31 Mo. 54 | Mo. | 1860
delivered the opinion of the court.
The idea of the court below was that a tender of a deed with warranty was sufficient to entitle the plaintiff to a specific performance, without showing that he had any title to the land he had agreed to convey. This notion is not warranted, and the plaintiff, in his petition, does not show that he is entitled to a specific performance of the contract set out. He can not have his contract specifically enforced, without showing that he has a good title to the land he has bargained to sell. He conceives that, because the defendant went into the possession of the premises and has not been evicted, he can not therefore claim any reduction of the stipulated price on account of a failure of title to a portion of the land agreed to be sold, but is remitted to his remedy on the covenants contained in the deed tendered to him, and which was stipulated for by the contract. This might have been the case, if the contract had been executed, and the defendant was in possession under a warranty deed. But that question is not involved in those proceedings. The plaintiff is seeking to enforce a specific performance of a contract to convey lands against the defendant, and would compel him to take a deed with covenants for title in lieu of a title itself. A covenant to convey with a general warranty deed is an affirmation that the party making the covenant has or will have an indefeasible title, and in a suit for a specific performance of a contract to convey, the party seeking it must be able to convey such a title, otherwise he can not succeed.
The plaintiff did not show a title under the statute of limitations. It is said the court will never compel the purchaser to take a title, where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings. It will not compel a man to buy a law suit. Sugden says there are but few titles depending on the statute of limitations that can be recommended. A party making out a title under the statute of limitations must show it to be good,
If the plaintiff made any fraudulent misrepresentations about the land agreed to be sold, or representations which were not true, it would depend on circumstances whether such misrepresentations would be a ground for a rescission of the contract or for compensation. We do not conceive that the defendant in his answer has made such a case as would induce the court to rescind the contract. He does not show that he relied on the representations, or that he had no information on the subject about which they were made; nor that, if they were not true, he would not have entered into the contract. Fraud may always be shown by oral evidence although the contract is reduced to writing. Where the vendor has not substantially the whole interest he has contracted to sell, he can not enforce the contract against the purchaser, and yet the purchaser can insist on having all the vendor can convey with a compensation for the difference.
We do not see how the defendant can insist on the statute of frauds, as in his answer he prays a rescission of the contract. If he has entered on the land and made improvements without any binding contract, or intending to rely on the statute of frauds, he may meet with some difficulty in obtaining compensation for his improvements. We do not see how the plaintiff can meet the plea, of the statute by insisting that the defendant has been put in possession, made payment of part of the purchase money, and erected valuable improvements. These circumstances might be insisted on by the purchaser on a bill for a specific performance, when the statute was pleaded by the vendor; but if the vendee will waive the right these circumstances conferred on him, we do not see how the vendor can insist on them for him.
The record does not furnish us with evidence sufficient to determine this controversy, the parties having gone into it without being fully apprised of their respective rights.
