Lockwood v. Hannibal & St. Joseph R. R.
65 Mo. 233
Mo.
1877
Check Treatment
Hough, J.

On thе fifth day of January, 1869, the plaintiff entered into a written contract with the defendant for the purchase of a certain tract of land in the county of Livingston, containing forty acres, at the price оf ten dollars per acre, to be paid for in ten annual installments, upon the payment of which thе defendant hound itself to execute to the plaintiff, his heirs or assigns, a deed therefor conveying the fee with the usual covenant of warranty. On the 7th day of May, 1869, another contract was entered into between the plaintiff and defendant for the purchase-by plaintiff' of a certain other tract in said county, containing eighty acres, at the price and on the terms stated in the first contract. Plаintiff went into possession of both tracts under and in pursuance of said contracts. After the paymеnt of one installment of the purchase money, the plaintiff having heard that the lands purchased by him wеre not the property of the defendant, but belonged to the county of Livingston, as a part of thе swamp land grant, so informed the defendant, and defendant replied that it would make the title good. In Mаy, 1871, both of the tracts purchased by the plaintiff were sold by the county of Livingston as swamp lands, and onе H. S. Duell became the purchaser, to whom, as owner of the paramount title, the plaintiff surrendеred possession without suit, and so far as the record shows, without demand made therefor. There was tеstimony tending to show that the lands in question were swamp lands, but there was no testimony tending to show that the samе were ever selected, or other*236wise designated, as such under the Act of Congress of September 28th, 1850, either by the State or the Federal authorities. The plaintiff- testified in regard to the sale of these lands by the county, as follows: “I wanted to have him (Duell) buy them, him or some one else, I should say, besides thе railroad company. I had spoken to Mr. Duell about buying them, had spoken to others about it, from thе fact that they were ‍‌​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌​‌‌​‍to be sold at much less figures than I was to pay the railroad company.” In September, 1872» the plaintiff* instituted the present suit for the rescission of the two contracts before mеntioned, on the ground that the defendant had no title to the lands sold. The circuit court rescinded the contracts and gave the plaintiff* judgment for the portion of the purchase money paid by him, and the defendant has appealed.

"We are not aware of any case in which it has been hеld that a vendee of land holding possession under an executory contract of sale, may suffer what is known as an ouster in pais, and then ask for a rescission of the contract. In such case the vendеe'would ‍‌​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌​‌‌​‍by his own act render impossible the mutual restoration necessary to rescission. Smith v. Busby, 15 Mo. 387. And it may be thаt the relation of vendor and vendee, which in an executory contract is held to be equivalеnt to that of landlord and tenant, would render the voluntary surrender of possession by the latter to a stranger, even after a demand made by him, ineffectual for any purpose, as against his vendor. Ash, adm’r v. Holder, 36 Mo. 163. The еxtract made from the plaintiff’s testimony does not evince that good faith ‍‌​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌​‌‌​‍on his part, which should have characterized the conduct of one in his situation.

The stipulations for the payment of the purchase money and the making of.the deed were not dependent but independent undertakings, and, conceding that the title was in the county, it does not appear but that the defendant might acquire the same in time to perform its contract. The facts stated in the record would certainly have con*237stituted no defense to an action by the defendant for the annual installments ‍‌​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌​‌‌​‍of the purchase money, which were due when this suit was instituted; Smith v. Busby, 15 Mo. 387; Harvey v. Morris, 63 Mo. 475. And if a suit for rescission by the vendee can only be maintained in cаses where such vendee might, as defendant, successfully resist an action against him on the notes for the purchase money, then it is plain that, on the case made, the plaintiff was not entitled to relief. But even if it be conceded for the sake of argument, that the doctrine of ouster in pais can be invoked in а case like the present, still it does not appear that the title to the lands in question was in the сounty of Livingston. It did not suffice for the purpose of showing title in the county, ‍‌​‌‌​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌​‌​​​​​​‌​​‌‌​‌​‌‌​‍to show simply that the lands in question were swamp lands. Although the Act of Congress of September 28th, 1850 has been several times declared tо constitute a present grant, yet in the case of the R. R. Co. v. Fremont County, 9 Wall. 89, and in every case decided by this court where the title has been held to be vested in the county under the provisions of said act and by virtue of Stаte legislation, there was some selection, or designation, by State or Federal authority, of thе subject matter of the grant. In the case at bar, no such selection^ or designation, was ever made. Morgan v. Han. St. Joe R. R. Co., 63 Mo. 129. Eor the foregoing reasons the judgment will be reversed and the cause remanded. The other judges concur,

except Judges Norton and Henry, who were not members of the court when this cause was submitted.

Reversed.