Tinnon v. Tanksley, 51553

• Decision Date: 14 November 1966
• Docket Number: No. 51553,No. 1,51553,1
• Citation: 408 S.W.2d 98
• Parties: Woodrow TINNON, Plaintiff-Appellant, v. Sam TANKSLEY, Defendant-Appellant. Dale Alcorn and Delmar Alcorn, d/b/a Alcorn Bros. Real Estate, Defendants-Respondents
• Court: Missouri Supreme Court

Page 98

408 S.W.2d 98

Woodrow TINNON, Plaintiff-Appellant, v. Sam TANKSLEY, Defendant-Appellant Dale Alcorn and Delmar Alcorn, d/b/a Alcorn Bros. Real Estate, Defendants-Respondents.

No. 51553.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1966.

Roderic R. Ashby, Charleston, for plaintiff-appellant.

Dwight Crader, Sikeston, for defendant-appellant.

HOUSER, Commissioner.

The named purchaser in a written contract for the sale of 80 acres of land, Woodrow Tinnon, filed a suit in two counts against the sellers named in the contract, Sam Tanksley, and Dale and Delmar Alcorn, d/b/a Alcorn Bros. Real Estate. Court I sought specific performance of the contract. Count II sought to recover down payments of $4,000 and damages for breach of contract in the sum of $2,000. Defendants filed a general denial and a counterclaim for recovery of possession of the land, for $5,000 for unlawfully withholding possession of the land (Tinnon was a tenant on the land at the time he signed the contract to buy it) and for $2,400 for rents and profits. The court found that the contract was rescinded and denied specific performance; that plaintiff was entitled to the return of his $4,000 and that defendants were entitled to rents and profits in the sum of $1,600, and rendered judgment accordingly. Plaintiff Woodrow Tinnon and defendant Sam Tanksley both appealed.

Title to real estate is involved within the meaning of Art. V, § 3, Constitution of Missouri, V.A.M.S.; Price v. Ridler, Mo.Sup., 373 S.W.2d 59(1).

We review the entire record and reach our own conclusions as to the facts, determining the weight and value to be given the evidence, deferring to the findings of the trial court, however, when proper. Anderson v. Abernathy, Mo.Sup., 339 S.W.2d 817(1).

Leland O'Reilly owned a 200-acre farm in Mississippi County. The farm was rented to Woodrow Tinnon. On August 19, 1963 O'Reilly and Sam Tanksley entered into a real estate contract for the sale of the 200 acres. January 10, 1964 was fixed as the closing date. On September 16, 1963 Tanksley made a written contract with Woodrow Tinnon for the sale of 80 acres out of the 200-acre tract for $34,000, $2,000 down and $2,000 upon the purchaser receiving a commitment to make a loan, 'the balance in cash upon the closing of this transaction, which shall be on or before January 10, 1964.' The contract was to be considered null and void and the money deposited returned to the buyer in the event the buyer should be unable to obtain the loan within 60 days after the date of the contract. Time was agreed to be of the essence. If seller kept his part of the bargain by furnishing good and sufficient title and the buyer failed to comply with the terms of the agreement within 10 days thereafter the money deposited was to be forfeited as liquidated damages, and the contract was to be thereafter inoperative, at the option of seller. (Although the real estate agents Alcorn who negotiated the deal were designated in the contract as cosellers with Tanksley, their only interest was in the commission.)

Tinnon paid $2,000 when the contract was executed. He received a loan commitment from an insurance company on November 7, 1963. On November 12, 1963 Tinnon made a second $2,000 payment. O'Reilly gave Tinnon written notice to vacate the 80 acres, effective December 31, 1963, but Tinnon did not vacate and was still in possession at time of trial in December, 1964. Tinnon did not on or before January 10, 1964 offer to pay the balance of the purchase price. He was unable to close the deal on time because he could not obtain the signature of his wife on the loan papers. She had filed suit for divorce on February 23, 1963 and was unwilling to sign the papers. Tanksley did not at any time declare the contract void and the $4,000 forfeited when on January 10, 1964 Tinnon failed to pay the balance due on the contract. There was no communication between the parties themselves. On January 20, 1964 the attorneys employed by the insurance company to examine the title wrote to Tinnon, informing him that they had received a check from the insurance company and that 'this can be closed at your convenience'; that they were authorized to hold the check 'only for a time specified.' Tinnon did not answer the letter or communicate with the attorneys or the sellers. Tinnon did not at any time communicate to the sellers that he was ready to close; did not tender the money and demand a deed, and did not instruct his attorney to close the deal at any time for the reason that his attorney assured him that he had talked to Tanksley and Alcorn and he thought 'everything was okay,' i.e., that the sellers would not do anything 'to hurt Woodrow' and would 'hold the 80 until Woodrow got his divorce over with.' From November, 1963 until March 21, 1964 the attorneys for Tinnon and his wife were negotiating with respect to a settlement of the property rights of the parties. The sellers did not insist upon a specific date beyond which they would no longer wait. Instead, by acts and conduct, they countenanced the delay for a period of several weeks after January 10, 1964.

On January 1, 1964 a principal and interest payment became due by O'Reilly to an insurance company. O'Reilly intended to pay this debt out of the proceeds of the sale of the 200 acres to Tanksley. He made several inquiries of the Alcorns, asking when the deal between O'Reilly and Tanksley was to be closed, stating that he needed his money. Dale Alcorn and Tanksley were 'fussing,' 'wanting Woodrow to hurry up and get this divorce over with so they could close the deal' between Tanksley and Tinnon. They said that O'Reilly was pushing them and that they 'needed to get the thing out of the way.' Tinnon's attorney could not give them a definite date on which Tinnon would close the contract. It depended upon the granting of the divorce, which was indefinite as to time because the parties were still negotiating with respect to the property. Tinnon's attorney did not request of the sellers that they give a commitment postponing the closing to a specific date and no such commitment was ever made. 'Off and on' during January, February and March, 1964 Tinnon's attorney would talk to Tanksley about the status of the divorce suit. Tanksley would ask 'when are you going to get that divorce? We need to get this thing over with,' and Tinnon's attorney would reply that they were typing to get a property settlement worked out 'so that Woodrow could go ahead.'

The time came when the checks sent by the insurance company for the Tinnon loan had to be returned to the company. Tanksley had paid down $5,000 earnest money on his contract with O'Reilly. Finally, under obligation to fulfill that contract and to protect his earnest money from forfeit, Tanksley on March 5, 1964 consummated his contract with O'Reilly, took a deed to the property, and on the same day made a deed of trust to Prudential Insurance Company covering the 80 acres and other lands as security for a loan the proceeds of which he applied on his debt to O'Reilly. Tanksley's attorney had previously told Tinnon's attorney that Tanksley was going to close the purchase of the 200 acres in his name and close the loan. 'The general idea' was for Tanksley to close that deal in his name, 'and the 80 would be held for Woodrow' until Woodrow 'got his divorce over with.' On March 12, 1964 Tanksley entered into a contract for the sale of the 80-acre tract to Dearmont Oliver and wife, without notice to Tinnon or his attorney and without giving Tinnon any opportunity to pay the balance due under his contract with Tanksley. The Tinnons settled their controversy over property rights on March 21, 1964 and were divorced on March 25, 1964. Tinnon, having learned of the sale of the 80 acres to the Olivers, filed this suit on May 6, 1964. Notice of lis pendens was filed on November 14, 1964. On November 17, 1964 Tanksley deeded the 80 acres to Dearmont Oliver and wife. The Olivers were not joined as parties in this action.

On his appeal Tinnon makes the point that the court erred in not granting specific performance, but if specific performance cannot be granted claims that he is entitled to a refund of the $4,000 he paid on the purchase price, plus interest.

There was no error in denying specific performance. Tinnon pleaded that defendants entered into a contract to convey the land to another and proved that after suit was filed but before trial defendants executed a warranty deed conveying the title to Dearmont Oliver and wife. This placed it out of the power of defendants to perform their contract with Tinnon. The Olivers were not made parties to this action. Specific performance could not be granted. McKown v. Driver, 54 Wash.2d 46, 337 P.2d 1068(1). 'The specific performance of a contract for the purchase of real estate may be decreed only where it is possible for the defendant to convey the land. If he has no title, or has parted with the title after the execution of the contract, the court will not grant a vain judgment.' Saperstein v. Mechanics' & Frarmers' Savings Bank, 228 N.Y. 257, 126 N.E. 708. This same problem was before this Court one hundred years ago in Brueggeman v. Jurgensen, 24 Mo. 87. What was said then is applicable here and now: 'If we regard the suit as one to enforce the specific performance of a contract to convey lands, the petition is so framed that such relief can not be granted. It appears from the record that the title to the lot which the plaintiffs would have conveyed to them, is not in the defendant. He has passed it away for a valuable consideration, and his vendee is not made a party to the suit. Whether that vendee is a bona fide purchaser, it is not necessary to inquire, as he is not before this court. It would be a vain thing, and the plaintiffs would not be at all advanced, to make a decree vesting the title of the defendant in them, when it appeared that all the title the defendant ever...