17 Mo. 394 | Mo. | 1853
delivered the opinion of the court.
Anthony filed his bill in chancery for the purpose of obtain-. ing the title to a lot in the town of St. Joseph, in Buchanan county. The case appears to be this. One Kennedy, the owner of the lot, on the 31st January, 1845,.obtained from Rogers and McCauley, the sum of $541 74, and on that day, executed an absolute conveyance of the property to them. On the same day, they executed a title bond binding themselves to convey the property to Kennedy, if he would pay to them the sum of $591 74 on or before the first day of February, 1846.
The tender in this ease having been made, according to the letter of the contract, Kennedy had an interest in the property which could be sold, and which complainant acquired at the sheriff’s sale. No objection is made to the proceeding in which the complainant acquired the title, and we are to take him as invested with Kennedy’s right.
In the answer of Rogers, the efficacy of the tender is denied, because, as it is alleged, Kennedy had borrowed the money or a part of it, upon a promise to return it immediately, calculating upon the improbability that Rogers would be able to comply with the terms of the bond, by giving a conveyance in the name of Rogers and McCauley. This, however, is no sufficient objection to the tender, for he could have tested it by an Offer of immediate compliance with the terms of the bond, if he
Upon the whole case, it is the opinion of the court, that the complainant is entitled to have the title to the lot vested in him, upon his paying the amount of the purchase money mentioned in the title bond, with interest thereon, deducting therefrom the clear net income received by defendants from the property since they came into the possession of it. The defendants to be entitled to the cost of any permanent improvement they may have erected upon the lot. The net income received by defendants to be ascertained by deducting from the gross receipts all expenses in repairs and in taxes, &c.
The decree of the Circuit Court is reversed and the cause is remanded, with directions to that court to cause an account to be taken of the rents and profits, and of the expenses which are to be deducted therefrom; and also of the value of the permanent lasting improvements upon the property, which is to be deducted from the amount of rents and profits. The sum thus ascertained to be the balance in the hands of the defendants, arising from the possession of the property, is to be taken from the amount of principal and interest of the purchase money mentioned in the title bond ; and upon the payment of the balance of such purchase money and interest, the title to the property shall be passed by the decree of the court and vested in the complainant.