204 S.W. 1115 | Mo. Ct. App. | 1918
On the 9th day of August, 1915, plaintiff and one Paris W. Lindsay entered into a contract wherein the former agreed to sell to the latter, for the price and sum of eighteen thousand ($18,000) dollars, real estate located in Kansas City, Missouri. *675
The property was to be conveyed subject to a deed of trust securing thirteen thousand ($13,000) dollars, which the buyer agreed to assume as a part of the purchase price, and the balance, five thousand ($5,000) dollars, the buyer agreed to pay in cash. The seller agreed to furnish within ten days from the date of the contract, at the office of this defendant, a complete abstract of title to the property and the buyer was to have ten days thereafter for examination of the abstract and to report in writing to the seller any defect in the title. If the title was defective the seller agreed to have the same rectified within a reasonable time, not to exceed sixty days from the date of the written notice thereof, and if the seller had a good title to the property, or within the time specified for that purpose remedied any defect therein and thereby made such title good, he was to deliver to the purchaser or to his order a good and sufficient warranty deed conveying the property. The contract recited that the purchaser had paid as earnest money five hundred ($500) dollars, to be applied upon the purchase price of the property, which had been deposited with this defendant. The contract further provided that upon delivery of the deed or tender thereof, if the purchaser failed to comply promptly with the terms of the contract by not paying the remainder of the purchase price, the earnest money deposited should be forfeited by the purchaser and upon such forfeiture the contract should in other respects become null and void at the option of the seller.
The seller delivered his abstract of title. The buyer found two objections to the title that are now insisted upon as valid ones. The seller thereafter claimed that he had met these objections and showed a good title and demanded that the buyer consummate the deal. (Plaintiff tendering the deed.) The buyer refused and this suit was brought by the seller against this defendant, who was the stakeholder of said earnest money of five hundred ($500) dollars, for that sum, plaintiff claiming that by his contract the purchaser *676 had refused to take the property which he was under obligation to do. The case was tried without the aid of a jury. Judgment was rendered in favor of the plaintiff and defendant has appealed.
The first objection made to the title was based upon the following facts: On March 9, 1880, Eliza J. Stall was the owner of the property and on that day she and her husband conveyed it to Abbie M. Winner by a warranty deed. The acknowledgment taken upon the same day by a notary public recited that Eliza J. Stall and Cyrus G. Stall, her husband, acknowledged the deed as their voluntary act, "and the said Eliza J. Stall, being by me first made acquainted with the contents of said instrument, upon an examination separate and apart from her husband, acknowledged that she executed the same and relinquished her dower in the real estate therein mentioned, fully, without fear, compulsion or undue influence of her said husband."
It is defendant's contention that by reason of that part of the acknowledgment above quoted the deed was not effectual to convey the fee in the land, citing Hendricks v. Musgrove,
The acknowledgment itself is not set out in the opinion and we have only to look to the language used by the court as a guide to what its terms were. The court says that her acknowledgment was "only as wife" and that it was confined to a release of her dower and did not embrace an ownership of the land. The conclusion that such an acknowledgment to a deed of the wife's fee was not sufficient is manifestly correct. If we interpret that acknowledgment as desired by defendant in this case, it would be in direct conflict with a line of decisions which long ago became a rule of property in this State. In McDaniel v. Priest,
But in Chauvin v. Wagner,
In 1854 Delasus v. Poston,
In 1855, in Perkins v. Carter,
In 1856, in Chauvin v. Lownes,
In 1873, in Miller v. Powell,
Again in 1874, in Siemers v. Kleeburg,
In 1879, in Thornton v. National Exchange Bank,
In 1883, in Burnett v. BcCluey,
The last case where the question appears in Hauser v. Murray,
In all those cases, as in the one now before us, the acknowledgment may be said to be in a double form; first, an acknowledgment of the deed, and second, a release of dower. In those cases it is said, in effect, that where the wife owned the fee that that part of the acknowledgment relating to dower did not annul or affect the part acknowledging the execution of the deed and that it was merely surplusage.
The foregoing considerations lead to the conclusion that the acknowledgment to the deed involved in the present case, is valid, and that the abstract showed a good conveyance in fee of the property from Eliza J. Stall and Cyrus G. Stall, her husband, to Abbie M. Winner.
The other objection urged against the title is founded upon the fact that there was a deed of trust on the property dated April 16, 1877, which secured a note in the sum of two thousand ($2,000) dollars with ten per cent. (10%) interest, reciting, "This day due to Richard and John Saunders." On the margin of the record where this deed of trust was recorded appeared the following, "This deed of trust is satisfied in full, both principal and interest. Witness our hands and seals this 1st day of February, A. D. 1879. Richard and John Saunders, by John Saunders."
It is defendant's contention that there was no authority shown by John Saunders to release the note on behalf of Richard Saunders. When this objection was made by the buyer the seller within the time specified furnished the buyer with the affidavit of a son of Richard Saunders, who swore that at the times the note was given and released Richard and John *680 Saunders were brothers and partners in the hotel and banking business; that they were the owners of said note as partners at the time it was executed and until it was paid, and the property released; that both John and Richard Saunders were dead and that their estates were settled. Of course, under the circumstances, John Saunders had authority to release the note on behalf of the partners. We think that the furnishing of this affidavit removed the defect in the title appearing in the abstract and was sufficient to satisfy defendant that no defect in fact existed, especially in view of the fact that the note had been due for more than thirty-five years at the time of the execution of this contract.
It is said in Ranck v. Wickwire,
We are not unmindful of the fact that the contract provided that the abstract of record should show a good title, and ordinarily, unless the abstract so show, the contract is not complied with. [Austin v. Shipman,
Defendant contends that plaintiff is not entitled to recover the five hundred ($500) dollars placed in defendant's hands as earnest money, for the reason that plaintiff did not attempt to offer testimony as to what damage he suffered by reason of the buyer refusing to take the property and that the money placed in defendant's hands must be regarded as a penalty and not as liquidated damages. We are unable to agree with this contention. The damages to be ascertained by the buyer's refusal to take the property was uncertain in amount and the parties conveying having mutually agreed that a certain sum should be the damages in case of failure to perform, in language expressive of such agreement, there is no law to justify the courts in giving the contract a different construction, or in saying that the parties meant some- *682
thing else. The parties themselves agreed upon what would be the damages in case the buyer refused to take the property. This was five hundred ($500) dollars. The purchase price of the land was eighteen thousand ($18,000) dollars, of which five thousand ($5000) dollars was cash. Plaintiff also unburdened humself of paying, primarily, a thirteen thousand ($13,000) dollar deed of trust. We cannot say that the damages agreed upon assumed the character of gross extravagance or of wanton and unreasonable disproportion to the nature and extent of the loss. [Morse v. Rathburn,
The judgment is affirmed. All concur.
*313