Ryan v. Dunlap

• Decision Date: 01 July 1892
• Citation: 20 S.W. 29,111 Mo. 610
• Court: Missouri Supreme Court
• Parties: RYAN v. DUNLAP <I>et al.</I>

20 S.W. 29

111 Mo. 610

RYAN v. DUNLAP et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

VENDOR AND PURCHASER — SPECIFIC PERFORMANCE — RETURN OF PURCHASE MONEY.

A contract for the sale of land provided that, if the title proved defective beyond repair, the contract should be void, and the payment made on account of the purchase price should be returned, and that, if the vendee should not fulfill the contract, such payment should be forfeited. It turned out that the vendor had no title to part of the land. The purchaser sued for specific performance, but the court found that he had refused to allow the contract to be carried out pro tanto. Held, that he was nevertheless entitled to judgment for the payment made, with interest and costs.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Suit by Lewis C. Ryan against Mary L. Dunlap and others for specific performance. Defendants obtained judgment. Plaintiff appeals. Reversed.

W. J. Ward, for appellant. Warner, Dean & Hagerman, for respondents.

GANTT, P. J.

This is a suit in equity for the specific performance of the following agreement: "Kansas City, Missouri, June 17, 1887. Received from Lewis C. Ryan, purchaser, $1,000.00, as part payment of the purchase money for all of lots 1, 2, 3, 4, and 5, block F, Lockbridge's addition to the City of Kansas, state of Missouri, as shown on recorded plat of same, being 237½ feet on Troost avenue, by 150 feet on 22d street, (the southeast corner,) this day sold to Lewis C. Ryan by McElroy & Lesueuer, agents for Mrs. M. L. Dunlap, for $23,750.00, payable as follows: $10,000.00 cash, of which $1,000 hereby paid is a part, and the balance of said cash payment to be paid in thirty days after delivery by owner of a complete abstract of title to said purchaser of said property. The balance of said purchase money to be paid as follows: $6,575.00 in one year from delivery of deed; $6,575.00 in two years from delivery of deed; interest at 8 per cent. Interest payable semiannually. All notes to be secured by deed of trust on said property. The said Mrs. M. L. Dunlap hereby agreeing to furnish a complete abstract of title within ten days from date, and certificates of judgment in all the courts of record, together with a warranty deed of said property. Should the title prove defective beyond repair in a reasonable time, this contract shall be void, and the $1,000.00 hereby paid shall be returned to said purchaser. All city and county taxes for 1887 to be paid by the seller. It is further understood that, if said purchaser does not make a cash payment of $10,000.00, as above stipulated, the $1,000.00 payment herein is to be forfeited as liquidated damages for the breach of contract. MARY L. DUNLAP. [L. S.] LEWIS C. RYAN. [L. S.]"

There are no questions as to the admission or rejection of evidence. The error assigned is that, under the law and the evidence, the finding should have been for plaintiff, whereas the trial court gave judgment for the defendants.

Plaintiff relies upon three propositions to work a reversal. By reference to the memorandum, it will be seen that the real estate Mrs. Dunlap agreed to convey was five lots, with a frontage of 237½ feet on Troost avenue, by 150 feet deep on Twenty-Second street, in Kansas City. Prior to the making of this agreement, Mrs. Dunlap owned the five lots, and they were 150 feet deep; but, just previous to this contract, the city, for the purpose of widening this avenue, had condemned a strip 10 feet wide off of the Troost avenue front or side, so that the tract was only 140 feet deep when she signed the agreement. In her answer and on the trial she made the defense that this was a misdescription of the scrivener, and that, prior to agreeing to purchase, the plaintiff had gone over the lots, saw the street improvement, and had full notice that the lots were only 140 feet deep. It appears from the testimony of Holtz that he was in the employment of McElroy and Lesueuer, real-estate agents; that he induced Mrs. Dunlap to permit him to list her property on the firm books of McElroy and Lesueuer. The description she gave him was southeast corner of Twenty-Second and Troost. He told her he had a customer. It turns out plaintiff was his customer, and had been looking at the property. The plaintiff says his attention was called to it by this firm, and, after thinking it over some time, he decided to buy it. Mrs. Dunlap furnished plaintiff her abstract, and he submitted it to his attorney. His attorney pointed out these defects in the title, as shown by the abstract: (1) That the patent from the state to the original patentee did not appear in it; (2) that it was incumbered with mortgages to amount $5,100, bearing 8 per cent.; (3) that the contract called for a tract 237×150 feet. The condemnation takes off 10 feet, leaving it only 140 feet deep; (4) that the abstract did not show an order of the county court authorizing E. T. Peery, administrator of Graham, to sell and convey the land. This opinion was given July 12, 1887. Mrs. Dunlap's attorneys procured the order of the county court and the patent to be placed on the abstract. She and her attorney then had a conference with plaintiff about the incumbrance. As he was to pay her $9,000 cash in addition to the $1,000 earnest money, the incumbrance was not insisted upon as a defect. The defendant and her attorney testify positively plaintiff said he would deduct the incumbrance from the cash payment. Plaintiff testified: "I told her I might agree to take the incumbrance out of the cash payment." "I didn't bear down on the matter of the incumbrance." This accords so entirely with the almost universal custom that we take it it is useless to devote any more time to it. So that, on the 27th of August, 1887, there was but one matter of difference between these parties, and that was with respect to the depth of the lots. The trade had now been made since June 17th. All the defects that could be cured by Mrs. Dunlap had been corrected, and she and her attorney called upon plaintiff to know whether the abstract was now satisfactory, and if he intended to carry out the trade. And here there is a conflict. They all agree that Mrs. Dunlap and Mr. Nearing went to plaintiff's office in August to see him about the trade. Plaintiff says: "I told Mrs. Dunlap, `I am...