Wiemann v. Steffen

• Decision Date: 05 January 1915
• Citation: Wiemann v. Steffen, 172 S.W. 472, 186 Mo.App. 584 (Mo. App. 1915)
• Parties: FRITZ W. WIEMANN, Appellant, v. C. J. STEFFEN, Respondent
• Court: Missouri Court of Appeals

172 S.W. 472

186 Mo.App. 584

FRITZ W. WIEMANN, Appellant, v. C. J. STEFFEN, Respondent

Court of Appeals of Missouri, St. Louis

January 5, 1915

Appeal from Montgomery Circuit Court.--Hon. James D. Barnett, Judge.

Judgment affirmed.

Avery Young, Dudley & Killam and Nowlin & Hughes for appellant.

(1) The title tendered the plaintiff by the defendant by the deed was not a marketable title. Birge v. Bock, 44 Mo.App 69; Thompson v. Dickerson, 68 Mo.App. 535; Simmons v. McIlroy, 73 Am. State 677; Simon v Vandeveer, 63 Am. State 688; Moore v. Williams, 115 N.Y. 586; Vol. 26 Cyc., page 808; Zurke v. Kuehn, 113 Wis. 421. (2) The respondent by his false affidavit showing the fact that Alice Creech, who afterward married Story, was living at the time of the death of the mother, Leana Creech, cannot gain an advantage. Dorrance v. Dorrance, 165 S.W. 786; Crane v. Murry, 106 Mo.App. 280; Gordon v. Bruner, 49 Mo. 570. (3) The respondent in failing and refusing to give appellant the possession of the buildings on the 2nd day of March, 1911, was in default and the appellant had the right to rescind for this reason. (4) The construction placed upon the contract by the conduct of the parties shows that an abstract title was to be furnished, therefore proof of title by adverse possession would be eliminated. 173 Mo.App. 666; Ives v. Kimlin, 140 Mo.App. 293; Austin v. Shipman, 160 Mo.App. 206.

Frank Howell and R. L. Sutton for respondent.

(1) The title tendered plaintiff by defendant was a "marketable title," as that term is defined by the courts. Kling v. Realty Company, 166 Mo.App. 195; Summy v. Ramsey, 53 Wash. 93; Scannell v. American Soda Fountain Company, 161 Mo. 619; Adkinson v. Taylor, 34 Mo.App. 452. (2) A title based upon the Statute of Limitations is a good and marketable title, and one which the purchaser has no right to reject, where the contract does not expressly require the title to be evidenced by the records. Scannell v. American Soda Fountain Company, 161 Mo. 617; Long v. Lackawana Coal & Iron Company, 233 Mo. 713; Pratt v. Eby, 67 Pa. 396; Hedderly v. Johnson, 42 Minn. 443; Mitchner v. Holmes, 117 Mo. 185; Kling v. Realty Co., 166 Mo.App. 190; Summy v. Ramsey, 53 Wash. 93; Rozier v. Graham, 146 Mo. 355; Mastin v. Grimes, 88 Mo. 490; Green v. Ditsch, 143 Mo. 12; Thompson v. Dickerson, 68 Mo.App. 543; St. Clair v. Hellweg, 173 Mo.App. 666. (3) The conduct of the parties in jointly procuring an abstract did not convert the contract of sale, which was a contract for a good and marketable title simply, into a contract for a good and marketable title to be shown by an abstract of the record. St. Clair v. Hellweg, 173 Mo.App. 660; Long v. Lackawana Coal & Iron Company, 233 Mo. 720, 739. (4) The interest of the Story heir, if any he had, is as effectually barred by the Statute of Limitations, as it could have been barred by deed. Scannell v. American Soda Fountain Company, 161 Mo. 617; Long v. Lackawana Coal & Iron Company, 233 Mo. 739; Hutson v. Hutson, 139 Mo. 236; Warfield v. Lindell, 38 Mo. 580; Lapeyre v. Paul, 47 Mo. 590; Warfield v. Lindell, 30 Mo. 286; Misenheimer v. Amos, 221 Mo. 371; Gray v. Ward, 234 Mo. 297; Nickey v. Leader, 235 Mo. 42; Clapp v. Bromagham, 9 Cow. 530; Gobardus v. Trinity Church, 4 Paige, 178; Town v. Needham, 3 Paige, 545; Florence v. Hopkins, 46 N.Y. 186; Baker v. Oakwood, 123 N.Y. 16, 25 N.E. 312; Sweetland v. Buell, 69 N. Y. St. 733, 35 N.Y.S. 346; Foulke v. Bond, 41 N.J. Law, 527; Long v. Stapp, 49 Mo. 508; Campbell v. The Laclede Gas Co., 84 Mo. 375; Hendricks v. Musgrove, 183 Mo. 301; R. S. Mo. 1909, sec. 1881. (5) The interest to which the title is disputed is so insignificant as compared with the entire tract of land involved in the contract of sale, being only a one-thirty-second part thereof, that it would not justify a rescission of the contract of sale, even though the title to this small interest were conceded to be bad. Hart v. Hanlin, 43 Mo. 175; Luckett v. Williamson, 31 Mo. 54; 3 Parsons on Contracts, 400. (6) Time is not generally deemed to be of the essence of the contract, either at law or in equity. It is only required that neither party be permitted to abuse the matter of time to the disadvanage of the other. Scannell v. American Soda Fountain Company, 161 Mo. 621; Summy v. Ramsey, 53 Wash. 93; Carr v. Howell, 154 Cal. 372; East Jellico Coal Co. v. Carter, 30 Ky. Law, 174; Jones v. Robbins, 29 Maine, 351; Moore v. Smedburgh, 8 Paige, 600; Fulenwider v. Rowan, 136 Ala. 287; Steele v. Branch, 40 Cal. 3; Acosta v. Anderson, 56 Fla. 749; Ellis v. Bryant, 120 Ga. 890; Maris v. Masters, 31 Ind.App. 235; Sandford v. Weeks, 38 Kan. 319; Gilman v. Smith, 71 Md. 171; Boston, etc. v. Rose, 194 Mass. 142; Munro v. Edwards, 87 Mich. 112; Sylvester v. Born, 132 Pa. 467. (7) The court has found the issues against plaintiff, under instruction number 2 given by the court at plaintiff's request, and there is an end of the matter. Plaintiff will not be permitted to take a position here inconsistent with that taken in the court below. Berger v. St. Louis, etc., Co., 136 Mo.App. 36; Carey v. Metropolitan Street Ry. Co., 125 Mo.App. 188; Tomlinson v. Ellison, 104 Mo. 201; Smith v. Huff, 141 Mo.App. 476; Montgomery v. Wise, 138 Mo.App. 176; Jenkins v. Clopton, 141 Mo.App. 74; Crain v. Miles, 154 Mo.App. 338. (8) The failure of plaintiff to point out to defendant his objections to the title, prior to bringing his action, is a complete bar to a recovery in this case. Easton v. Montgomery, 90 Cal. 307; Kling v. Realty Co., 166 Mo.App. 194; Ashbaugh v. Murphy, 90 Ill. 182; Brewer v. Winchester, 2 Allen (Mass.) 389; Copertind v. Oppermann, 76 Cal. 181; Packard v. Usher, 7 Gray (Mass.) 529; Schmidtke v. Keller, 44 Oregon, 23; Rightor v. Kohn, 16 La. 501; Carty v. Steam Cotton Press Co., 5 La. 16; St. Clair v. Hellweg, 173 Mo.App. 660; Scannell v. American Soda Fountain Co., 161 Mo. 614; Thompson v. Dickerson, 68 Mo.App. 535. (9) The failure of plaintiff to specify in his petition the defect in the title relied on, is fatal to his action. Pohiem v. Meyers, 9 Cal.App. 31; Axtel v. Chase, 77 Ind. 74; Duvall v. Parker, 2 Duv. (Ky.) 182; Lewis v. Morton, 5 T. B. Mon. (Ky.) 1; Latham v. Morgan, Sm. & M. Ch. (Miss.) 611; Duvall v. Parker, 2 Duv. (Ky.) 182. (10) (a) The deed from George B. East and wife to Leonah Creech and "her bodily heirs" at common law would create an estate tail special or an estate tail male. Washburn on Real Property (3 Ed.), sections 22, 23 and 26, pages 87, 88; 16 Cyc. 609 B; Tiedeman on Real Property (1 Ed.), sec. 48. (b) This estate tail male--or special--was converted by our laws into a life estate in Leannah Creech and the remainder in fee in the male heirs of her body who would have taken it under the common law at her death, or male descendants who can trace their line back to the donee through males. Wash. on Real Property (3 Ed.), sec. 33, p. 90, and sec. 37, p. 91; Tiedeman on Real Property, sec. 48; Phillips v. LaForge, 89 Mo. 72; General Statutes Mo. 1865, sec. 4, p. 442; Farrar v. Chrysty's Admrs., 24 Mo. 453.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit for money had and received. The money sued for came into the hands of defendant under a contract which plaintiff thereafter rescinded. The trial was had before the court without a jury, where the finding and judgment were for defendant, and plaintiff prosecutes the appeal.

It appears that plaintiff and defendant entered into a written contract concerning the purchase of defendant's farm of 238 acres in Lincoln county. By the terms of the contract, plaintiff purchased defendant's farm at the agreed price of $ 11,700, and paid $ 500 down as earnest money thereon. It was agreed that the balance of the purchase price should be paid in part, and in part secured by plaintiff to defendant, on the first day of March, 1911, at which time the deed was to be executed by defendant and his wife and delivered to plaintiff and possession of the premises given. It is stipulated in the written contract that defendant should, on that date, make and deliver to plaintiff "a general warranty deed to said lands with good and marketable title, free from all liens and defects except taxes due for the year 1911." The controversy in the case relates to this matter, for the plaintiff insists that defendant did not tender a marketable title, whereas the court found he did.

Plaintiff paid $ 500 earnest money on the bargain when the contract was entered into several months before, and it appears that he was ready, able and willing to complete the purchase on March 1, 1911, and, indeed, extended the time until noon of March 2 of that year, to enable defendant to clear several defects in the title. Although there is no stipulation in the contract requiring defendant to furnish an abstract, it appears that he did so and plaintiff's attorney examined it prior to March first. On such examination several minor defects in the paper title were discovered and pointed out, and it appears defendant corrected all of them save one which relates to the apparent outstanding title of a one-eighth interest in sixty-five acres of the land, which title, it is said according to the records, resides in one Joseph Story. It appears that defendant had claimed to own the land for more than thirty-two years under a general warranty deed, and that, though he had resided thereon, cultivated it, paid the taxes, and exercised the usual acts of ownership with respect to it during that time, plaintiff objected to the title tendered because of such apparent outstanding one-eighth interest in sixty-five acres in Joseph Story. After waiting until noon of March 2, 1911, for defendant to correct the record title with respect to this interest,...