliver deeds to the respective lands at the time they exchanged abstracts, plaintiff should have at that time tendered his deed to defendant, instead of sending it to a third person, and only tendering it to defendant when an action for specific performance was brought.

10. SPECIFIC PERFORMANCE (§ 130) — DEFENSES.

While, if plaintiff had fully complied with his part of a contract to exchange land with defendant, before the building on plaintiff's land was destroyed, by submitting to defendant an abstract showing clear title, and tendering her a deed, as required, the subsequent accidental destruction of the building would not have been a defense to plaintiff's suit for specific performance, if, when the house on plaintiff's property was burned after the contract to exchange was made, plaintiff had not complied with his part of the contract by tendering an abstract showing clear title, etc., plaintiff could not compel specific performance without making allowance for depreciation of his property by the destruction of the house.

11. SPECIFIC PERFORMANCE (§ 121)—NATURE OF REMEDY—SUFFICIENCY OF EVIDENCE.

Since the granting of specific performance is in the court's sound discretion, much less strength is required in defendant's case to resist a suit for specific performance than is required by plaintiff to maintain it; plaintiff being left to his legal remedy if specific performance is refused.

12. SPECIFIC PERFORMANCE (§ 16)—DEFENSES.

Specific performance will be denied if, under all the circumstances, it would be inequitable to grant it.

Faris, J., dissenting in part.

Error to Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by C. H. Ranck against Sarah Ann Wickwire. Judgment for defendant, and plaintiff brings error. Affirmed.

A. F. Evans and Bruce Barnett, both of Kansas City, for plaintiff in error. Thomas A. J. Mastin and Jos. S. Brooks, both of Kansas City, for defendant in error.

WALKER, P. J.

This is a suit in equity in which the plaintiff seeks a decree for the specific performance of a contract for the exchange of plaintiff's 280 acres of land in St. Clair county for certain lots in Kansas City belonging to defendant. Upon a hearing before the circuit court of Jackson county, at Independence, at its September term, 1908, the court found the issues in favor of the defendant, and a decree was rendered accordingly. The case is here on a writ of error brought by plaintiff.

The contract in question, omitting the signatures, is as follows: "This agreement made this 5th day of Jan., 1907, between Mrs. Sarah Ann Wickwire, of Bates Co., Mo., party of the first part, and C. H. Ranck, of Cedar Rapids, Ia., party of the second part. Said party of the first part agrees to exchange lots 11, 12, 23, 24, in Bismark Place addition, Kansas City, Mo., for 280 acres of land in St. Clair Co., Mo., belonging to the party of the second part; and party of the first part agrees to assume mortgage of $4,000.00 in favor of A. W. Hudson, at 5½ per cent. interest, on said land in St. Clair Co., Mo., party of the second part to assume $50.00 note in favor of Eugene Lindsay, and both parties to furnish a clear title and abstract, with deed of said properties, soon as same can be brought down to date."

The pleadings, omitting captions and signatures, are in substance as follows:

Petition: The plaintiff alleges that he has a good and indefeasible title to the land (particularly describing it) which he had agreed to transfer to defendant; that defendant has title to the lots in Kansas City which she had contracted to convey to plaintiff. The contract is then set out according to its terms, and plaintiff further alleges that he has furnished defendant with abstracts of title to the land he proposes to convey to her, showing clear and indefeasible title in him, and has offered to convey said land to defendant by a deed of warranty executed by himself and wife, and has demanded that defendant, in consideration thereof, convey to him her said real estate in Kansas City, and that she has refused and still fails and refuses so to do. Wherefore he asks judgment for specific performance, etc.

Answer: Defendant admits she entered into the contract with plaintiff by which she agreed to exchange certain lots, described as in the contract, to plaintiff for 280 acres of land in St. Clair county; that said land was not described in the contract, and that same did not show what land was intended to be conveyed, following this with admissions of the further agreements appearing in the contract, not necessary to be repeated here; that in January, 1907, plaintiff caused an abstract of title of certain lands in St. Clair county to be delivered to her, and about said date she submitted same to her attorneys, who, after examining same, reported to her, on January 26, 1907, that the title to the lands of the plaintiff was defective in the following respects: That about 200 acres of said land, particularly described in said answer, was affected by a contingent remainder therein specifically set forth, and that a certain 40 acres of said land appeared from the abstract to have been held at one time by trustees, and to have been transferred by them as agent, and that as to 80 acres of said land no patents or title appeared in said abstract to have emanated from the government; that the report and conclusion of her said attorneys had been delivered or offered to be delivered to plaintiff, stating her objections to said title; and that no effort had been made by plaintiff to correct the defects therein, except that plaintiff had offered to institute a suit for the purpose of correcting the deed made by the trustees as agent. Following this are specific allegations in which defendant sets up the defects in plaintiff's title heretofore generally pleaded. Defendant further alleges that plaintiff and defendant, under said contract, were to furnish clear titles and abstracts showing same, with deeds to said properties, as soon as said abstracts could be certified to date, and that no deed conveying plaintiff's lands in said St. Clair county was furnished with said abstract and delivered to defendant, or to any one for her, as required by said contract; that no time was stated in said contract for the perfecting of said title to the lands, but that it was provided that a deed was to be furnished as soon as the abstract could be brought down to date, and a clear title to said lands was to be furnished at the time said abstract and deed were delivered; that defendant, on or about the 7th day of February, 1907, at the request of plaintiff, delivered his abstract of said St. Clair county land to one Abernathy in Kansas City, and that same was by him subsequently returned to the plaintiff; that at said time negotiations were still pending between plaintiff and defendant for the purpose of concluding the exchange of properties between them; that about the time of the return of said abstract by defendant plaintiff caused to be delivered to her a certain report upon the title to her property in Kansas City, which she had agreed to transfer to plaintiff, in which report plaintiff set forth more...