Sanders v. Sheets

• Decision Date: 06 July 1926
• Docket Number: No. 95724.,95724.
• Court: Missouri Court of Appeals
• Parties: SANDERS v. SHEETS.

287 S.W. 1069

SANDERS v. SHEETS.

No. 95724.

Kansas City Court of Appeals, Missouri.

July 6, 1926.

Rehearing Denied July 22, 1926.

Appeal from Circuit Court. Jackson County; A. C. Southern, Judge.

"Not to be officially published."

Action by Thomas J. Sanders against R. G. Sheets. Judgment for plaintiff, and defendant appeals. Affirmed.

Henry S. Conrad, L. E. Durham, and Spurgeon L. Smithson, all of Kansas City, for appellant.

Ashley & Gilbert, of Kansas City, for respondent.

ARNOLD, J.

This is a suit in equity to recover the sum of $500, part payment on a contract for the sale of real estate entered into between plaintiff and defendant, and to have said payment declared a lien against the said real estate.

The contract of sale, made in the usual form of real estate contract obtaining in the city of Kansas City, Mo., was executed on April 15, 1924, and signed, in the name of defendant, "by Square Deal Realty & Loan Company," and by plaintiff in person. The contract, in so far as material to the issues in this suit, provides:

"That seller has sold and agreed to convey as herein provided the following described real estate in Jackson county, Mo., to wit: All of the six-apartment brick flat, known as 1900, 1908 Howard avenue, for the price and sum of $12,000, to be paid by the buyer as follows: $500 at the signing of this contract, the receipt whereof is hereby acknowledged by the seller and which is deposited with Square Deal Realty & Loan Company as part of the consideration of the sale, the balance whereof is to be paid in the following manner, to wit: $500 cash on delivery of deed, as herein provided, buyer to assume or execute a first deed of trust for not more than $5,000, with interest at 7 per cent., and to give back a second deed of trust for the balance, payable at the rate of $75 per month and interest at 6 per cent., except the interestpaying periods on the first deed of trust. Privilege is hereby given to make two or more payments on second deed of trust at any time. All deferred payments to be represented by note, secured by deed of trust on above-describes, property, containing the usual provisions, drawing interest from date of deed at the rate of 7 per cent. per annum, payable semiannually. * * *"

"If the title be good, the seller shall deliver for the buyer at the office of said Square Deal Realty & Loan Company warranty deed, properly executed, and conveying said property free and clear from all liens and incumbrances whatsoever, except as herein provided; the buyer shall then and there pay the balance, if any, of said cash payment, and deliver to the seller the note and deed of trust, if any, hereinbefore provided for, and furnish the seller with insurance policy containing loss clause payable to the seller as his interest may appear; the buyer to accept assignment of insurance now in force, paying therefor the unearned value prorated at present current rate.

"If the title is defective, the buyer shall specify the objections, in writing, to be delivered to the seller at the office of Square Deal Realty & Loan Company within ten days after such delivery of the abstract; the seller shall have the defects rectified within 30 days from date of delivery of such objections, but, in case such defects in the title cannot be rectified within that time, this contract shall be null and void, and the money deposited as aforesaid shall be returned to the buyer, and the abstract returned to the seller.

"If the seller has kept his part of the contract by furnishing good title, as herein provided, and the buyer fail to comply with the requirements within five days thereafter, then the money deposited, as aforesaid, is forfeited by the buyer, and this contract may not thereafter be operative, at the option of the seller."

The petition is formal and alleges the execution of the contract (making same an exhibit and part of said petition by reference), and alleges that, pursuant to the terms of said contract, plaintiff paid to defendant the sum of $500 in cash, by depositing same with the Square Deal Realty & Loan Company; that defendant failed to make a good title to the property described as the east 62½ feet of lot 1, block 2, Oakland, an addition to Kansas City, Mo., as shown by the recorded plat thereof, so that same cannot be conveyed to defendant by warranty deed free from all liens and incumbrances, except as in the contract provided, for the reason that the apartment building on said property extends several inches into a public alley on the east side of said apartment, as shown by the evidence; that on May 21, 1924, plaintiff specified said objection, in writing, delivered to defendant at the office of the Square Deal Realty & Loan Company, as provided in the contract; that the 30 days allowed defendant to correct said defect and make good the title to said real estate have elapsed, and said defects have not been rectified; alleges demand has been made on defendant for refunding said $500, part payment, but this demand has been refused.

The answer is a general denial. The cause was tried to the court, resulting in a decree and judgment in favor of plaintiff for $500 and 6 per cent. interest from June 21, 1924, in the sum of $37.92, and providing:

"That if said sum be not paid within 30 days from the date of this decree, said property [described] be sold by the sheriff of this county of Jackson, at public auction, as real estate is sold on execution, and the proceeds of said sale applied as follows:

"First, to the payment of the costs in this case, including the expenses of such sale. Next, to the payment to the legal holder and owner thereof of the note or notes secured by deed of trust on premises above described, recorded in the recorder's office of Jackson county, Mo., at Kansas City, in Book B-2373, at page 511. Next, to the payment of said sum of $500, with interest thereon from June 21, 1924. Next, to Charles A. Thomas, present owner of said premises, subject to the above deed of trust recorded in Book B-2373, at page 511, and to the lien hereby declared, the surplus, if any, remaining."

Motions for a new trial and in arrest ware unavailing, and defendant has appealed.

There is no dispute as to the material facts in the case, and this appeal hinges upon a construction of the contract. In support of his appeal, defendant urges that under the contract the Square Deal Realty & Loan Company was a trustee, or stakeholder, with respect to the handling of the deposit money, and that neither party could hold the other for the acts of said trustee or stakeholder. Defendant, in support of his contention, leans heavily on the opinion of this court in the case of Martin v. Allen, 125 Mo. App. 633, 103 S. W. 138, and, also, on Coble v. Denisen, 151 Mo. App....