Wheeler v. Ball

• Decision Date: 23 May 1887
• Parties: I. C. WHEELER AND SAMUEL WHEELER, Respondents, v. EMMA B. BALL, ADMINISTRATRIX, ETC., Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 443

I. C. WHEELER AND SAMUEL WHEELER, Respondents, v. EMMA B. BALL, ADMINISTRATRIX, ETC., Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Reversed.

Statement of case by the court.

Appellant is the administratrix of the estate of E. P. Ball, deceased.

I. F Garner, on April 1, 1876, was the owner of lot 584 in North Carthage, and executed a deed of trust upon said lot to M. G McGregor, trustee, to secure payment to McAfee & Phelps of two notes of said date of $122.50 each, due respectively in six and twelve months, with interest from date at the rate of ten per cent. per annum, the interest, if not paid when due to become part of the principal and bear the same rate of interest.

On January 19, 1881, Garner conveyed the lot to C. P. Ball, by warranty deed in usual form, which deed contains the following condition and undertaking: " Subject to a mortgage of two hundred and fifty dollars, due C. B. McAfee and given by grantors herein, which said second party hereby assumes and agrees to pay, it being part of the consideration of this conveyance."

On the third day of April, 1882, said Ball executed and delivered to plaintiffs a bond for a deed for said property, being an ordinary title bond, making no reference to the assumption of the payment of the deed of trust or other incumbrance.

Ball died on the tenth day of May, 1883, and defendant was duly appointed administratrix of his estate. On February 11, 1884 the plaintiffs filed their petition in the probate court alleging full payment for the property and asking for specific performance of the contract or bond above set out.

Upon a hearing of the matter the probate court directed the administratrix to specifically execute the contract, and in obedience to the order of the probate court the administratrix executed and delivered to the plaintiffs a deed to the property and the plaintiffs surrendered the contract or bond for a deed to the administratrix.

On the third day of April, 1875, plaintiffs paid C. B. McAfee and John S. Phelps the notes specified in the deed of trust given by Garner to McGregor, and then gave notice to the administratrix of the presentation of a claim against the estate of Ball, which notice set out the notes given by Garner to McAfee & Phelps, the deed of trust to McGregor heretofore referred to, the deed from Garner to Ball, the bond for a deed from Ball to Wheelers, the petition for specific performance of contract, the deed by the administratrix to plaintiffs, and the payment of the notes to McAfee & Phelps, upon which state of facts the plaintiffs asked to have the amount paid by them to McAfee & Phelps in extinguishment of the notes allowed as a demand against the estate of Ball. The claim was allowed in the probate court, and on appeal to the circuit court was again allowed and defendant brings the case here.

W. H. PHELPS, for the appellant.

I. The acceptance of the administratrix's deed and surrender of the bond for the deed given by Ball in his lifetime to the plaintiffs, was a complete execution of the antecedent agreement to convey, and no further action could be maintained upon it, and any inconsistencies between the terms of the contract and the terms of the deed are to be determined solely by the latter into which the former are merged. And the purchaser's only right to relief from defects or incumbrances, whether in law or equity, depends solely upon the covenants for title which he has received in his deed. Rawle on Covenants for Title, 565; House v. Barker, 3 Johnson 506; Houghtaling v. Lewis, 10 Johnson 296; Jones v. Wood, 16 Pa.St. 225; Shouts v. Brown, 27 Pa.St. 120; Carter v. Beck, 40 Ala. 590.

II. The court erred in permitting the plaintiffs to show by parol that Ball agreed to assume the payment of the notes upon which the plaintiffs base their claim in this action, as it was in contradiction and not in explanation of the written agreement contained in the deed from Garner to Ball. Koehring v. Muemminghoff, 61 Mo. 407.

III. The probate court has no equity power and cannot enforce the doctrine of subrogation upon which the plaintiffs seem to claim the right to have this claim allowed against the estate of Ball. Presbyterian Church v. McElhenney, 61 Mo. 543; Grayson v. Waddell, 63 Mo. 523; Butler v. Lawson, 72 Mo. 245.

IV. The court erred in admitting any testimony on the part of the plaintiffs and in refusing the second and third declarations of law asked by the defendant. The court having declared in the second declaration of law given on behalf of the defendant that the plaintiffs have no claim against the estate of Ball, other than that arising under the bond for a deed given by Ball to the plaintiffs, could only recover on account of the breach of the condition of the bond, if at all. The only contract made between C. P. Ball and the plaintiffs was an agreement to execute and deliver to plaintiffs a warranty deed to certain lots upon the payment by plaintiffs of the purchase money, and there is no question but that plaintiffs could have required Ball to make a good title to the lot and pay off the mortgage to McAfee & Phelps before they could have been required to pay the purchase money. Rawle Covenants for Title, 42; Brown v. Gammon, 14 Me. 276; Hill v. Hobart, 16 Me. 164; Stow v. Stevens, 7 Ver. 27; Joslyn v. Taylor, 33 Ver. 470; Littleford v. Paddleford, 13 N.H. 167; Dodd v. Seymour, 21 Conn. 480; Swan v. Drury, 22 Pick. [Mass.] 488; Dwight v. Cutler, 3 Mich. 576; Tackett v. Williamson, 31 Mo. 54; 37 Mo. 388; Davis v. Henderson, 17 Wis. 166; Pugh v. Chuseldine, 10 Ohio 109. All the foregoing authorities hold to the doctrine that while the contract is still executory the purchaser has a right to a title clear of defects and incumbrances, and a court of equity will not decree specific performance where the title is bad, or even where it is doubtful. But when the contract has been consummated by the execution and delivery of the deed a different rule comes in. Dart on Vendors. 734.

V. Being thus consummated any inconsistencies between the terms of the contract and the terms of the deed are in general to be determined solely by the latter into which the former are merged, and the purchaser's only right to relief from defects or incumbrances, whether at law or in equity, depends, in the absence of fraud, solely upon the covenants for title which he received. Rawle on Covenants for Title, 565-6; House v. Barker, 3 Johnson 506; Houghtaling v. Lewis, 10 Johns 206; Bull v. Willard, 9 Barb. 642; Seitzinger v. Weaver, 1 Rawle 377; Cronister v. Cronister, 1 Watts & Serg. (Pa.) 442; Ludwick v. Hentzinger, 5 Watts & Serg. 51; Griffith v. Kempshall, 1 Clark Chan. 577; Jones v. Wood, 16 Pa.St. 25; Shouts v. Crown, 27 Pa.St. 123; Carter v. Beck, 40 Ala. 590; Haggerty v. Fagin, 2 Pa. 533; McKennan v. Dougham, 1 Pa. 417; Creigh v. Beelin, 1 Watts & Serg. 83.

VI. It was not competent to show by parol that Ball assumed to pay the notes offered in evidence, as the testimony was not in explanation of the contract made between Ball and Garner, but in contradiction of it. While parol evidence is admissible for the purpose of explaining a written contract, it is not competent for the purpose of changing it.

H. C. DEVORE and D. A. HARRISON, for the respondents.

I. It was the duty of the probate court to hear and determine the demand in a summary way and to receive all competent evidence without the form or technical precision of pleading. 1 W. & S. sect. 18; Sublet v. Neilson, 38 Mo. 487. The assumption by C. P. Ball of I. F. Garner's trust debt to McAfee and Phelps, by acceptance of the deed from Garner, with the recital that the lot therein conveyed was subject to said debt as part consideration of the conveyance, made said debt Ball's own personal debt, and subjected him to a liability which the holder of the notes may enforce by personal action. Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 70 Mo. 685. The stipulations of Ball's contract with Garner enured to the benefit of McAfee and Phelps, and all holders of the notes under them, if adopted by such holders--and they may maintain a personal action thereon. Fitzgerald v. Barker, 70 Mo. 687; Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchinson, 47 Mo. 239; Rogers v. Peak, 51 Mo. 469; Cress v. Blodgett, 64 Mo. 452.

II. Plaintiffs as the owners of said lot 584, to save it from sale for the satisfaction of said trust debt, had the right to pay the McAfee and Phelps notes, and not being legally liable to pay said debt, the same was not extinguished and they became subrogated to all the rights of McAfee and Phelps against Ball, who had made said debt his own personal debt. Swope v. Leffingwall, 72 Mo. 348; Allen v. Dermott, 80 Mo. 56.

III. The probate court had jurisdiction of the subject-matter of this action-- the only purpose being to obtain an allowance against the estate of Ball for $578.17 paid McAfee and Phelps. It is a case of a mere recovery of a demand against said estate for the personal debt of the decedent existing at the time of his death. Acts 1865-6, p. 83; Butler v. Lawson, 72 Mo. 350; Presbyterian Church v. McElhinney, 61 Mo. 544; Hammons v. Renfrow, 84 Mo. 332. It is not an action to follow a trust fund through all its transformations from money into personal and real property, or to divest title and vest it in the rightful owners, etc., requiring the intervention and machinery of chancery powers, but a case where the remedy at law is amply efficacious and complete.

IV. The objection that the circuit court erred in admitting the parol evidence is not tenable, as it is now the well settled law of this state that parol evidence is admissible to show what was the...