110 Mo. 650 | Mo. | 1892
The plaintiff Be Bemardi commenced this suit in ejectment against Klein and McElroy on July 20, 1887, to recover an undivided one-half of about forty acres of land near Kansas City. Klein answered by way of a general denial. McElroy,. besides a general denial, set up an equitable defense-praying for affirmative relief. After all the evidence had been introduced, he filed, against the objections of the plaintiff, a third defense, setting up an alleged estoppel. The trial court found for the defendants and gave McElroy the affirmative relief prayed for.
The evidence discloses the following facts: Thomas-F. Maxwell acquired the forty acres under partition
By this bond, hereafter called the agreement of 1875, Maxwell as party of the first part agreed “to furnish and deliver to said party of the second part {De Bernardi) within ten days from the date hereof a good and sufficient warranty deed and the proper and sufficient evidence of a perfect title’ to the following described real estate.” Then follows a description of the land, the undivided half of which was conveyed by the deed of 1869 and three acres additional thereto. The contract concludes: “And said first party further agrees to deliver the possession of said property to the said second party from the date thereof, and further agrees that all contracts and agreements entered into between said first party and said second party previous to the date of this instrument, concerning and relating to said above-described property, and all notes promissory, shall from the date of this instrument be void and of none effect, and shall be substituted by this settlement
“And the said second party, in consideration of the promises and agreements hereinbefore made by the said party of the first part, and of the premises, agrees, upon the furnishing to him by the said first party the evidence of perfect title and the deed as hereinbefore set forth, to pay down in cash to said first party the sum of two hundred and ninety-five dollars ($295), and to execute and deliver to him his four promissory notes for $300 each — in all $1,200 — to bear interest from date at the rate of eight per cent, per annum, the interest to be paid annually, and said notes to become due in five years from the date thereof; that is, to pay in five years from the delivery of said notes as herein provided for — -each of said notes to be secured on a specific part of said real estate, the intention being that when any one of said notes is paid off a specific proportion of said land shall be relieved of all incumbrance.”
The interest of Thomas F. Maxwell was sold at a sheriff’s sale and purchased by Symington who conveyed the same to Matilda Maxwell, the mother of Thomas F. Maxwell. She at all times held the title for the use and benefit of her son Thomas. At the request of Thomas, she conveyed the forty acres to the defendant McElroy on June 20, 1880, for the consideration of $1,500 paid to Thomas.
The plaintiff, as has been said, left the premises in the sole possession of Thomas F. Maxwell in 1872.
The law is well settled that where one goes into possession under a contract of purchase, and then makes default in the payment of the purchase price, he maybe turned out by the vendor in an action of ejectment. And in such an action the vendee can only defend his possession by showing performance of the contract on his part. Gibbs v. Sullens, 48 Mo. 237; Fulkerson v. Brownlee, 69 Mo. 371; Rose v. Perkins, 98 Mo. 253. If Maxwell had placed the plaintiff in possession, he could now turn him out by ejectment. The plaintiff being in default, it must follow that he cannot recover possession of the land. Even where the contract is silent as to possession, the vendee is not entitled to it until he has performed all the conditions which entitle him to a deed from the vendor. Burnett v. Caldwell, 9 Wall. 290; Erwin v. Olmstead, 7 Cowen, 229; Holmes v. Schofield, 4 Black, 171.
The fact that this agreement of 1875 did not reconvey the undivided half to Maxwell is wholly immaterial. That agreement amounts to a solemn, assertion on the part of both Maxwell and De Bernardi that Maxwell was the owner of the entire property. De Bernardi cannot be heard to say he is the owner of' a half interest. His bond estops him from setting up any such a claim in opposition to Maxwell and his grantees. The estoppel accomplishes all that a reconveyance could accomplish. De Bernardi being in default in the performance of that contract has not a shadow of right to recover in this action. The judgment in the ejectment branch of the case is for the right party on the unquestioned evidence.
This decree of title has nothing upon which to stand save the finding for defendant on the statute of limitations, and, if not supported by that finding, it cannot stand at all. As has been before stated, the position of Maxwell and the plaintiff was that of vendor and vendee under an executory contract, the vendor being in possession. Plaintiff as vendee in that agreement acquired an equitable interest in the property; for in equity the vendor holds the title in trust for the vendee.
There was a vast amount of evidence produced on this issue of ten years’ adverse possession, which need not be detailed as we understand the case. The defendant does not claim that this equitable title created by the agreement or title bond of 1875 is cut off by limitation. This is shown by the prayer for affirm
We are at a loss to see how the statute of limitations can run against the deed and not against the contract — against the seeming legal title in the plaintiff' and not against the conceded equitable title in him. There must be an intent to claim the land, to put the statute of limitations in operation, and the claim to be of any avail must be to the entire title, not simply to a part of it. Bedell v. Shaw, 59 N. Y. 49; Davenport v. Sebring, 52 Iowa, 367.
We held in Gardner v. Terry, 99 Mo. 523, that one in possession of land who had acquired title as against a deed of trust in the nature of a mortgage could maintain a suit to remove the deed of trust as a cloud •on his title; that a title acquired by the statute of limitations could be relieved from a cloud cast thereon by a recorded instrument the same as a title acquired in any other way; and this ruling is not peculiar to this court. Arrington v. Liscom, 34 Cal. 365; Alexander v. Pendleton, 8 Cranch, 462. But the difficulty here is that we are unable to see how the statute of limitations can be made to run against the deed of 1869, and not .against the contract of 1875. If the statute constitutes any bar, it must be a bar to any and all interests which the plaintiff had in the land.
It is not necessary to consider the third defense •setting up an estoppel, for it was not designed to furnish ■a ground for affirmative relief. The appellant has made and discussed many other questions in his brief, but it must be apparent that they need not be considered.