202 Mo. 471 | Mo. | 1907
Plaintiff lodged a bill in equity in the Platte Circuit Court to enforce specific performance of an alleged contract of purchase of 1.97 acres of land (more or less) being part of the southwest quarter of section 12, township 54, range 37, in Platte county, described in the bill with particularity in
Attending to the pleadings, the amended bill proceeds on the theory that defendant Mary A. 0. Pease was the owner in her own exclusive and separate right of Tract A, an irregular parcel of land on the shores of Bean Lake, a body of water in said Platte county (the description of Tract A, being diffuse, and technical, need not be set forth, but appears correctly in plaintiff’s amended bill); that her codefendant, Charles S. Pease, is her husband; that there was excepted out of Tract A a certain indefinite right described in the bill as “a right to use, occupy and enjoy a water front along the water line on the east side of Bean Lake as conveyed by "William Osborne to John Savage by deed recorded in book 21, page 278, of 'the records in the recorder’s office of Platte county;” that said Mary was the granddaughter of Colonel William Osborne and that during her coverture Colonel Osborne conveyed Tract A, together with a very large body of land, to Mary by a deed of April 6,1894, duly of record; that said deed was a gift of inheritance in lieu of a devise by will; that defendant W. 0. Park was Mary’s duly accredited agent, authorized in writing, “to look after, rent, care for, sell and otherwise attend to Tract A” and said larger body of land; that on February 26, 1898, through said Park as agent, in consideration of $200, she sold said Tract A to plaintiff and delivered possession thereof to him, and he thereupon made valuable improvements; that a deed to Tract A was made by Park, but the same was insufficient to convey the legal title to plaintiff, but that Park, as agent, transmitted the consideration to his principal, Mary, which was by her received with full knowledge that it was the purchase price of'Tract A and she thereupon ratified and confirmed the act of
Defendant Park failed to answer, and it is: not clear why he was made a party.
Defendants Rees, Rose and Meyers were brought into the case by an amended bill — their deeds having been executed after the original bill was filed.
Mary A. 0. Pease answered by way of general denial. Further she specifically denied that her codefendant Park had any authority in writing to sell Tract A or any other land for her; and she avers that
Defendants Charles S. Pease, Rees, Rose and Meyers answered tendering the general issue, except said Pease admits being the husband of Mary.
The reply denied new matter and reaffirmed the allegations of plaintiff’s amended bill that Mary accepted the consideration with full knowledge of all the facts relating to the purchase and kept the same until the institution of this suit, to-wit: for about two years, during which time plaintiff in good faith made valuable improvements on Tract A, because of all which, plaintiff says, Mary is estopped to allege a want of a written contract.
A surveyor’s map used at the trial will serve in understanding the facts. The tract marked on that map, “W. H. Kirkpatrick,” bisected by a line showing the shore line of Bean Lake in 1840' (as we grasp it) is Tract A. In Tract A and north of the platted road • and some distance away from the present water line of Bean Lake is the “boathouse,” which figures extensively in the trial. Farther to the east and across a wheat field is a tract marked, “Annie Stephens,” which also figured at the trial and will hereafter be designated as “Tract B” — the privilege for said boathouse being appurtenant to Tract B.
Said map was produced in this court as a blue print, and is as follows:
First, was there a binding contract made between plaintiff and Mary A. 0. Pease?
Second, if there was any infirmity in the authority of Park to make the contract, was there such ratification by Mrs. Pease as relates back and binds her?
Third, if a contract was made, or ratified, was it so definite and certain as to be susceptible of specific enforcement?
Fourth, did Mary A. 0. Pease own Tract A, i. e., was her title such as made the contract, if one was made or ratified, susceptible of specific performance?
Fifth, did defendants Rees and Rose purchase with notice of plaintiff’s equities, if any? And does defendant Meyers now hold under a conveyance subject to such equities?
Sixth, specific performance being directed to1 the sound discretion of the chancellor, should it be withheld in this case?
The facts essential to the consideration of these questions will appear in the opinion.
* I. The first and second questions may be considered together. Attending to them paintiff’s learned counsel concede there was no valid conveyance by Mrs. Pease to plaintiff, but they contend there was written authority from Mrs. Pease authorizing Park to make a contract; and, further, that the legal effect of what was done by him. was to make such contract and they rely on ratification. Defendant’s learned counsel argue contra. The facts uncovered below on these phases of the case are contained in a long record and cover many writings and matters of detail. Summarized, they are as follows: Park was a banker in Atchison, Kansas, and a relative of Mary. A. 0. Pease. Bean Lake lies on this side of the Missouri river and southeast of Atchison, in Platte county in this State.
The record shows that in March, 1898, Kirkpatrick was put in possession of Tract A by Park, except of the boathouse and a small inclosure there, and Mrs. Pease knew of this, that he substantially fenced it and built stabling thereon, and, barring the boathouse, was in possession at the date of the trial.
The foregoing record justifies the following observations :
(a) It will be seen that the original authority in Park to sell to Kirkpatrick is traced back to a letter. This letter was not signed by Mrs. Pease, but by her
Section 3418, Revised Statutes 1899, reads: “No action shall be brought .... upon any contract made for the sale of lands .... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract. ’ ’ Now, Charles S. Pease held no written authority from Mary; hence, authority from him to Park to sell Mary’s land was not authority in writing from Mary. So’ that, conceding an agent could be clothed with authority by letter, and conceding, moreover, that authority might be spelled out of several letters in a correspondence (Peycke Bros. v. Ahrens, 98 Mo. App. 456, and authorities cited), yet the facts at bar bring this case within the mischief struck at by the foregoing statute, and we cannot hold that Park originally had lawful authority to sell the land of Mary Pease to Kirkpatrick. And this is so, although Park acted in good faith, undér a misapprehension of his power.
A case might arise where there was an infirm power based on authority such as the foregoing, where, with the knowledge and acquiescence of the owner of the land, improvements were made by the purchaser and he so materially changed his situation that an equitable estoppel would be created, and an owner who had refused to speak “when in conscience he should have spoken,” would not be allowed to speak, “when in conscience he ought not” to deny written authority. But the facts in this case do not warrant the application of any such doctrine.
(b) Notwithstanding Mrs. Pease gave no written
A married woman, as our statutes now run, is clothed with the right to sell lands held by her in her own' separate right as her own separate property. [Farmers Exchange Bank v. Hageluken, 165 Mo. 443; R. S. 1899, secs. 4335, 4340.] She may make a deed thereto as a feme sole; hence, she may give authority to an agent to contract a sale, and it follows that she may ratify the act of her agent. The ratification of an act, done by one assuming to be an agent, relates back, and is equivalent to a prior authority. [Story on Agency (9 Ed.), sec. 242; Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. l. c. 232.] The authority to contract a sale of real estate must be in writing; therefore (it is held), the ratification must be in writing, where ratification is relied on to make a binding contract. [Hawkins v. McGroarty, 110 Mo. 546; Mechem on Agency, sec. 136; Johnson v. Fecht, 185 Mo. l. c. 345, et seq.]
No one (sui juris) may, with full knowledge of the facts, receive and appropriate to his own use without objection the purchase price of land, sold by one assuming to act in his behalf as Ms agent, as Mrs. Pease did here, without such receipt and appropriation amounting to a ratification. [Mechem on Agency, sec. 149, and cases cited in note 2.] And, having once ratified the act, it is axiomatic that such ratification may not be recalled. .
III. Did Mrs. Pease own Tract A — i. e., was her title such as made the ratified contract susceptible of specific performance ? In considering this question regard must be had to certain record facts to be presently uncovered, to-wit: In 1891, some three years prior to his conveyance to Mrs. Pease, Colonel Osborne conveyed Tract B to one John Savage. It is assumed in the record that this conveyance was made to Savage to aid in establishing a sportsmen’s club at Bean Lake. After describing Tract B by metes and bounds, the deed proceeds thus: “Together with the water front privileges appurtenant thereto.” As Tract B lies on the far side of a wheat field from Bean Lake, it is not plain to either a landsman or a waterman, from the naked grant without evidence aliunde, what “the water front privileges appurtenant thereto” may be. But the Savage’deed did not stop there; it goes on thus: “Also, the right to perpetually use, occupy and enjoy a water front along the water line on the east side of Bean Lake, immediately north of the county road, along the south liné of said section twelve for the construction of a boathouse over the water of said lake, of the length of forty feet along said water line.”
The privilege aforesaid will be hereafter referred to as “Permit C.” Presently thereafter, Savage conveyed Tract B to the “Bean Lake Pishing & Hunting Club,” and this conveyance included Permit C. In 1894 the Bean Lake Pishing & Hunting Club (which seems to have been known locally as a Kansas City
On such record hinges the contention of defendants that Mrs. Pease cannot make a valid conveyance to Tract A, and, therefore, whatever remedy Kirkpatrick may have, he cannot enforce specific performance.
But without deciding whether a vendee might not be entitled to part performance with satisfaction in damages for the part not performed, yet it is sufficient to say of this contention for the purposes of this case that it proceeds upon a misapprehension. If we hold that the unacknowledged deed executed by Park for Mrs. Pease is not good as a conveyance, which we do, yet if said abortive deed is good in equity as a contract to convey, which we also hold — then it will be seen that there was an exception reserved in the contract and that Kirkpatrick agreed to take title subject to “a concession of forty feet of water front next north of the county road to the K. C. Club for a boat-, house.” This is self-evidently the same concession granted in Colonel Osborne’s deed to Savage and in Savage’s deed to the Bean Lake Fishing & Hunting Club, to-wit: Permit C — subject to which Mrs. Pease (holding under a subsequent deed) took title. It is, furthermore, the same exception contained in the Peases’ deed to Rees and Rose, and in their deed to
. TY. Plaintiff’s counsel insist that Rees, Rose and Meyers took a title burdened with notice of plaintiff’s rights. This is so. In fact, defendants’ learned counsel do not argue that Rees, Rose and Meyers were not put upon inquiry and had no notice. They admit notice, but they say inquiry and notice amount to nothing unless plaintiff’s claims were substantial and enforceable in equity. They say (in substance) that plaintiff’s rights have no substance, that plaintiff has no standing in court, and, therefore, they bought with indifference and impunity, relying on 'the court’s brushing aside any apparent interest in plaintiff. But, as we have seen, they were mistaken in this and {ergo) must be held to take title subject to plaintiff’s equitable right to' specific perfomance, unless specific performance should be denied on a ground now to be considered.
Y. Finally, we are asked to sustain the judgment because specific performance is not a matter of absolute right, but rests in the discretion of the chancellor. In a sense specific performance does rest in the discretion of the chancellor. But discretion does not mean
Courts of justice sit to enforce the law. Now, the law may be said to be a general rule of action — a rule of civil conduct prescribed by the supreme power in a State. A contract is but a rule of action binding upon the parties thereto — i. e., a contract is but a law unto the parties thereto. Therefore, courts sit to enforce contracts — not to. abrogate them. [Evans v. Evans, 196 Mo. l. c. 23; Kilpatrick v. Wiley, 197 Mo. l. c. 172.] If (for instance) the bargain in this instance was over-keen and unjust, or if the party against whom specific, performance was sought was laboring under some disability and had been overreached, then (or in similar cases) there would be something for the discretion of the chancellor to take hold of — something binding his conscience. But, absent any earmarks of unfairness, overreaching or overkeenness (as here) and present a fair, just real estate contract (as here), to deny specific performance is to wound and vex the soul of equity itself.
In our opinion the judgment, nisi, was for the