76 Mo. App. 553 | Mo. Ct. App. | 1898
This is an action by the plaintiff against defendant, a city of the third class, to recover damages occasioned by the action of the latter in changing the grade of certain designated streets in
Snyder v. Murdock, 51 Mo. 175, was where defendant had given his notes for real property and the plaintiff had given bond for title. The carding machine and mill situate on the property were destroyed by fire before the payment of the notes or the making of the deed. In a suit on the notes the defendant pleaded as a defense that the carding machine and mill gave the property great value and were the main inducement to the purchase, etc. In the course of the opinion in the case, it is said that: “After an executory contract for a conveyance of real estate has been entered into by the execution of a bond for title and notes for the purchase
In Walker v. Owen, 79 Mo. loc. cit. 569, the defendant, under a title bond, took possession of the premises. There was on the lot a store house of which defendant took possession, under his contract, and used the same for several months and was so using it when it burned down. It is said by the court, in deciding the case, “that when a vendee thus takes possession of real estate, under a title bond, from the vendor, and the improvements thereon are destroyed, the loss falls on the vendee.” Snyder v. Murdock, 51 Mo. 175. The defendant is not in a position to rescind the sale if he desired, for he can not put the vendor in statu quo by restoring to him the property he obtained from him, See, also, Deland v. Vanstone, 26 Mo. App. 297; Woods v. Straup, 63 Mo. 433; Tatum v. Brooker, 51 Mo. 148.
It has been twice held by the supreme court of Michigan that where persons holding lands under a contract for sale which does not give them any possessory right therein before completion of payment therefor can not, before such payment, maintain an action for damages done to such land, since they are not the owners of the freehold. Moyer v. Scott, 30 Mich, 345; Des Jardins v. Boom Co., 54 N. W. Rep. 718. It does not appear, from the meager statement made in Snyder v. Murdock, supra, whether or not the vendee was put in the actual possession of the propperty, but it may be fairly inferred that such was the fact. That is the way it is to be understood. Walker v. Owen, supra.
It appears, from the contract of sale, that Mrs.
As the ruling just made is decisive of the ease on the merits, it becomes wholly unnecessary to notice the question of the sufficiency of the defense pleaded by the answer and stricken out by the trial court on the motion of the plaintiff.
Judgment reversed.