Williams v. Ellis

• Citation: 239 S.W. 157
• Decision Date: 03 April 1922
• Docket Number: No. 13922.,13922.
• Parties: WILLIAMS v. ELLIS.
• Court: Court of Appeal of Missouri (US)

239 S.W. 157

WILLIAMS v. ELLIS.

No. 13922.

Kansas City Court of Appeals. Missouri.

April 3, 1922.

Appeal from Circuit Court, Mercer County; L. B. Woods, Judge.

"Not to be officially published."

Action by George T. Williams against Adam D. Ellis. Judgment for the plaintiff, and defendant appeals. Affirmed.

Ben F. Kesterson and Archie N. Kesterson, both of Princeton, for appellant.

Hyde & Hyde and John E. Powell, all of Princeton, for respondent.

BLAND, J.

This is an action in two counts. The first count is to recover the amount ($1,000) paid by plaintiff to defendant on the purchase price of 100 acres of land sold by defendant to plaintiff and situated in Mercer county, Mo. The second count is to recover damages for the loss to plaintiff of the sale of said land by reason of defendant's failure to comply with his contract to sell the land to plaintiff. There was a verdict and judgment for plaintiff on the first count for $1,000, and on the second for $250, and defendant has appealed.

The contract of sale was executed on July 30, 1919. In it defendant agreed to sell the land to plaintiff for $20,000, $1,000 of which was paid at that time. Defendant agreed to deposit in escrow his warranty deed, signed by himself and wife, in the bank, to be delivered to plaintiff upon the payment by the latter to said bank on March 1, 1920, of the balance, $19,000. If plaintiff failed to carry out his part of the contract, the $1,000 paid was to be forfeited to defendant as liquidated damages. Defendant agreed to furnish "at once" an abstract of title "showing good merchantable title in first party [defendant] or in first party's grantor and deed placed in escrow." The abstract was furnished in January, 1920. Plaintiff had his attorney examine it, and the latter raised numerous objections to the title, some of which were met by defendant and some were not.

Defendant raised a number of objections to the giving and refusal of instructions, but, as we have concluded that the verdict was for the right party, we need not go into these objections except as hereinafter noted. Defendant admits that he was required to furnish by March 1, 1920, an abstract of title showing a good, merchantable title, and claims that he did so. However, the undisputed evidence shows that he had no title at that time, but that the title was in another with whom he had a contract to purchase; that a deed was deposited in escrow which was to be delivered to defendant upon the payment of the balance of the purchase money. There is no showing that defendant ever acquired the tide. The evidence is likewise undisputed that there was a $18,500 mortgage on the land that was never satisfied. Defendant did not place a deed to the land in escrow as agreed. Defendant contends that plaintiff waived the matters hereinbefore mentioned, that it was understood that the mortgage was to be discharged from the money to be paid by plaintiff, and that the parties with whom defendant had a contract for the land would convey it to plaintiff when the latter paid the money, and there is evidence of such waiver. However, no waiver is pleaded is the answer.

The matter that was probably most objected to at the trial was the failure of defendant to get deeds from certain of the King heirs. The facts in this connection show flint Greenberry King, Sr., died in January, 1883, leaving a widow and numerous children, grandchildren and great-grandchildren. At the time of his death he was the record owner of 10 acres of the land sold to plaintiff, situated in an Important position in reference to the whole tract. No deeds were secured from the heirs of said Greenberry King, Sr., except from two of the same, but the abstract showed affidavits that the persons from wham defendant was to get the title and their grantors had adverse possession of the land and paid the taxes for 35 years.

There appears in the abstract an affidavit reciting that the heirs of Greenberry King, Sr., had never made any claim to the property. Adverse possession, even for 35 years, may not bar every person who might make a claim to the property. See Shumate v. Snyder, 140 Mo. 77, 87, 41 S. W. 781; Troll v. St. Louis, 257 Mo. 825, 731, 168 S. W. 167. There were six or eight heirs of Greenberry King, Sr., from whom no deed was procured, and there is no affidavit or other evidence attached to the abstract showing anything relating to the status of these six or eight heirs, except that three of them,...