| Mo. Ct. App. | Apr 24, 1888
delivered the opinion of the court.
The plaintiffs preferred a demand in the probate court of the city of St. Louis against the estate of John A. Wolfinger, deceased, one of the items of which was as follows : “Dr. To this sum, agreed on as per lease herewith shown, as the price of lot on Second street in block 50, payable September 1, 1887, seventeen hundred and sixty dollars ( $1,760).”
The probate court disallowed this demand; the plaintiffs appealed to the circuit court, where it was again disallowed, and they now appeal to this court. An agreed statement of the facts shows that the plaintiffs leased to Wolfinger in his lifetime the lot of ground described in the above item, the term beginning September 1, 1884, and ending August 31, 1887. Wolfinger covenanted to pay rent at the rate of $105.60 per annum, and to pay the taxes for the year 1885 and for each year thereafter. The lease also contained the following covenants : ‘' And the party of the second part [ Wolfinger ] covenants that he will, during said term, or at the end thereof, purchase said demised premises at and for the sum of seventeen hundred and sixty dollars ; and parties of the first part [ these plaintiffs ] will thereupon convey the same to him in fee-simple.” Wolfinger was let into possession under the lease and remained in possession at the date of his death, which took place on January 1, 1887. After his death his executor took possession of the property under an order of the probate court, and was in possession at the date of the hearing in the circuit court. Wolfinger died leaving a will by which he devised this property to Mechin, his executor, in trust for the separate use of his daughter, Margaret Steber, a married woman.
This statement of facts seems to end the inquiry without the necessity of saying much upon the question
I. The plaintiffs do not tender a deed of conveyance in pursuance of the terms of the contract. They, therefore, stand in the position of seeking performance of an executory contract to purchase land, at the hands of the personal representative of the vendee, without tendering performance of the contract on their part. This cannot be done. The only authority to which we have been cited in favor of. the proposition that it can be done is an old Year-Book case (Y.-B. 18 Edw. IV., pl. 6; Fulbeck, 29a. pl. 11) where it is said : “So if a man sell ten acres of land to another for ten pounds, and after he will make no assurance of the land, yet he may maintain an action of dette for the money, and the other is put to his action on the case.” Unfortunately for this venerable dictum, which allows one party to a contract, while refusing to perform it on his part, to maintain an action at law against the other party for the non-performance of it, it is not the modern law, at least in Missouri. Modern conceptions of justice are satisfied with allowing a vendor to sue for the purchase money after he has either performed or tendered performance of the contract on his part, and not before. In this state a vendor of land cannot recover the purchase price without first tendering a deed. Pershing v. Canfield, 70 Mo. 140; Olmstead v. Smith, 87 Mo. 602" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/olmstead-v-smith-8008547?utm_source=webapp" opinion_id="8008547">87 Mo. 602, 606. Said the Supreme Court in the last case: “When, in a sale of land, the promise to pay the price, and the promise to convey by deed are mutual and dependent covenants, we recognize to the fullest extent the doctrine that, in a suit brought by the vendor to recover the purchase price, he must either offer to convey or tender a deed, so that the vendee, on payment of the price, can lay his hands on the deed as his.” If, therefore, Wolfinger had been alive, the plaintiffs could not have maintained an action against him for the purchase price of the land agreed to be conveyed, without tendering to him a deed ; and this principle would not be altered by the fact of his remaining in possession of
An ingenious attempt is made to argue this principle away, by suggesting that, under the contract of sale, the executor of Wolfinger has an equitable title. There are two obvious answers to this : (1) That this matter concerns land and not personal assets, and in respect of land an executor does not stand in the shoes of his testator; (2) that Wolfinger contracted for a legal, and not for an equitable title. What is an equitable title in such a case % It is the mere right to go into a court of equity and compel the vendor to make a legal title. But Wolfinger contracted for a deed in fee-simple, and not for a law suit.
II. The foregoing considerations are sufficient to dispose of the question, unless the plaintiff ’ s position has been made better by the death of Wolfinger than it would have been if he had lived. But the contrary seems to be the case. This land has been “devised” within the meaning of section 138, Revised Statutes. This and other adjacent sections of the administration law define powers of the probate court in dealing with such a case as this, and by defining those powers, necessarily exclude by implication the possession of any other or larger powers. Section 138 reads as follows: “If any person die, having purchased real estate, and shall not have completed the payment, nor devised such estate,. nor provided for the payment by will, and the completion of such payment would be beneficial to the estate and not injurious to creditors, the executor or administrator, by order of the court, may complete such payment out of the assets in his hands, and such estate • shall be disposed of as other real estate.’ ’ Section 139 provides: “If the court believe that, after the payment of debts, there will not be sufficient assets to pay for such real estate, the court may order the executor or administrator to sell all the right, title, and interest of
These sections do not apply to this case, for two reasons: (1) Here the real estate has been “devised,” so that this case is excluded from the terms of the statute ; (2) to use the language of our Supreme Court: “This section (Rev. Stat., sec. 138) contemplates something more than the mere allowance of an account to pass the title and complete the contract. The executor or administrator can use the assets to complete the payment by order of the court: but before the court can make the order, it must examine into the affairs and condition of the estate, and determine whether it will be beneficial to the estate, or injurious to creditors. A judicial determination of all the facts is necessary, before the order can be made or the subject passed upon.” Lake v. Meier, 42 Mo. 389" court="Mo." date_filed="1868-03-15" href="https://app.midpage.ai/document/lake-v-meier-8002401?utm_source=webapp" opinion_id="8002401">42 Mo. 389, 391. Even if this were otherwise a case within the statute, the judgment disallowing the claim would have to be affirmed, because it is not claimed that the examination required by the statute was made, nor do the plaintiffs solicit such an examination.
It is not questioned that the probate court has no equitable jurisdiction except such as is conferred by the terms of the statute, and a portion of the argument of the appellants has been directed to the proposition that this proceeding is not in the nature of a suit in equity by a vendor against his vendee for specific performance. It seems unnecessary to consider whether such is the nature of the proceeding or not, or whether it could proceed on any theory without making Mrs. Steber and her husband parties defendant; since the reasons already given are sufficient to dispose of the case.
Judge Rombauer concurring, the judgment of the circuit court will be affirmed.