24 Mo. App. 330 | Mo. Ct. App. | 1887
delivered the opinion of the court.
In view of the errors assigned by the appellant, a full statement of the cause of action, and of the pleadings is essential to an understanding of the points decided.
The action is brought by a vendor of real estate to recover damages from the vendee for breach of the contract of sale. The plaintiff’s action is founded on the' following memorandum, filed with his petition, marked Exhibit A,
“April 10, 1884.
“ Received Of Dr. A. F. Bock, the sum of one hundred dollars, on account of and part purchase money of a lot of ground or parcel of land, being in the county of St. Louis and state of Missouri, to-wit: A parcel of land lying in the southwest corner of northwest quarter of section 6, township 45, north, range 6 east (describing same by metes and bounds), sold for the sum of seventy-five hundred dollars cash : title to be perfect or no sale ; title not perfect, earnest money to be refunded and ex
[Signed] “Julius C. Birge,
“per Fisher & Co., Agents.
“ I agree to the above.
“A. F. Bock.”
The petition itself, which does not embody this memorandum, is substantially to the following effect:
It alleges that the plaintiff agreed to sell and the defendant agreed to purchase the property described for the sum of seventy-five hundred dollars, according to the contract filed therewith ; that the plaintiff tendered a deed therefor to the defendant, which he failed and refused to accept and pay the stipulated price. The petition further set forth the efforts to sell the property afterwards and the sale for sixty-six hundred dollars, and claimed damages for the loss caused thereby and other items, amounting to about fourteen hundred dollars, and asked judgment therefor.
The answer admitted the execution of the contract, but denied the other allegations of the petition.
The answer further set up that the contract called for an examination of the title, and provided that if such examination showed that the plaintiff could not convey' a perfect title there was to be no sale of the premises; that such examination was made by a competent examiner, and it showed that the plaintiff could not make a perfect title, and that thereafter, by reason of such facts, the parties agreed to, rescind the contract of sale, and did rescind it, mutually releasing each other. These facts were pleaded as a bar to the action of the plaintiff.
The reply was a general denial.
Upon the trial the defendant objected to the introduction of any testimony in the case, on the ground that the petition does not state facts sufficient to constitute a cause of action. After the cause was tried and judgment
It will be seen that the petition nowhere avers that the plaintiff had any title whatever to the lands which he contracted to convey. It simply states that he executed and tendered to the defendant a deed to the property, and demanded the purchase money, and that the defendant refused to accept the deed so tendered.
It will further be seen that the answer nowhere admits that the plaintiff had any title. It simply avers that the defendant, by the agreement, reserved the right to have the title examined, and that unless such examination should show the title which the plaintiff was to convey to be perfect, there was to be no sale of the premises. The fact that the answer claims a rescission of the sale by mutual consent, is neither an admission nor denial of the plaintiff5 s title.
The plaintiff contends that in an action at law for damages, for the non-acceptance of property sold, it is not the duty of the plaintiff to allege or prove that he has a good title, but that the want of such title is matter of defence. In view of the state of the record it is, therefore, essential to determine whether the burden of proof in an executory contract of sale rests with the vendor to show that his title is good, or with the vendee to show that it. is not good.
The general proposition is very clearly stated in Dwight v. Cutler (3 Mich. 575, 576), that in every case' for the sale of land, unless the contrary intention is expressed, there is an implied undertaking on the part of the vendor, available in law as well as in equity, while the contract remains executory, to make out a good title
In Philips v. Breck’s Ex'r (79 Ky. 466, 467), which was a suit in equity, but also for the recovery of the purchase money by an executor, the court held that it 'is essential, in a case of this character, for the vendor, or,' if he be dead, for his heirs or devisees, to allege and prove, if not admitted by the terms of the contract, the ¡character of the title to be made, and their ability and willingness to convey. See also Little v. Paddleford (13 N. H. 168). In fact, we know of no exception to the rule, certainly none established by decided cases, that an executory agreement to convey a title to land means the conveyance of a good title, and that the showing of such a title by the vendor is a condition precedent to his recovery.
It will be noticed that the cases of Breithaupt v. Thurman (3 Rich. 220), Pyles v. Reeve (4 Rich. 555), Crawford v. Murphy (22 Pa. St. 84), Denton v. Scully (26 Minn. 36), Dwight v. Cutler (3 Mich. 575), Cantwell v. Mob (43 Ga. 193), Sawyer v. Sledge (55 Ga. 152), Whitehurst v. Boyd (8 Ala. 375), were all cases where the vendee was either in possession of the lands under a contract of sale, and tried to defeat the vendor’s claim
In Allen v. Atkinson (21 Mich. 361), the contract was silent as to the title, and the court laid some stress on that point, while in Baxter v. Aubrey (41 Mich. 13), it held that where the vendee accepts a contract, in winch the vendor’s ownership is assumed, and agrees to pay for the land without requiring the vendor to produce evidence of his title, the burden will be upon him to show defects.
So in Alabama the rule is correctly stated, that the purchaser of land, as long as the contract remains executory, has a right to demand a good title, but after accepting a conveyance the maxim of caveat emptor applies, and he can not, in the absence of fraud or mistake, invoke the relief of equity. Thompson's Adm'r v. Christian, 28 Ala. 399, 406.
In Ashbrough v. Murphy (90 Ill. 182), which case is particularly relied on by the plaintiff, the vendee stated, when a conveyance was tendered him, that he was unable to pay for the land. It does not appear that the question of title was ever raised. The court, in its opinion, states that, had the vendee been ready to perform' •the contract, and objected to the deed because the property was incumbered, the'plaintiff might have been able “to show that the property was free from incumbrances, and the title perfect, but the defendant makes no pretense that he was himself ready to perform the contract. In the case at bar the rescission of the contract is claimed to have been the result of the plaintiff’s inability to show a perfect title, and the question of title was of paramount importance.
The decisions in this state are in harmony with the
W e have gone into the cases at some length, in deference to the earnestness with which the plaintiff’s counsel have pressed the point, that the rule is different in equity from what it is at law, and that the distinction between executory and executed contracts does not apply when the suit is one at law for the recovery of damages arising from the breach of the contract of sale.
It will be thus seen that the rule as to the burden of proof depends, not on the fact whether the action is one at law or in equity, but on the fact whether the contract is executory or executed. It is only in so far as equity deals oftener with executory contracts of this kind, than-courts administering common law remedies, that courts, in the exercise of their equitable jurisdiction, have been-called upon more frequently to emphasize the distinction.
If the rule is as above stated, in regard to actions founded upon executory contracts for the sale of lands, even in cases where the contract of sale specifies no particular title to be conveyed, it must be a fortiori such,, where the contract of the parties expressly specifies, as
As we are of opinion that the burden of proof, as to title, was upon the plaintiff, it necessarily follows that the allegation that the deeds tendered conveyed a perfect title, was an essential averment, without which the petition stated no cause of action. And that the defendant’s demurrer, by objecting to any testimony offered in support of such a petition, or the defendant ’ s motion in arrest, should have been sustained. Frazer v. Roberts, 32 Mo. 457; Jones v. Tuller, 38 Mo. 363; Clinton v. Williams, 53 Mo. 141; International Bank v. Franklin Co., 65 Mo. 110; Staley Furnishing Co. v. Wallace, 21 Mo. App. 130.
The plaintiff, however, further claims that these errors were not prejudicial, because the testimony shows that the plaintiff did have a perfect title, and that the-court so found. This is an action at law, and we are not-called upon, nor have we the power to weigh the evidence, for the purpose of determining whether it establishes the first proposition herein asserted. The second proposition is cléarly untenable. There is nothing in the record
The judgment is reversed and the cause remanded.