207 Mo. App. 115 | Mo. Ct. App. | 1921
The First National Bank of Adrian, Missouri, filed its hill of interpleader in the court below alleging that it held the sum of $1,000 which had been deposited with it under a contract had between David Dalton and B. W. Cauthon; that the contract had not been consummated; that both parties claimed'the money; that the bank did not know to whom it belonged and asked that it be allowed to pay the same into court and that said persons be required to interplead for it. The money was then paid into court. Thereupon, B. W. Cauthon filed an interplea setting forth that on or about September 8, 1919, he and David Dalton entered into a written contract whereby he sold said Dalton a certain tract of land in Cass County, Missouri; that at the time of the signing of said contract said Dalton deposited with said bank said sum of $1,000 in part consideration of said sale; that under the terms of said contract said sum of money was due said interpleader. Said interpleader then alleged—
“This interpleader further states that said contract provided for the furnishing of an abstract of title, which this interpleader furnished to the said Dalton, and the same was accepted and the title approved by the said Dalton, but thereafter the said Dalton failed and refused to comply with his contract and consummate the purchase of said land, and so notified this interpleader.”
It was further alleged by said interpleader that under the provisions of said contract said $1,000 should be forfeited in case the buyer failed to comply with the contract, and that said interpleader having complied with all the terms of said contract on his part was entitled to said sum of $1,000.
Interpleader Dalton filed his interplea alleging that he was at all times ready, willing and able to comply with the terms of said contract; that said Cauthon refused to comply with his part of the contract, having failed to furnish said interpleader within thirty days from the date of the contract a satisfactory abstract of title to the property, and failed to furnish said interpleader evi
The facts show that on the 8th day of September, 1919, Dalton and Cauthon entered into a written contract, which was drawn by one L. R. Allen, cashier of the First National Bank of Adrian, wherein Cauthon agreed to convey to Dalton certain, land described by sections and as ££ containing in all 292 acres, more or less, except the right of way of ditches of the Grand River Drainage District at and for the price and sum of $36,500.” $1,000 of the purchase price was to be deposited by Dalton with the First National Bank of Adrian, the balance to be paid on or before March 1, 1920, as follows: $10,000 in cash <£and deferred payment by note, secured by trust deed on said land, which is to be a first lien on said land.” Dalton agreed to pay the drainage assessments due after the 1st day of March, 1920. Cauthon agreed to furnish within thirty days a satisfactory abstract of title and such evidence as might be required by the buyer as to the non-existence of judgments, mechanic liens and taxes up to the 1st day of March, 1920. The contract further provided that if on examination it was found that the seller had a good
- In accordance with the contract Dalton deposited $1,000 with the First National Bank of Adrian. Cauthon had his abstracts certified to September 18, 1919, which certificate also included the statement that there were no judgments, mechanic liens or taxes except a deed of trust for $11,000. The abstracts were turned over to Dalton and the latter turned them over to his attorney, Judge Silvers, for examination. The examination was completed on September 23, 1919. Judge Silvers raises several points, of objection in reference to the title. The abstracts and his opinion were then turned over by Dalton to Cauthon who immediately took them to his attorney, Judge Crouch. The latter on October 4, 1919, wrote a letter attempting to .answer the objections raised, by Judge Silvers, stating to Cauthon that he had a good merchantable title and that the same was shown by said abstracts. Cauthon returned the abstracts and letter to Dalton who took them and deposited • them in a bank at Archie where they remained until March 3, 1920, when Cauthon secured them.
We think there is no question but that the great weight of the evidence shows that Dalton accepted the title in October, 1919, without further procedure. Cauthon testified that when he received the abstracts and
Cauthon further testified that during the last week of January, 1920, while Dalton was still upon the farm, the latter raised the first objection to the title made after the delivery of Judge Silvers’ opinion. He then stated to Cauthon that there was'a judgment for $2300 against the property. Cauthon explained to him thaf there was no judgment against the property, that this amount represented drainage assessments and advised him to go to TIarrisonville, the county seat, and look the matter up. Dalton .told Cauthon in January or Eebruary that if the
Canthon further testified that Dalton notified him prior to the first day of March, 1920, that he was not going to take the farm; that on March 1, 1920, he went to the bank at Adrian about eleven o’clock in the morning, that he saw Dalton there but'did not talk to him, about business; that he remained there until about 3:30 and that he told Mr. Allen, the cashier of the bank, that if Dalton wanted to settle according to the contract to call him (Oauthon) at Archie, a near-by town. The note and deed of trust for $11,000 against'the property was at the bank at Archie. The evidence shows that Cauthon could have paid it off on that day; that he had the money wherewith to pay and that the holders would have permitted such payment. Cauthon and Dalton both testified that it was understood between them that the $10,000 to be paid by Dalton on March 1, 1920, might be used by Cauthon to discharge this indebtedness. (That sum and the $1,000 deposit would make up the $11,000 indebtedness against-the land.) Cauthon told Allen that if Dalton desired to settle according to the contract to call him at Archie and he would bring the note for the $11,000. When Cauthon saw Dalton at Adrian he told him that Allen would represent him in settling the deal. He testified that he went to Adrian knowing that Dalton would not take the place under the terms of the contract. He admitted that he did not have at Adrian the abstract nor the note and deed of trust for the $11,000 on the place. Dalton had the abstract at the bank at Archie and did not produce it on March 1st. He testified that Dalton made no demand upon him on that day for further evidence as to the non-existence of mortgages, judgments, etc.
L. R. Allen, cashier of the First National Bank of Adrian, a witness for interpleader Dalton, testified that
It was admitted that R. Gr. Wilson, who was assistant cashier of the bank at Adrian, if present would testify for interpleader Cauthon that he was present at the bank in October, 1919, when Cauthon asked Dalton, “Do you accept this abstract” and that Dalton replied, “Yes, I do, didn’t I tell you so;” that at that time Dalton asked that the deed be turned over to him and the $1,000 given to Cauthon, that Dalton said to Allen, cashier of the bank, sometime in February, 1920, that he could-not settle according to the contract, that there was a judgment against the land in the sum of $2300 arising out of the drainage district.
It was shown that the abstract was extended and certified to May 2, 1920; that it then showed payment of all taxes for the year 3919 and that there was no judgment against Cauthon or a lien against the land other than the $13,000 deed of trust.
This is a suit in equity and as such we are required to weigh the evidence and come to our own conclusions in resnect to the same. [Robards v. Clayton, 49 Mo. App. 608, 610.] We think that the great preponderance of the evidence discloses the following facts: That Dalton, after receiving the opinions written by Judge Silvers and Judge Crouch and after having been told by the former that Cauthon had a good title to the land and that nobody could take it from Dalton if he accepted it, and after reading Judge Crouch’s letter in which the latter stated that Cauthon had a good merchantable title and assumed to answer the various objections made by Judge Silvers, saying that they were minor objections, was satisfied with the title and was willing to accept the deed in October, 1919; that between that time and January, 1929, something occurred to cause Dalton to change his mind in reference to taking the land. This may have been because he discovered the things that caused him to
In reference to the claim that no abstract was furnished for the 80 acres: There was' an abstract to the 80 acres furnished but it was not all in one piece. One part of the abstract was incomplete as to form but the same deeds included in this abstract were included in the abstract to other parts of the land, and the contract did not require the furnishing of a separate abstract to each tract. Of course, Dalton knew of this alleged objection when he accepted the titfe in October, 1919. As to the claim that Cauthon had contracted to convey to him 6.34 acres of land in the right of way of the drainage district: The evidence shows that the property was described in the contract by- sections and as containing 292 acres “more or less” and the right of way of the drainage district was specifically excepted. The property was not conveyed at so much per acre but for the price and sum of $36,500 so' that the tract embraced in the contract was sold for the aggregate amount of $36,500 and not at the rate of $125 per acre. [Boxley v. Stevens, 31 Mo. 201.] However, the evidence shows that Dalton had a surveyor survey the land and it was found to contain more than 300 acres but Dalton did not put this surveyor on the stand. Dalton’s objection in reference to this matter was clearly without foundation.
There were findings and declarations requested of the court by Cauthon. The chancellor- found that Cauthon furnished an abstract showing good title to the land
This is an equity case and the findings of facts by the chancellor are not binding upon us but are advisory only . They advise us as to the theory on which the court tried the case. Prom the findings made and refused by the chancellor it seems evident that he found that Cauthon did not comply with his part of the contract by making tender on March 1, 1920, and the chancellor must have found that Cauthon waived performance on the part of Dalton on that day, for assuredly Dalton did not tender performance^ on his part. We think the learned chancellor erred in his conclusions. There was no necessity of a tender of performance on the part of Cauthon on March 1, 1920, assuming that the facts show that he did not tender performance on that day. The evidence shows
Interpleader Dalton insists. that Cauthon bound himself by the contract to furnish a satisfactory abstract of title within thirty days from the date of the contract and to furnish evidence as might be required of the buyer as to the non-existence of judgments, mechanic liens and taxes against the property up to the first day of. March, 1920, and that the record title appearing to be defective as set out by Judge Silvers ’' opinion, it was Cauthon’s duty to clear up the defects by March 1, 1920. The evidence shows that the matter of Judge Silvers’
The act of Dalton in October, 1918, in requesting a deed constituted an approval and acceptance of the evidence of title since by the terms of the contract the deed was not to be executed until the title was found to be good. However, there is no question from the evidence but that Dalton accepted title to the property at .that time and never thereafter raised any objection to it except as to the matter of the alleged judgment, the abstract to the 80 acres, and the 6.34 acres of land in the drainage ditch the title to which he claimed he had the right to require conveyed to him. As we have already said there was no merit in these later objections and by his conduct in October Dalton led Cauthon to believe that the other requirements of Judge Silvers were not to be insisted upon. Cauthon was therefore at all times ready and able to fulfill his part of the contract ■ but tender of compliance on his part was waived on the part of Dalton when the latter notified Cauthon prior to March 1st that he refused to proceed with his part of the agreement.
As to the contention that Cauthon did not furnish an abstract showing evidence of the non-existence of judgments, mechanic liens and taxes against the property on March 1, 1920, the contract provided only that “such evidence as may be required by the buyer” should be
The judgment is reversed and the cause remanded with directions to enter judgment in favor of inter-pleader Cauthon.