Scannell v. American Soda-Fountain Co.

• Decision Date: 12 March 1901
• Parties: SCANNELL v. AMERICAN SODA-FOUNTAIN CO.
• Court: Missouri Supreme Court

61 S.W. 889

161 Mo. 606

SCANNELL v. AMERICAN SODA-FOUNTAIN CO.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

SPECIFIC PERFORMANCE — EXCHANGE OF PROPERTY — TITLE — REFUSAL — ADVERSE POSSESSION — EASEMENT — NONUSER — TIME — ESSENCE OF CONTRACT — LAPSED AGREEMENT — ESTOPPEL.

1. Plaintiff and defendant contracted to exchange real estate, and agreed that if any defect should be found in the title to either of the properties, so that the trade could not be made, then the party whose title was defective should pay the other $250, and that if the titles were found to be perfect the deeds should be delivered by a certain day. Plaintiff showed title by adverse possession for 52 years. Held, that the fact that the record title showed a transfer of the property by the French government in 1769, which was recorded in 1841, and a devise of the property by a subsequent grantee in 1878 did not justify the defendant in refusing to perform the contract, since plaintiff's title was unassailable under Rev. St. 1899, § 4265, providing that no action shall be maintained for the recovery of real property after 24 years after the cause of action or right of entry shall have accrued, and section 4268, making the lawful possession of property and the payment of taxes thereon for 30 years a bar to any claim therefor emanating from the government.

2. Where an alley had been fenced and not used since 1876, its existence constituted no ground for defendant's refusal to perform a contract for the purchase of a lot, since the easement had been extinguished by nonuser.

3. Plaintiff and defendant exchanged property, and agreed that plaintiff should take a two-years lease of the property, to be conveyed to defendant as soon as the deeds were exchanged, and that, if the titles proved perfect, the deeds should be delivered by July 1, 1897, which time was twice extended to allow time to examine the respective titles. Defendant objected to plaintiff's title on other grounds, without mentioning that a 9½-inch strip had been sold off from one side of the lot, until after several months' negotiations in reference to the other objections. Plaintiff purchased the 9½-inch strip in March, 1898, after he had instituted a suit for specific performance, and at the time of the rendition of the decree was able to furnish a perfect title. Held, that the contention that plaintiff was not entitled to specific performance, because time was of the essence of the contract, could not be sustained, since it was defendant's duty to have notified plaintiff of the defect, and the agreement to lease the property to plaintiff showed that defendant was not prejudiced by the failure to get immediate possession of that particular property.

4. An agreement that plaintiff should accept a lease in the "usual form" was not so indefinite as to be unenforceable.

5. Plaintiff and defendant agreed to exchange real property; that the deeds should be exchanged July 1, 1897; and that plaintiff should accept a two-years lease of the property, to be conveyed to defendant at a certain monthly rental. Defendant refused, after several months' negotiations, to make the exchange because of alleged defects in plaintiff's title, and plaintiff, in an action for specific performance, proved a marketable title. Held, that plaintiff's agreement to accept a lease lapsed through defendant's refusal to perform the contract.

6. Plaintiff and defendant agreed to exchange real property, and that the deeds should be delivered by a certain date if the titles were perfect. Defendant objected to plaintiff's title, and demanded a guaranty of title from a trust company. Held, that a letter from plaintiff's attorney during the negotiations as to plaintiff's title, stating that plaintiff ought not to be required to give a guaranty, because defendant's title was more defective than plaintiff's, did not estop plaintiff from demanding specific performance of the contract, since the letter did not amount to a refusal to accept defendant's title.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Alfred Scannell against the American Soda-Fountain Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is a suit in equity to enforce specific performance of a contract for the exchange of lands. By written agreement between the parties, in June, 1897, defendant agreed to convey to plaintiff certain real estate on Pine street, in St. Louis, particularly described in the petition, for which plaintiff agreed to pay $10,000, and convey to defendant certain real estate on Market street, in that city, also particularly described in the petition. The contract provided "that if any defect should be found in the title to either of said properties, so that this contemplated trade cannot be made, then the party whose title proves defective hereby agrees to pay to the other party the sum of two hundred and fifty dollars as full compensation for the failure to consummate this contract; and, in the event and upon such failure being made, this contract shall be absolutely void, as if the same had never been made, and the two hundred and fifty dollars hereby receipted for shall be returned to said Scannell. If, however, said titles are found to be perfect, said deeds and lease shall be delivered without delay, not later than the 1st of July next." There was a stipulation in the agreement for the plaintiff to take a lease from defendant for two years on the Market street property, the terms of which will be noted later, when we come to discuss that feature of the agreement. The parties immediately began investigations of the titles of their respective contemplated purchases, in the course of which the defendant discovered that the plaintiff's record title to the Market street property went back no further than 1829, although the title had emanated from the French government in 1769, and for that reason refused to carry out the agreement for exchange. The subject was discussed between the respective representatives of the parties, and, pending the discussion, the time for exchange of deeds was extended, first to July 10th, and again to July 17th. A suggestion was made that the objection might be overcome by obtaining a guaranty of the title by the St. Louis Trust Company, and while that matter was under consideration the agent of the plaintiff wrote defendant's attorney a note, saying: "Mr. Scannell has just called to say that his attorney advises that the title to the Pine street lot is not as it should be, inasmuch as the alleys have never been dedicated, and that he ought to have a guaranty against that; in other words, his attorney thinks your defect is more serious than the defect to the Scannell property, and Mr. Scannell thinks he ought not to be required to furnish a guaranty." Several meetings were had between the respective representatives, but the defendant's objection to the plaintiff's title was not satisfied, and no adjustment of the difficulty was arrived at. On July 12th or 14th the defendant's agent informed plaintiff that defendant would not carry out the contract. On July 17th, the last day for the fulfillment of the agreement, the plaintiff's agent wrote a note to defendant's agent, saying that plaintiff's deed was ready to deliver, and the money ready to be paid, and he desired to close up the matter. That note was sent either by mail or special message, and the deed and money were in the agent's hands as stated. After the writing of the note, the agent of the defendant informed the agent of the plaintiff that the defendant would not proceed further in the matter, and all negotiations ceased. Up to that time the only objection defendant had made to the plaintiff's title was that the record did not carry it further back than 1829. Afterwards, before suit was brought, plaintiff made formal tender of his deed and the money required by the contract, and demanded a deed to the Pine street property, which defendant refused; and at the same time defendant tendered to plaintiff $250, which plaintiff had paid as earnest money on the signing of the contract, and plaintiff refused it. Then this suit was begun.

On the trial, the plaintiff showed title to the Market street property by deeds duly recorded, beginning May 5, 1829, from Robert Wash to Robert Rankin, and running, through regular succession, down to 1881 and 1887, when the title carried by those deeds was conveyed to the plaintiff. And the evidence showed that the plaintiff and his grantors in those deeds had been in open, unbroken adverse possession of the property for a period beginning in 1845, and that the plaintiff and his grantors in those deeds had paid all the taxes on the property, from and including 1862, down to and including 1897. The defendant introduced deeds showing — First, a concession from the French government to Jacques Denis, dated July 17, 1769; second, Jacques Denis to Francis Denaux, dated June 21, 1771, recorded February 26, 1841; then the testimony of Otto Schmitz, a surveyor, who testified that he had surveyed the property, and was familiar with the land covered by the concession to Jacques Denis, and that it covered the land in question; he derived his information from a certified copy of the confirmations by the United States to various owners in the old city, in the office of Julius Pitzman; then a quitclaim deed from the heirs of Francis Denaux to Alexis Denaux, July 10, 1841; deed from Alexis Denaux to Francis A. Quinette, 14th September, 1843; Quinette and wife to Aspasie Des Ilets, August 14, 1844; the will of Aspasie Des Ilets, probated February, 1878, directing her executor to sell her real estate (not described), and pay numerous legacies out of the proceeds; then a deed from plaintiff to Suitzer, June 2, 1887, conveying a strip of 9 inches off the east side of the lot in question. The deeds under which plaintiff acquired the lots contain a reservation of a...