233 Mo. 713 | Mo. | 1911
This is a suit in equity, brought on December 19, 1906, in the Jackson Circuit Court, to clear away a cloud on plaintiff’s title to a part of the southwest quarter of section 36, township 50', range 33, in Jackson county — 22 acres, more or less, described with particularity in the bill.
On May 24, 1906, plaintiff contracted in writing-with defendant, Etta O. Deshler, she signing as “E. O. Deshler,” thereby bargaining the land to her for $60,000' — $2000 paid down. The contract, being unacknowledged, was not entitled to record. At a certain time thereafter she conveyed by deed to her corporate, codefendant, the Iron Company, in which conveyance there was a narration referring to said contract, which deed was presently spread of record. The object of the suit is to cancel this deed and its record as a cloud-, upon the plaintiff’s title.
From a decree-canceling the deed, removing the-cloud cast by its record and enjoining defendants sev
Of the pleadings:
The bill alleges the Iron Company is a Missouri business corporation, located in Kansas City; that plaintiff at the times in hand was and is the owner of the real estate in question (describing it); that on May 24, 1906', plaintiff and defendant Deshler, under the name of “E. O. Deshler,” entered into a written contract whereby plaintiff sold to her said real estate for the sum of $60,000 — $2000 down; $18,000 to be paid upon the delivery of a warranty deed; and $40',000 to be paid on or before five years from such delivery, to he evidenced by Deshler’s note, secured by a deed of trust on the land, bearing six per cent semi-annual interest, with the privilege of paying $5000 or any multiple thereof at any interest-paying period; that plaintiff, within ten days, was to furnish Deshler a complete abstract of title to said real estate, certified by a competent abstracter, from the United States Government to date, accompanied with the usual certificate; if upon examination it was found that plaintiff had a “good title in fee to said property,” he was bound to execute “a general warranty deed,” “free and clear of all liens,” and concurrently therewith Deshler was bound to pay the balance of said cash payment and deliver said note and deed of trust securing the same; “if the title to said real estate should be found defective,” plaintiff was to rectify the defects within a reasonable time, not to exceed sixty days “from the notice of such defect;” if such defects in the title “could not be cured or remedied” within that
The bill further alleges that plaintiff and Deshler on the 30th day of June, 1906, entered into a further written contract whereby it was mutually agreed that the time for consummating the first contract was extended to the 20th da.y of September,'1906, and in all other respects the first contract was continued in force; that plaintiff complied with the terms and conditions of both contracts upon his part, tendered a general warranty deed to Deshler on the 20th of September, 1906, and demanded that Deshler perform and carry out the terms of the contract on her part by making the cash payment referred to and executing the note and deed of trust; that Deshler failed and refused to perform the terms and provisions of the contract on her part, refused to pay the balance of said cash payment and .to execute either said note or deed of trust; that afterwards D'eshler on the same day, to-wit, the 20th of September, 1906, unlawfully and wrongfully conspiring and confederating with her codefendants, executed to the defendant Iron Company a general warranty deed purporting to convey said real estate for a consideration of ‘ ‘ one dollar and other valuable considerations,” which deed, duly acknowledged on the same day, was filed for record by the said Iron Company and defendant Wright, and recorded at a given book and page in the office of the
Defendant Deshler answers separately in a general denial, except as to those allegations specifically admitted, viz., first, that she purchased said real estate and that by a deed duly recorded she transferred her interest to her codefendant the Iron Company.
Defendant Wright answered by way of a general denial.
Defendant Iron Company by its sepárate answer denied all allegations, except those specifically admitted, viz.: It admits “that prior to May 24,1906', plaintiff was the owner of the land described in the petition;” admits the contract to sell to Deshler as set forth, admits payment of the $2000, admits the extension agreement of June 30, 1906, and admits the execution of Deshler’s deed to it. Further answering it
By way of “the whole truth of the matter” (which truth, it is alleged, is also set forth in the petition in another suit pending, filed September 27, 1906, entitled Lackawanna Coal & Iron Company, Plaintiff, v. Robert J. Long, Defendant), the answer goes on to say that the extension agreement referred to in plaintiff’s petition in this cause was made for the purpose of enabling plaintiff to perfect the title to his land which had been found defective; that said Long undertook to cure the defects thereof, admitted by him to exist, by a proceeding in court; that said proceeding “had not become effective on September 20, 1906,” and has “not now become effective,” but that notwithstanding said Long failed to perfect the title and notwithstanding Deshler and this defendant, since it became the owner of Deshler’s title, have been at all times ready and willing to take the title ahd carry out said contract as soon as the title became perfected, plaintiff had refused “to carry out the perfecting of said title” and has wrongfully and fraudulently attempted to convert said $2000 to his own use; that, as aforesaid, this defendant brought a suit against this plaintiff, setting up said contract, said payment and its willingness to perform as soon as the title was perfected. Here follow other allegations relating to defendant’s said suit, the nature and object thereof, viz., to enjoin and restrain plaintiff from conveying said real estate to anyone except the Iron Company as soon as the title is perfect — which suit, the answer alleges, is a complete bar to this action.
Of the facts:
To make his case plaintiff introducéd the contract between himself and Deshler of date May 24, 1906. ' It will suffice to say of this contract that its terms and provisions sufficiently appear in plaintiff’s bill and that the several answers of defendants admit the contract as there pleaded. "Under that contract an abstract of title was furnished by plaintiff and examined by the attorneys for defendant "Wright.- On June 8, 1906, they gave an opinion to Wright in the form of a letter pointing out certain things they deemed defects in the title, which defects will be referred to further on. One clause of this opinion runs:
“10th. This title is very defective, and in our opinion a suit should-be brought to quiet the title by the Statute of Limitations, unless the parties are prepared to furnish quit-claim deeds from all who hold outstanding titles. ”
Because of that opinion a supplementary contract (its force wholly spent on an extension of time in or
“It is hereby mutually agreed by and between the parties to the within and annexed contract that the time for the consummation of said contract is hereby extended to the 20th day of September, 1906., in order to enable the seller to bring a suit to quiet the title to the land described in said contract, as required in the opinion of Johnson & Lucas, attorneys for the buyer, dated the 8th day of June, 1906. In all other respects said contract is continued in force.”
The case is put on both sides here on the theory all the alleged defects were satisfactorily explained or removed, except those the subject of the suit to quiet title, instituted by plaintiff on the heels of the supplementary contract; and in order to understand the occasion and scope of that suit a resume of the history of plaintiff’s title is fit, viz.:
As to the west half of the land, there is an unbroken chain of title of record from the Government down, consisting' of a patent at the outset, followed by mesne conveyances in unchallenged form, each entitled to record and duly recorded. As to the east half, there is a perfect record title from November 26, 1835, to this date, consisting of conveyances in due form, entitled to record and duly recorded. The title to the east half passed out of the Government in 1830 to Bowers and Lovelady, passed from them in 1831 to Linville, passed from him in 1832 to another Lin-ville, passed from the latter in March, 1834, to John C. •Young, and there stopped. In 1835 one Wilson, who had got title to the west half, ignoring the Young break, conveyed all the land to Robert Long, plaintiff’s grandfather, and the two halves, reuniting in the grandfather, came to plaintiff through common deeds and by descent cast. All we know of Young is by a flash of light from a pioneer news item in the record to the effect that before plaintiff’s grandfather acquired title
Whether the idea was born of a mere lively imagination or had a more substantial root, we cannot make out, but an hypothesis seems to have been indulged by defendants and tolerated by plaintiff to the effect that possibly the name, “John O. Young,” was a misnomer and that one John O. Long was intended as the grantee in said deed. There are no facts warranting such conclusion. The record does show, however, that plaintiff had an uncle, John O. Long, who died in 1849 in Kentucky. He seems to have owned land north of the land in question and when he died left three children, girls, and a will. At a certain time in 1887, when Kansas City and the region thereabout were sorely afflicted by that species of excitement and those diseased incidents in real estate dickering and scheming related thereto, known colloquially as a “boom,” one Lee put a deed on record to himself from James R. Boyd, reciting that he, Boyd, was one of the children of Mary C. Boyd, who was a daughter of John C. Long, and another deed from Thomas P. Boyd, who described himself as a son of said Mary— a daughter of John O. Long. The larger body of land conveyed by these deeds was the southeast quarter of section 36, township 50, range 33; and does not concern us. However, there was inserted an indefinite description of other land, reading: “Also forty acres in the soutMvest quarter of the same section, township and range” — which might or might not involve the land in question. On the theory, -as said,
Such steps were taken in that suit that the proceeding ripened into a judgment on constructive service against all the parties defendant as non-residents before September 20, 1906'. The petition was submitted to the attorneys employed by defendant Wright. They knew the parties were non-residents and approved the proceeding as a proper one to sub-serve the end in view in their opinion of the 8th of June (and in the supplementary contract) to establish title of record by.the Statute of Limitations and to quiet the same.
Going back a little and bringing down the other threads of the case to the date’ of September 201, 1906, it appears that the original contract spoke of Deskler in the male gender; that plaintiff and his agents supposed Deshler to be a man and the fact that she was a married woman was concealed from them. It seems the contract arose in this way: Plaintiff had a son, David, who was a real estate agent and had the land for sale. This David met up with one Dawes, another real estate agent, who joined with David in effecting a sale. Presently either Dawes or David or both came in contact with defendant Wright, another real estate agent, and interested him in the effort to get a purchaser. Wr'ight pretended to find a purchaser in Deshler. She turned out to be the wife of a stockyard employee, an acquaintance of Wright in Kansas who had married the nephew of Wright’s wife. She was without means, living upstairs in a tenement house, and
After the meeting, things moved at a smart pace. As a result of a consultation with his attorneys, Wright later in the day paid Mrs. Deshler a silver dollar for a deed and had her make one to his corporate codefendant, containing the narration heretofore set out, which deed Wright recorded late in the afternoon. His said attorneys were some of the officers of the .Iron Company and that company confessedly took with full notice of all the foregoing facts and circumstances, and with the understanding it would, if successful in recovering the advance payment, account to Wright in the premises. Presently, the Iron Company instituted its suit in equity — the life of its bill being to restrain plaintiff’s conveyance of the real estate to anyone other than the Iron Company until such time ■ as he “perfected” his title, alleging his failure to do so and its own ability and willingness to stand by the contract and perform. Cast on demurrer in that case (Lackawanna Coal & Iron Co. v. Long) the Iron Company appealed to this court — the judgment nisi being affirmed in an opinion just handed down and officially reported in 231 Mo. 605. Presently, after the Iron Company instituted its suit, plaintiff brought the instant suit.
' In addition to the 'foregoing facts, it was shown at the trial by uncontradicted evidence that plaintiff, his grantors and their ancestors had been for 75 years in actual, visible, continuous and peaceful possession of the real estate as part and parcel of a cultivated farm (the locus being one of the oldest cultivated
The question is: On such a record, can the decree stand?
I. The petition alleging that plaintiff was “the owner in fee simple of” the land, and the answer admitting “that prior to May 24, 1906, plaintiff was the owner of the land described in the petition and on that day he entered into a contract to sell the same to one E. O. Deshler, as set forth in said petition,” it is .argued that plaintiff’s title “in fee simple” stands admitted — in other words, he was relieved of the burden of proving title. . But when the answer is read from end to end, we do not construe it that way. “In construing pleadings under the code, the doctrine of contra proferentem is not allowed in its one time common-law vigor and rigor. The old rule is much clipped by statute.” [Sharp v. Railroad, 213 Mo. l. c. 525.] The statutory rule of construction is that the allegations of a pleading, for the purpose of determining its effect, shall be liberally construed with a view to substantial justice between the parties. [R: S. 1909, sec. 1831.] Applying the doctrine of liberal construction, we are unwilling to rule that the admissions of the answer relieved plaintiff from proof of a good title. This view is fortified by the fact that plaintiff did not construe the answer below the way he does now. To the contrary, he voluntarily assumed the laboring
We rule the point against him.
II. Plaintiff’s counsel argue that because of the peculiar phraseology of the answers there was no issue raised on the record, for that each answer ‘ ‘ denies each and every allegation in said petition contained, except as are hereinafter specifically admitted.” The point is that the exception corrodes the bowels of the denial. There are cases in which that form of denial is criticised. Doubtless, much of substance can be said against its use, and if we had entirely put it under the ban as a heresy, violative of those rules of good pleading that call for such certainty and precision as frame a sharp and plain triable issue, the profession of the law and the science of pleading-might be the better off. But that form of denial, through long use and appellate toleration, is now venerable with age. Given that it is unattacked below, it has been allowed to raise an issue in too many cases for this court to now repudiate it in toto by making a case break on the point when the merits are here for review. The maxim is: The practice of the court is the law of the court. We do not mean to say after a denial with such a broad, evasive and vague exception tagged to it, a defendant might not make such following -averments in his answer as sponged out his denial in whole or in part. In effect, that is what happened in Dezell v. Fidelity Co., 176 Mo. l. c. 279. So, by confession and avoidance defendant may entirely explode the office of his denial. That is what happened in State ex inf. v. Delmar Jockey Club, 200 Mo. l. c. 63, et seq. It will be observed the answer does not state what was denied or what was admitted. It puts the problem up to plain
In the case at bar no motion to correct the pleading was filed, neither did plaintiff move for a judgment on the pleadings, as in Snyder v. Free, supra, but both court and counsel proceeded on the theory they understood the answer in spite of the fact that it half denied and half admitted and thre'W' upon them the burden .of finding out which half was denied and which admitted'. Under such circumstances, the point does not differ in its essence from that ruled in the first paragraph. The trial theory was that the answer was sufficiently specific and definite.
III. Recurring to the allegations of the answer and the reply relating to the pendency of a prior suit, entitled Lackawanna Coal & Iron Company v. Robert J. Long, having for its purpose an injunction against Long, restraining him from selling the property in question to anyone except the Iron Company when the title was perfected, in- which suit the Iron Company was cast on demurrer to its hill and judgment went for Long, defendant Iron Company insists that the pendency. of its prior suit abates the present suit. Counsel argue plaintiff was not entitled to maintain this suit when a suit was already pending, involving the same issues and in which all issues raised by plaintiff here could have been and will he determined there. In his reply, Long alleged that the judgment in the prior suit was res adjudicata and therefore a bar to the defense set up by defendant’s answer in the instant case. But his counsel does not renew that contention in his brief.
Is there substance in the proposition advanced by defendant? The first case was never at issue on the facts. It passed off on a demurrer -to the sufficiency of the petition. That the petition was had was held both below and above. [See, Lackawanna Coal & Iron Company v. Long, 231 Mo. 605.] Even if we were inclined to hold that Long by way of defense to the first suit could have set up the same matter constituting the cause of action pleaded in his hill in the instant case, yet we could hardly hold that he was obliged to do that when the bill for injunctive relief against alienation stated no cause of action whatever. But if the bill had been good in the first ease, the present plaintiff, defendant there, was not obliged to plead affirmative matter entitling him to affirmative relief and seek that relief by way of an answer in that suit. He had
The point is ruled against defendant.
IY. There are related propositions in the case, viz.: For plaintiff, that he had a title of the kind contracted for from two sources. First, in fee simple by virtue of our several statutes of limitations — in other words, there were no defects and defendant should have accepted it under the original contract.- Second, at all events he did what defendant requested and fully performed under the supplementary contract. •Therefore, he was entitled to performance on the contract date (September 20, 1906) — this, on either ground.
We pass to the consideration of such of the foregoing propositions as we deem material to the case.
(a). Whether section 2538, supra, providing for a suit to perfect title by limitation and the proceedings therefor, is a complete code within itself, creating a new right and providing a remedy not affected by the general statutes relating to the filing within three years.of a petition for review of judgments rendered without summons on an order of publication (R. S. 190-9, secs. 2101 to 2108, inclusive, supra) — in other words, whether the judgment became absolute at once,
We have no difficulty in deciding that a State statute may provide that the title to real estate within its limits ma,y be settled and determined by. a suit in which the defendant, a non-resident, is brought into court by publication. [Arndt v. Griggs, 134 U. S. 316.] The trouble is: Is the judgment absolute, eo instanti, or subject for three years to review? For reasons presently considered the question is not determinative and we reserve it as open to be decided when a case arises hinging on the precise point.
In this case, defendant is precluded from raising the point. It amounts, in effect, to an extension of time for performance to three years from the date of the judgment in direct violation of the contract time, September 20,1906. There is nothing to show that the contracting parties had any such extension in mind when they made the supplementary contract. To the contrary, they had in mind the short extension named “in order,” to quote from the contract itself, “to enable the seller to bring a suit to quiet title to the land ’ ’ as required “in the opinion of Johnson & Lucas.” To effectuate that purpose “the time for the consummation of said contract” was “extended to the 20th day of September, 1906,” and in all other respects the original contract “was continued in force.” That we
We rule,, then, that defendant Iron Company was not entitled to wait three years to test whether the judgment would remain unopened by a petition for review. We rule further that if plaintiff had a good
(b). It is argued that by the supplemental contract plaintiff admitted defects; hence, it is inconsistent for him now to say there were none, but we see no inconsistency in A- saying to B: “There are no defects in my title, but if there are, out of abundant caution, I have cured them a,t your request, under your supervision and in the very way you asked me to.” But we need not pursue the matter; for under our ruling in paragraph “ (a)” it does not touch the merits.
(e). The main question is: Did plaintiff, on September 20, 1906, have a title of the kind he contracted to give and was Deshler in default in performance at that time. If so, the Iron Company is also in default, for it took over the contract, cum onere, with full notice. Under this head, it is argued that plaintiff did not have a good title to one-half of the land by limitation. We shall let the point break on its merits, although we have no little doubt whether the Iron Company is in position to raise the point at all. This, because distinguished .counsel now representing it suggested in their “opinion” that a decree perfecting .title by limitations would do. Based on that suggestion, a contract calling for such decree was drawn and executed. Based on that contract, such a decree was obtained and tendered. May counsel now say that all this amounted to nothing? ' That the title is not perfect and performance not due?. But waiving that view of it and attending to the merits they lie broadly with plaintiff on this record.
The elements of a title by limitation are uninterrupted possession — actual, visible, notorious, adverse and hostile, under color and claim of right for the statutory period. “The words adverse and hostile mean practically the same thing.” [Weller v. Wagner, 181 Mo. l. c. 161.] And either of them can be omitted in defining the character of the possession, provided the
V. The parties, sui juris, by their contract at arms’ length made their own- law governing the advance payment. We sit to enforce fair contracts, fair
The case was well pleaded, well tried and well decided. Let the judgment be affirmed.
Since writing the foregoing, we have at this delivery handed down a case (Burnham v. Clark, 232 Mo. 657), wherein our Brother Graves considers the point in connection with a kindred statute and rules against respondent’s theory.