San Mateo Land Co. v. Elem

• Decision Date: 29 October 1923
• Docket Number: 6272.
• Citation: 293 F. 869
• Parties: SAN MATEO LAND CO. v. ELEM.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F. 869

SAN MATEO LAND CO. v. ELEM.

No. 6272.

United States Court of Appeals, Eighth Circuit.

October 29, 1923

E. R Wright, of Santa Fe, N.M. (A. B. McMillen, of Albuquerque N.M., on the brief), for plaintiff in error.

Glenn Porter, of Wichita, Kan. (S. B. Amidon, S. A. Buckland, and H. W. Hart, all of Wichita, Kan., and George S. Klock, of Albuquerque, N.M., on the brief), for defendant in error.

Before STONE, Circuit Judge, and VAN VALKENBURGH and KENNEDY District judges.

KENNEDY District Judge.

The defendant in error, plaintiff in the court below, sued the plaintiff in error, there defendant, to recover the sum of $5,000 paid by the plaintiff as a part of the purchase price of certain lands. The proposed purchase and sale of these lands was evidenced by a written contract between plaintiff and defendant. The real estate so agreed to be conveyed was situate in the county of Sandoval, state of New Mexico, and was set out in the contract by general lines of boundary, the southern boundary line of which was coincident with the northern boundary line of another tract of land, also under contract for purchase and sale between the same parties. There is expressly excepted from the described tract, certain strips of land owned by individuals, and it was stipulated that the land to be conveyed contains not less than 20,000 acres.

The vendor under the terms of the contract agreed to furnish the purchaser with a plat of the survey and an abstract of title to the land. The purchaser further agreed to pay for the land at the rate of $2 per acre, the total amount of the purchase price to be determined by a survey, of which said purchase price the sum of $5,000 was paid in cash, the recovery of which sum is the basis of the suit, and the balance of the purchase price was to be paid upon delivery of good and sufficient deed within 60 days from the date of the execution of the instrument. The contract bears date of December 27 1919, but the record shows that it was not fully executed until about the middle of January, 1920, when the defendant land company transferred to the plaintiff a duplicate signed copy and acknowledged receipt of the $5,000 paid upon the contract by the plaintiff, Elem.

There then was some correspondence in regard to the completion and submission by the defendant of an abstract of title in which it appears that, irrespective of the time stated in the contract for the consummation of the sale, the plaintiff was given 30 days after the abstract had been furnished by the defendant, in which to secure a legal opinion upon the title. Some difficulty was evidently experienced by the defendant in completing the abstract as soon as expected, as it was not forwarded to the plaintiff until March 9, 1920. There is no controversy, however, in this suit as to the matter of time being of the essence of the contract. The abstract furnished by the defendant appears to be over the certificate of A. B. McMillen, who denominates himself 'abstractor,' he being at the time the president of the San Mateo Land Company, which was the defendant in the suit. On April 8th the plaintiff, through his attorneys, transmitted to the defendant the opinion of plaintiff's attorneys upon the abstract, wherein objection was made to the sufficiency of the abstract in not showing good and merchantable title to the lands covered by the contract, in the defendant company.

One of the objections made to the abstract was that a certain suit brought in the state court, known as No. 616, for the purpose of quieting title to the lands in controversy in the defendant company, had been filed after the abstract had been completed and was not shown upon the abstract, and that this suit had for its purpose the determination of certain tracts of land within the tract agreed to be conveyed, and that without the determination ultimately of the acreage contained in these tracts it was impossible to determine whether or not the defendant was in a position to convey the required acreage covered by the contract. Another objection made was that, in the same suit in the state court, it appeared that there were taxes against said property covered by the contract which were a cloud upon the title, and which could not be determined until the court had made an order in the premises. Other objections included the failure of the abstract to show the incorporation of the defendant company, and that a number of conveyances through which that company purports to have title were supported by affidavits, which could not be held to have the force and effect of judicial determination. Objection is also made that the abstract was not certified to by an abstract company.

On April 14, 1920, the defendant company through its attorney, made reply to the letters containing the objections on behalf of the plaintiff, in which the position is taken that the suit filed to quiet title has nothing to do with the title as shown by the abstract furnished; that the objection on account of the abstract not showing a sufficient acreage is not true in fact, and this the attorney for the defendant company signified his willingness to establish to the satisfaction of any court. In regard to taxes, the writer of this letter states that he felt the most satisfactory way of settling the taxes was in the manner suggested by him, which probably refers to a statement in the abstract itself, which is in the following language:

'There are but little taxes against this property, but, owing to the fact of there being so many strips held by and taxed to individuals, it will be necessary to get an order of court to clear up the questions of taxes, and this will be attended to at once.'

The writer of the letter, in answering the objections of the plaintiff to the title, then states:

'However, I have written the treasurer of Sandoval county to make me a certificate showing all the taxes of every kind and nature against this land, and the same will be fully paid at or before the time of completing the sale.'

In regard to the suit in the state court for the purpose of determining the small strips of land within the tract agreed to be conveyed, the attorney for the defendant company states as follows:

'The object of the suit to which you refer was to locate definitely the few small tracts of land that we did not purchase, so that there could be no question about their location, and thus definitely segregate them from the lands that are owned by the San Mateo Land Company.' The writer further adds:

'As stated in the beginning, I stand ready to establish by the judgment of any court that the San Mateo Land Company is the owner in fee simple of not less than 50,000 acres of land which Mr. Elem contracted to purchase.'

At this point it may be well to state that there were two separate contracts for the purchase and sale of lands between the same parties, which has heretofore been adverted to, one of which covered an area of 30,000 acres lying immediately south of the area covered by the contract in controversy, which latter area was supposed to contain 20,000 acres. The former contract is only material in this case as it reflects light upon the acreage which was to be conveyed under the contract in the suit at bar.

On April 21, 1920, the attorneys for Elem, the plaintiff notified the defendant by letter that he could not accept the abstract of title to the land and demanded the return of his money. Thereafter, and on April 23d, the defendant company, through its attorney, notified the...