Rice v. Griffith

• Decision Date: 13 March 1942
• Docket Number: 37674
• Citation: 161 S.W.2d 220,349 Mo. 373
• Parties: Catherine Rice, Appellant, v. Mrs. Harry W. Griffith, Representative, Executrix and Administratrix of the Estate of Harry W. Griffith, Deceased, Mrs. Mary Griffith, Mrs. Floy Stean, Mrs. Seth White, Griffith Suburban Development Company, a Corporation, and Kansas City Title and Trust Company, a Corporation
• Court: Missouri Supreme Court

161 S.W.2d 220

349 Mo. 373

Catherine Rice, Appellant, v. Mrs. Harry W. Griffith, Representative, Executrix and Administratrix of the Estate of Harry W. Griffith, Deceased, Mrs. Mary Griffith, Mrs. Floy Stean, Mrs. Seth White, Griffith Suburban Development Company, a Corporation, and Kansas City Title and Trust Company, a Corporation

No. 37674

Supreme Court of Missouri

March 13, 1942

Modified on Denial of Rehearing May 5, 1942.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded.

Raymond E. Martin and W. Raleigh Gough for appellant.

(1) The answer does not allege sufficient facts to justify the granting of affirmative equitable relief; therefore, the trial court erred in refusing plaintiff a trial by jury. Schuermann v. Union Central Life Ins. Co., 165 Mo 641, 65 S.W. 723; State ex rel. v. Allen, 313 Mo. 384, 282 S.W. 46; Aetna Life Ins. Co. v. Daniel, 42 S.W.2d 584; 12 C. J., Sec. 949; Babcock v. Rieger, 332 Mo. 528, 58 S.W.2d 723. (a) By reason of the contract of sale and plaintiff's payment of the entire purchase price, plaintiff became the equitable owner of the real estate, and defendants held the bare legal title, as a "trustee" for plaintiff. Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Beckmann v. Beckmann, 58 S.W.2d 490. (b) If plaintiff had the right of rescission, her election to rescind operated as a renunciation of her equitable title -- if she had no right of rescission, the equitable title stayed in her -- and the decision as to whether she had renounced or kept the equitable title depended alone upon a legal determination as to her right to rescind. 66 C. J., sec. 505, p. 840; Sec. 3493, R. S. 1939. (c) Equity does not have power to grant mere declaratory relief, neither may its jurisdiction be invoked to protect mere theoretical rights or prevent mere speculative injury. 21 C. J. 157-158. (d) An answer, in order to invoke equitable relief, must allege facts, not mere conclusions, showing that the legal remedy is inadequate. Babcock v. Rieger, 332 Mo. 528, 58 S.W.2d 723; Palmer v. Marshall, 24 S.W.2d 229; Benton County v. Morgan, 163 Mo. 661, 64 S.W. 119. (e) Under the evidence, there were no "burdens" incident to holding title. 21 C. J. 157-158; Thomas v. Musical Mut. Protective Union, 121 N.Y. 45, 24 N.E. 24, 8 L. R. A. 175. (f) The answer prayed for a decree compelling a party to "accept" something, which the court had no power to do. 21 C. J. 691; Sec. 1257, R. S. 1939; 62 C. J. 686; 58 C. J. 1031, 1163-1164, sec. 488; 21 C. J. 57; Hannan v. Wilson, 139 A. 165, rev. 100 N.J.Eq. 463. (2) The answer showed on its face that the court did not have territorial jurisdiction of the equitable cause of action attempted to be pleaded. Sec. 873, R. S. 1939; Castleman v. Castleman, 184 Mo. 432, 83 S.W. 757; State ex rel. Hunt v. Grimm, 243 Mo. 665, 148 S.W. 868; Ensworth v. Holly, 33 Mo. 370; Sec. 929, R. S. 1939; 57 C. J. 374-375, sec. 21; Bray v. Marshall, 66 Mo. 122; Snitzer v. Downing, 80 Mo. 586; State ex rel. v. Baker, 129 Mo. 482; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Hauser v. Bergl, 121 S.W.2d 314. (3) The Supreme Court has jurisdiction of this appeal. Sec. 12, Art. VI, Const. of Missouri; Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W.2d 771; Gibbany v. Walker, 113 S.W.2d 792; State ex rel. v. Hughes, 137 S.W.2d 544; State ex rel. Brenner v. Trimble, 326 Mo. 702, 32 S.W.2d 760. (4) Under the evidence, plaintiff was entitled to a judgment for the recovery of the purchase money and taxes paid by her, with interest. (a) The contract required defendants to tender a good conveyance on January 11, 1938. Johnson v. Schuchardt, 333 Mo. 781, 63 S.W.2d 17. (b) Defendants breached the contract by giving the right-of-way deed to the State. Montgomery v. Wise, 138 Mo.App. 176, 120 S.W. 100. (c) The answer did not sufficiently plead a waiver of the "time" provision of the contract. 67 C. J., 289, 302-303, 311; State ex rel. Met. Life Ins. Co. v. Shain, 334 Mo. 385, 66 S.W.2d 871; State ex rel. Continental Life Ins. Co. v. Becker, 336 Mo. 59, 77 S.W.2d 100; 66 C. J. 682. (d) Waiver was not shown by the evidence. 7 C. J. S. 922-923, 923-924; State ex rel. Continental Life Ins. Co. v. Becker, 336 Mo. 59, 77 S.W.2d 100; 66 C. J. 976; 18 C. J. 479. (e) Defendants did not tender a proper performance within a "reasonable time." Mastin v. Grimes, 88 Mo. 478; Hudson v. Barnes, 278 S.W. 395; Montgomery v. Wise, 138 Mo.App. 176, 120 S.W. 100; Johnson v. Schuchardt, 333 Mo. 781, 63 S.W.2d 17; Sears v. Ainsworth, 166 S.W. 60. (f) The measure of plaintiff's recovery is the purchase-money and taxes paid, with interest. 66 C. J. 1579-1580.

Adams, Adams & Adams for respondents.

(1) Title to real estate is not involved in this suit. Pomeroy on Specific Performance of Contracts, sec. 6, p. 8; Sanders v. Savage, 129 S.W.2d 1061; Olney v. Eaton, 66 Mo. 563; McCune v. Goodwillie, 204 Mo. 306; Coleman v. Lucksinger, 224 Mo. 1. (2) Respondents' answer to appellant's petition asked affirmative equitable relief and stated facts entitling respondents to that relief. Therefore, the case was properly tried as an equity case. Rice v. Griffith, 144 S.W.2d 837; Donnelly v. Trust Co., 239 Mo. 370; Hewitt v. Price, 204 Mo. 31. (3) The statute fixing the venue of actions involving the title to real estate is not applicable to this case. Hewitt v. Price, 204 Mo. 31; Kelly v. Hurt, 74 Mo. 561. (4) Appellant has waived the right to object to the venue of this action. Vol. 33, University of Missouri Bar Bulletin, p. 32; Chouteau v. Allen, 70 Mo. 290; Johnson v. Detrick, 152 Mo. 243, 53 S.W. 891; Real Estate Co. v. Lindell, 133 Mo. 386, 33 S.W. 466. (5) Time was not the essence of the contract. Rice v. Griffith, 144 S.W.2d 837; 66 C. J. 694, sec. 250; Walker v. Owens, 25 Mo.App. 587; Melton v. Smith, 65 Mo. 315; Woodward v. VanHoy, 45 Mo. 300; Quigley v. Bartlett, 260 S.W. 494. (6) Appellant waived any provisions regarding time of performance by respondents. Metz v. Wright, 116 Mo.App. 631, 92 S.W. 1125; Jones v. Reeves, 41 S.W.2d 605; Howe Scale Co. v. Hardware Co., 285 S.W. 141; Rice v. Griffith, 144 S.W.2d 837. (7) Waiver was both pleaded and proved. Rice v. Griffith, 144 S.W.2d 837.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

After handing down an opinion affirming the judgment and decree nisi (144 S.W.2d 837), the Kansas City Court of Appeals certified this review here on the ground title to real estate in the appellate jurisdictional sense is involved. [Mo. Const., Art. 6, Sec. 12, Amend. 1884, Sec. 5.] Plaintiff, who prosecuted the appeal to the Court of Appeals, now maintains the review involves title to real estate. Defendants contend contra; and that, with the Court of Appeals having jurisdiction, its affirmance of the judgment nisi was final.

Plaintiff instituted this action in the circuit court of Jackson county, Missouri. The petition set up a contract for the sale and purchase of real estate in Clay county, Missouri; alleged that defendants had breached their agreement to convey and that damage resulted to plaintiff, with prayer accordingly. Defendants' answer, among other things, prayed for the specific affirmative relief granted by the judgment and decree nisi. Plaintiff's reply, among other things, interposed grounds for the denial of the relief prayed by defendants. The judgment, rendered May 19, 1939, in part "ordered, adjudged and decreed" that plaintiff accept the deed tendered to her by defendants; that if plaintiff refused to accept said deed "it is further ordered, adjudged and decreed that full and complete title to said lots, to-wit: Tracts 52 and 53, in Block 9, Kansas City Suburban Acreage Estates, a subdivision of Clay county, Missouri, be and hereby is vested in plaintiff and divested from defendants . . ." Thus, the judgment sought by defendants and the judgment rendered operated directly upon the title of the real estate itself. This has been held to vest appellate jurisdiction here (State ex rel. v. Hughes, 345 Mo. 958, 961[3, 4], 137 S.W.2d 544, 545[3, 5], citing authority), even should the judgment be void on its face (Watts v. Watts, 304 Mo. 361, 365 (III), 263 S.W. 421, 422[4]; State ex rel. v. Hughes, supra, l. c. 962 and 545[6]).

Plaintiff says that defendants, by seeking affirmative relief "affecting" title to real estate situate in Clay county, Missouri, invoked the "jurisdiction" of the circuit court of Jackson county over a subject matter of which, under Sec. 873, R. S. 1939, it did not have jurisdiction. Plaintiff first presented the issue in her motion for rehearing in the Kansas City Court of Appeals. Defendants contend contra; that the issue is one of venue and that plaintiff waived any issue with respect thereto. The statute, found in the article of our civil code entitled: "Place of Bringing Actions," reads: "Suits for the possession of real estate, or whereby the title thereto may be affected, or for the enforcement of the lien of any special tax bill thereon, shall be brought in the county where such real estate, or some part thereof, is situated." According to the able briefs of counsel, there are two lines of authority; one treating the issue as involving jurisdiction over the subject matter, supporting plaintiff; the other treating the issue as involving venue, supporting defendants.

Hewitt v. Price (Div. II, 1907), 204 Mo. 31, 102 S.W. 647, 120 Am. St. Rep. 681, supports defendants' position. Hewitt sued in Jasper county for the deficiency on a note after the sale, under a deed of trust, of real estate situate in Newton county. Price's answer attacked said sale as fraudulent. The case was tried in Barton county on a change of venue. We ruled, notwithstanding the provisions of now Sec. 873 and the location of the land in ...