Soward v. Johnston

• Decision Date: 30 April 1877
• Parties: SWARD ET AL. v. JOHNSTON, PLAINTIFF IN ERROR.
• Court: Missouri Supreme Court

65 Mo. 102

SWARD ET AL.

v.JOHNSTON, PLAINTIFF IN ERROR.

Supreme Court of Missouri.

April Term, 1877.

Error to Pike Circuit Court--HON. A. H. BUCKNER, Judge.

John Johnston, p. p.--Equity will not require a purchaser, holding title bond for good and sufficient conveyance, to accept and pay for a defective or doubtful title. Sackett v. Williamson, 31 Mo. 54; Wellmans Adm'r v. Dismukes, 42 Mo. 101; Dietrich v. Franz, 47 Mo. 85. Plaintiffs seeking for specific performance must tender deed such as their title bond requires, before they are entitled to judgment or decree. 2 Hilliard on Vendors, 71, 72; Burwell v. Jackson, 9 N. Y. 546; 4 Abbott's Nat. Dig. 339. If it were proven that defendant, as attorney for plaintiffs, gave them an opinion, pronouncing the title good, which opinion afterwards proved to be erroneous, plaintiffs might, perhaps, have a right of action against defendant for damages, but as there is no pretence that defendant claimed any title in himself, or that he was the party making sale of the property to plaintiffs, they will hardly be permitted to show such mistaken opinion to relieve them in this action from compliance with the terms and requirements of their title bond. Estoppel en pais can only affect existing title. Donaldson v. Hibner, 55 Mo. 492.

Fagg & Dyer for defendants in error.

Defendant is estopped from denying the title which plaintiffs had at the time of his purchase, and which they acquired on the strength alone of his advice as their attorney.

NORTON, J.

Plaintiffs instituted their suit in the Circuit Court of Pike county, upon three promissory notes executed by defendant in consideration of the sale of lot 86, in block 117, in the city of Louisiana, and of work and labor and materials furnished in building a house thereon, at the request of defendant, and for him. It is further alleged that plaintiffs executed and delivered to defendant a title bond to said Johnston, in which they obligated themselves, upon the payment of said notes, to convey to said defendant the lot in question by a good and sufficient deed of general warranty. It is also alleged that plaintiffs were willing and ready to comply with the terms of the title bond, and judgment was asked on said notes as well as a judgment for the sale of the lot. The answer of defendant admits the execution of the notes, the consideration for which they were given, and the execution of the title bond, but denies that plaintiffs ever had any legal or equitable title to said lot, and alleges that, in September, 1873, defendant tendered to plaintiffs the full amount of said notes, interest and costs, and demanded a deed, which was refused. The new matter set up in the answer was denied by replication, and upon a trial of the cause by the court, without the intervention of the jury, judgment was rendered for plaintiffs for $1,226.64 and for the sale of the lot in conformity with the prayer of the petition. It appears from the evidence in this case that the...