Whiting v. Enterprise Land & Sheep Co.

• Decision Date: 01 June 1915
• Docket Number: No. 17353.,17353.
• Citation: Whiting v. Enterprise Land & Sheep Co., 265 Mo. 374, 177 S.W. 589 (Mo. 1915)
• Parties: WHITING v. ENTERPRISE LAND & SHEEP CO. et al.
• Court: Missouri Supreme Court

177 S.W. 589

265 Mo. 374

WHITING v.ENTERPRISE LAND & SHEEP CO. et al.

No. 17353.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Henry W. Whiting against the Enterprise Land & Sheep Company and others.From a decree for plaintiff, defendants appeal.Reversed and remanded.

The plaintiff sued the defendant to specifically enforce the following agreement:

            "Agreement
                

"This agreement entered into this 5th day of September, 1911, by and between 1. C. Van Noy, hereinafter called the seller, and henry W. Whiting, hereinafter known as the buyer, witnesseth: The buyer hereby agrees to purchase from the seller all his interest in and to 57,700 shares of the capital stuck of the Enterprise Land & Sheep Company, of Kansas City, Missouri, at and for the sum of $20,130, to be paid as follows: $20,000 by note of ordinary form, payable on or before five (5) years from date; $6,000 by 6,000 shares of the capita stock in said company, at the par value of $1 per share.The buyer agrees to pay the interest on the Goettel notes to date of consummation of this deal, and seller to reimburse the buyer in the sum equal to the difference between said interest and $1,136.The buyer hereby agrees to immediately begin investigation of the title to the land owned by said company (16,249 acres in Carter, Reynolds, and Wayne counties, Missouri), and to close the deal within thirty (30) (lays from the date hereof, provided the title is a reasonably salable one, or can be made good in a reasonable time, and at a reasonable expense; the buyer further agreeing that, upon his acceptance of said title, the seller shall be released from all personal responsibility on account of same.The seller hereby agrees to pay off all indebtedness now owing by said company, except said interest accrued to Goettel as aforesaid, and excepting the balance due on the said land, or which may become due.

"In witness whereof, we have hereunto set our hands this day and year aforesaid.

              "Seller: I. C. Van Noy
                              "Buyer: Henry W. Whiting"
                

The petitioner alleges the legal effect of the above contract, and also: That the defendantI. C. Van Noy delivered to him the 57,700 shares of stock, and that be is the owner thereof; that no transfer has been made on the books of the defendant company; that the abstract of title to the lands referred to in said agreement has been delivered to plaintiff, who, after examining the same, was ready within 30 days to close the trade, provided the title was a reasonably salable one, or could be made good in a reasonable time and at a reasonable expense.That plaintiff notified the said I. C. Van Noy that he was ready to carry out his contract upon compliance therewith by tie latter.That the lands referred to in the contract had been previously owned by one Goettel, a citizen of Pennsylvania, who had executed a deed to the defendant corporation and placed it in escrow to be delivered on the payment of $17,000, which payment was made on October 17, 1911, and the deed was recorded on October 31, 1911, in the counties of Carter, Reynolds, and Wayne, where the said land was situated.That thereafter the vendee, the defendant company, made a conveyance without authority of its board of directors of said land to H. C. Koehler, to secure him a sum of money not exceeding $17,000.That said deed could only operate, if at all, as an equitable mortgage to secure the money loaned thereon by said Koehler.

The petition prays: That this (Pied be annulled or treated as an equitable mortgage.That defendantVan Noy be required to specifically perform his contract, or to cause the transfer of the shares of stock to be made to plaintiff on the books of the defendant company.That Koehler be restrained from disposing of the land deeded to him by the defendant corporation, and for general relief.

The defendant's answer admitted the incorporation of one of the defendants and the execution of the contract exhibited with the Petition, and that the lands conveyed to the corporate defendant were theretofore owned by one Goettel, and that his deed and that placed in escrow had been since delivered and recorded together with the deed of trust given by the defendant corporation to secure the unpaid purchase money for said land, admitting that thereafter said defendant corporation conveyed the land to said Koehler, and that no meeting of its board of directors authorized that conveyance.

The answer denied the remaining allegations of the petition and averred plaintiff's remedy was at law.The reply took issue.

On the trial defendant Koehler filed a disclaimer of any cause.

The court rendered a decree, to wit:

"The court doth order, adjudge, and decree that within sixty (60) days from this date defendantI. C. Van Noy convey or caused to be conveyed the same or as good a title as such company had September 5, 1911, to the sixteen thousand two hundred forty-nine (16,249) acres of land described in the petition of plaintiff filed herein to the Enterprise Land & Sheep Company, a corporation, and one of the defendants in this cause, and that said company or I. C. Van Noy, defendant in this cause, deliver, if he or it has not already done so, fifty-seven thousand seven hundred (57,700) shares of the capital stock of said...