Waddington v. Lane

• Decision Date: 19 March 1907
• Citation: 202 Mo. 387,100 S.W. 1139
• Parties: WADDINGTON v. LANE et al.
• Court: Missouri Supreme Court

100 S.W. 1139

202 Mo. 387

WADDINGTON v. LANE et al.

Supreme Court of Missouri. Division No. 2.

March 19, 1907.

1. APPEAL—REVIEW—SUBMISSION OF ISSUES —PREJUDICE.

Where plaintiff alleged that the vendor contracted to convey land to him, but sold to defendants, though plaintiff was ready and willing to perform, and sued the vendor and defendants to compel a conveyance by the latter to him, the submission of the questions raised by such allegations could not prejudice defendants' rights, since the allegations were confessed by the vendor's failure to answer.

2. SPECIFIC PERFORMANCE—TRIAL — SUBMISSION OF ISSUES—MATERIALITY.

Where plaintiff sued to compel a conveyance of land, alleging that defendants knew the vendor had previously contracted to convey to him, it was proper to submit to the jury the issue as to whether defendants actually knew that fact.

3. APPEAL—REVIEW—SUBMISSION OF ISSUES —PREJUDICIAL ERROR.

In a suit to compel the conveyance of land, the submission to the jury of a matter not in controversy is not prejudicial error, where the matter is entirely ignored in the decree, since under Rev. St. 1899, § 722 [Ann. St. 1906, p. 715] authorizing the court to submit issues it shall deem necessary, the submission of matters not in controversy is as if they had not been submitted at all, and the finding of the jury upon an issue properly submitted will not be affected by such improper submission.

4. SAME—EQUITY—REVIEW OF EVIDENCE.

In a suit to compel defendants to convey land to plaintiff because the vendor had, with defendants' knowledge, previously agreed to convey to plaintiff, the finding of the jury that defendants had such knowledge being merely advisory, the Supreme Court will not pass upon the admissibility of evidence offered under that issue, but will review the evidence and make its own conclusion.

5. SAME—INSTRUCTIONS—HARMLESS ERROR.

The decree in a suit to compel the conveyance of land cannot be affected by any error of the court in instructing on issues submitted to the jury.

6. SPECIFIC PERFORMANCE—DECREE—BASIS.

Where plaintiff alleged that the vendor contracted to convey land to him, but sold to defendants, though plaintiff was ready and willing to perform and sued the vendor and defendants to compel a conveyance by the latter to him, and, though the vendor did not answer, issues based on such allegations were submitted and found for plaintiff, the decree for plaintiff should have been based upon the allegations of the petition as to the vendor, by whose failure to deny them they stood confessed, and upon the finding of the jury that defendants purchased with notice of plaintiff's prior purchase.

7. EQUITY—SUBMISSION OF ISSUES TO JURY.

In a suit to compel the conveyance of land, the court could, under the express provisions of Rev. St. 1899, § 692 [Ann. St. 1906, p. 702], take the opinion of the jury upon any specific question of fact involved in the case, and pass upon other facts in issue upon the evidence before it, and make its own finding upon all the facts.

8. APPEAL — EQUITY—REVIEW—CONCLUSIVENESS OF FINDING.

On appeal in an equity case, the findings of the chancellor will be deferred to, unless it manifestly appears that he disregarded the evidence.

9. SPECIFIC PERFORMANCE—SUIT—EVIDENCE— SUFFICIENCY.

Evidence, in a suit to compel the conveyance of land which defendants' vendor had contracted to convey to plaintiff, held to sustain a finding that defendants had actual knowledge at the time of their purchase of a prior purchase by plaintiff.

10. SAME.

Where the vendor agreed to convey land to plaintiff, but conveyed it to defendants, plaintiff could compel a conveyance from defendants to him on showing that defendants, when they purchased, had notice of such facts and circumstances as would have put an ordinarily prudent person upon inquiry regarding such prior sale.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Suit by Bartholomew Waddington, Jr., against John Lane, George W. Adams, and others. From a decree for plaintiff, defendants Lane and Adams appeal. Affirmed.

Fry & Rodgers, for appellants. D. A. Murphy and O. Hitt, for respondent.

BURGESS, J.

This is a suit in equity for a decree divesting the defendants Lane and Adams of the legal title to certain lands in Audrain county, vesting the same in plaintiff, and for other relief. The petition, omitting the caption, is as follows:

"Plaintiff for his second amended petition herein states that on the 27th day of May, 1902, and for several years prior thereto, the defendant Henry Waddington, of the state of Florida, was the owner of the following described land situated in the county of Audrain and state of Missouri, to wit: Lots 1 and 2; the same being the S. W. ¼ of section 31, township 51 N., range 7 W. of the fifth P. M., and containing 144 52/100 acres, more or less. That on said May 27, 1902, by contract in writing duly entered into and ex-excuted by and between plaintiff and said Henry Waddington, the plaintiff purchased the said land from the said Henry Waddington for and at the price of $20 per acre, and thereupon paid said Henry Waddington $200 on said purchase price, and by said contract was to pay said Henry Waddington the balance of said purchase price upon the said Henry Waddington's delivering to him a good and sufficient abstract of the title to said land, a warranty deed therefor, and full possession and control thereof and all appurtenances thereto belonging, all of which things the said Henry Waddington by his said written contract with the plaintiff agreed to do and perform on March 1, 1903. Plaintiff cannot file herewith the original of said written contract, because it is on file with the petition in the case of Bert Waddington, plaintiff, v. Henry Waddington, defendant, now pending in this court, but a copy of which written contract is in words and figures as follows:

"`Benton City, Mo., May 27th, 1902.

"`Know all men by these presents that Henry Waddington, a widower of Crystal, Citrus county, Florida, party of the first part, and Bartholomew Waddington, Jr., of Benton City, Mo., party of the second part, do enter into the following agreement, to wit: Party of the first part do on this day sell to party of the second part, the following described lands, viz.: Lots one (1) and two (2) southwest quarter (¼) of section thirty-one (31), township fifty-one (51) north, range seven (7) west of the fifth P. M., Audrain county, Missouri, and containing about one hundred and forty-four and fifty-two hundredths (144 52/100) acres more or less, for the sum and consideration of twenty ($20) dollars per acre, and by the party of the second part paying on this day the sum of two hundred dollars ($200.00) by draft from the Mexico Savings Bank to the National Park Bank New York City, N. Y., No. 8,869, dated May 27th, 1902, of which a receipt is hereby acknowledged for said sum of two hundred dollars ($200.00), as part payment on said lands herein described.

"`Party of the first part do hereby agree to make, execute and deliver his warranty deed and furnish a good and sufficient abstract of title of all said land described herein, on March 1st, 1903, and the full possession and control of said farm and all appurtenances thereto belonging, and upon delivery of the same by first party to the said second party herein said second party herein do hereby agree to pay the remainder of the purchase money in cash in hand.

"`Witness our hand and seals on this, the 27th day of May, 1902.

                  "`Henry Waddington,             [Seal.]
                  "`Bartholomew Waddington, Jr.   [Seal.]'
                

"Plaintiff further says that on March 1, 1903, in pursuance of and under said written contract, and by and with the consent of said Henry Waddington, he took actual possession of said land and all appurtenances thereto belonging, and ever since said date he has been in the actual, open, notorious, and continuous possession thereof under and by virtue of said contract of purchase; that on March 1, 1903, plaintiff was ready, able, and willing, and ever since said date has been ready, able, and willing, to fully carry out, do, and perform his part of the said written contract; that on or about March 1, 1903, and at divers times since then, he so notified said Henry Waddington and requested him to execute and deliver to him a deed to said land, as by his said contract in writing he had obligated himself to do. Plaintiff further states that during the year 1898, and until said Henry Waddington sold said land to plaintiff, on May 27, 1902, said defendant Henry Waddington was the owner thereof and rented the same to the plaintiff from year to year, upon the express terms and agreement that plaintiff, during his tenancy, should have the privilege of making such repairs and improvements on said land as plaintiff in his judgment might deem proper or necessary, and that, if said Henry Waddington did not sell the land to plaintiff, he would pay the plaintiff for such repairs and improvements such sums as they might be reasonably worth; but that, if he (Henry Waddington) should sell the said land, plaintiff should have the first chance to buy it, and should have it at the price of $20 per acre, and, in the event of plaintiff's so purchasing said land, he was to receive nothing from said Henry Waddington for such repairs and improvements as he might make thereon. That in pursuance of said understanding and agreement with said Henry Waddington, and by reason thereof, the plaintiff was thereby induced to make and did make on said land, from March 1, 1898, to May 27, 1902, the following improvements and repairs, for which he has received no pay or consideration, to wit: That during the year 1899 he raised the old house and put a new foundation under it, put new roof on said house and new flues therein and two doors and windows, and casing for same, at the cost of labor and material of the value of $45. He built 40 rods of fencing, at a...