Scheerer v. Scheerer

• Decision Date: 23 March 1921
• Citation: 229 S.W. 192,287 Mo. 92
• Parties: CHRISTIAN SCHEERER v. FELIX SCHEERER, Appellant
• Court: Missouri Supreme Court

229 S.W. 192

287 Mo. 92

CHRISTIAN SCHEERER v. FELIX SCHEERER, Appellant

Supreme Court of Missouri, Second Division

March 23, 1921

Appeal from Moniteau Circuit Court. -- Hon. J. G. Slate, Judge.

Reversed and remanded (with directions).

Embry & Embry, S. C. Gill and Roy D. Williams for appellant.

(1) When a verbal agreement has been properly part performed, say by the purchaser, equity recognizes in him exactly the same primary right which would have existed, if the contract had been written. The right to have the very thing done, which was agreed to be done. If this primary right or duty is violated by vendor's refusal to perform, equity gives to the vendee its remedy of specific performance. Pomeroy's Equity (2 Ed.), sec. 103; Pomeroy's Equity (2 Ed.), sec 1409. (2) Equity will not permit the respondent in this case to withdraw from the contract he entered into with appellant. It would be a great injury to appellant to permit respondent so to do. Appellant had paid a portion of the purchase price had been placed in possession under contract of sale, and had made valuable and permanent improvements. Equity aids in compelling specific performance under circumstances of this nature. Berg v. Moreau, 199 Mo. 416. (3) Where one in pursuance of and on the faith of an oral agreement and promise of the owner that he shall have a deed for the land enters into possession and makes valuable improvements, the case is taken out of the Statute of Frauds, and specific performance should be decreed. Anderson v. Shockley, 82 Mo. 250; Dougherty v. Harsel, 91 Mo. 161; Hubbard v. Slavens, 218 Mo. 620; Lambert v. Railroad, 212 Mo. 693. (4) In the case at bar, the contract is shown by a great preponderance of the evidence. In fact, a deed was executed by the vendor under the verbal contract. Vendor simply refused to deliver the deed. He received from time to time interest on all unpaid purchase money, and received four different payments on the purchase price. He has refused to make a deed pursuant to his verbal agreement. He has retained the $ 1400 paid on the principal purchase price, in addition to the interest. He has not offered to return this sum. He simply proposes to keep all that has been paid to him, and also to keep the land that he had agreed to convey. Appellant, pleads and proves that he is ready, willing and able to meet all sums due on the purchase price and has been thus ready at all times. The decree of the court should have been in favor of the appellant, and upon the payment into court of the unpaid purchase price title should have been decreed in appellant.

John M. Williams and George H. Williams for respondent.

(1) The defendant failed to establish the allegations of his cross-bill. (2) The evidence discloses a contract between father and son altogether different from that alleged in the answer. (3) The defendant broke the contract made with his father and was not entitled to equitable consideration even though he had relied in his answer on the contract he actually made. The default of the son was willful. (4) The contract really made could ripen the possession of the son into a title upon two conditions: (a) compliance by the son and (b) the death of the parents. Breach of the contract by the son would leave him without remedy in equity; and a court of equity could not accelerate the death of the parents. (5) The agreement as alleged in the crossbill was to be executed "when the defendant was ready to make some additional payments on the land." Such an agreement is not enforceable because of indefiniteness. Such contracts must be "clear, definite and unequivocal." Goodin v. Goodin, 172 Mo. 48; Huff v. Shepard, 58 Mo. 242; Hilliard on Vendors, 153; 4 Kent (10 Ed.), 534. (6) The cross-bill shows the defendant broke the contract he alleges he made, and the testimony proves he broke the contract actually made. In such case ejectment is the proper remedy. Gibbs v. Sullens, 48 Mo. 237; Goodin v. Goodin, 172 Mo. 43. (7) Even if the allegations of the cross-bill relating to the contract and the proof in support were as definite as that required in Grantham v. Gossett, 182 Mo. 671, or in Goodin v. Goodin, 172 Mo. 48, or in Dalzell v. Dueber Mfg. Co., 149 U.S. 315, yet the relation of the parties is such as to keep the case within the Statute of Frauds. Emmel v. Hayes, 102 Mo. 195; Rosenwald v. Middlebrook, 188 Mo. 93. And, in such relationship, the payment of a part of the consideration, or improvements made by the son on the father's land, or possession when accompained by improvements, will not be treated as part performance. Pomeroy on Specific Performance (2 Ed.) secs. 112, 127, 115; Eckert v. Eckert, 3 P. & W. (Pa.) 332.

OPINION

HIGBEE, P. J.

Christian Scheerer is the father of the defendant. November 7, 1918, plaintiff brought this action of ejectment for the recovery of a farm in Moniteau County, containing about 100 acres, laying the ouster on August 8, 1918. The first count of defendant's answer is a general denial. The second count avers that plaintiff was the owner of the land, and that on August --, 1903, defendant purchased it from plaintiff at the price of $ 5500, and, on or about August 20, paid $ 500 thereon; that plaintiff put defendant in possession and agreed that when defendant was ready to make some additional payment on the land plaintiff would execute a deed to defendant for the farm; that he also paid on the purchase price, February 1, 1910, $ 500; June 1, 1910, $ 200; July 25, 1912, $ 200; and that he paid all interest during the years stated; that defendant made improvements thereon of the value of more than $ 600; that shortly after the purchase of said land plaintiff made a deed therefor to defendant, but when requested to deliver it refused to do so, or to deliver it to a bank in escrow; that defendant was ready, able and willing to make full payment when he requested the delivery of the deed; that in the year 1912 plaintiff informed defendant he would never make him a deed for said premises and has never done so; that on or about August 20, 1912, there was due plaintiff $ 4100 for the purchase price of said land, which, with the interest, and taxes on said land paid by plaintiff since the year 1912, amounts to $ 6000, which sum he offers to pay into court for the benefit of plaintiff. Wherefore he prays the contract be specifically performed.

The reply is a general denial, and further avers that the alleged contract was not to be performed within a year, was not reduced to writing, and was void under the Statute of Frauds.

The case was tried May 7, 1919, and judgment rendered for the plaintiff, assessing his damages at $ 500 and the monthly rents and profits at $ 40, and dismissing defendant's cross-bill. Motion for new trial being overruled, defendant appealed.

Plaintiff bought the farm in 1899 and lived on it with his wife and son, the defendant, a bachelor of mature years. The defendant had been working on the farm and was to receive one-third of the income. It seems that plaintiff kept all the income, and in the summer of 1903 the son concluded to leave the farm and talked about buying a restaurant in Tipton.

Gallaher, a witness for plaintiff, testified he heard a conversation between the plaintiff and defendant early in August, 1903. Plaintiff said his son should take the farm at $ 5500, giving plaintiff $ 275 per year, and Felix would have it when plaintiff and his wife died; that would be five per cent on $ 5500 for the rental value of the land. Felix seemed satisfied. That was a fair price for the land. The rental value now is $ 7 per acre. This talk was in Tipton, in Steinkraus's shoe shop. Six months after this plaintiff went to Tipton. His son was not married; he married in January, 1905. None of this $ 5500 was to be paid, nothing but the rent during the intervening period. Nothing said about making a deed.

Felix Scheerer testified: "I lived on the farm with father and mother about five years; have been in possession alone about fifteen years. Father was to give me one-third of what we made on the farm, but he had never settled with me from the time we moved there until this August, 1903, and I asked for a settlement and told him I wanted to work for myself. He figured up and wrote me a check for $ 900, but that included my mare, wagon, farm tools and cow at what I paid for them, $ 400, and he aimed to keep them when he gave me this check. After he settled with me he went out of the house, and my mother said she didn't want me to leave, but to stay and run the farm; they were getting old and would have to rent or sell it. I said I would not rent the place, but I will buy it if father will sell it on time. Mother said to go and see him. I went to the barn and asked him. He said he would sell me the farm at $ 5500 and charge me five per cent on the money. I said that was all right; I have $ 500 in this check, I will give it back and consider $ 500 paid on the place and keep my stock and pay you $ 250 interest a year and he said that was all right. He said I won't make you no deed until you have more money to pay off on it. Next thing he said was, I will pay the taxes if you will furnish me my wood, and I said I would do that, haul it to town, and I did that up until and including 1912. He has paid the taxes. Father moved to town. The next payment I made on the land was February 1, 1910, $ 500. (Witness here produced a receipt which he said he had carried in his pocket book). I wrote it and father signed it at his house in Tipton. It reads: 'Tipton, Feby. 1, 1910. Received of Felix Scheerer one thousand dollars payment on tract of land of ninety-two acres of land. (Signed) Christ. Scheerer.' I told father he had given me nothing to show for that first $ 500. He said just make this...