110 Mo. 298 | Mo. | 1892
Wm. O. McLeod and Benjamin H. Shipp, by a conveyance made to them, having become the joint and equal owners of a certain tract of land in 1881, sold the same in May, 1883, to James A. Snyder, the defendant, for the sum of $5,000, and contracted to make him a good title, he to pay $500 cash which he did, executed his four several promissory notes to McLeod and Shipp jointly, payable December I, 1883, for $500, and the other notes for $1,333.33 each, payable respectively December 1,1884, December 1, 1885, and December'1, 1886. McLeod and Shipp made Snyder a title bond to, and he afterwards was placed in possession of, the land by McLeod and Shipp, and paid off the two notes first falling due, and made valuable and lasting improvements on the premises. Shipp transferred his interest in the notes to parties who subseqently transferred the same to McLeod. After transferring his interest in the notes, Shipp died leaving a widow and one child surviving him.
In 1887, McLeod brought his ordinary civil action on the two promissory notes yet remaining unpaid, in which he alleged the transfer of Shipp’s interest in the notes to third parties and their transfer to him.
The first count of the answer of the defendant admitted the execution of the notes, but denies the other allegations of the petition.
The answer also sets up that Shipp was in his lifetime seized, of the undivided one-half of the land in controversy, but had died, leaving a widow and one child, who survived him, and asks that they be brought in and made parties to the suit. The answer also renews the tender theretofore made, and prays that plaintiff be compelled to procure and deliver to defendant good and sufficient deeds to the land,- before he be allowed to prosecute his suit, and for general relief.
The reply admits the execution of the notes to plaintiff and Shipp jointly, and that defendant took possession of the land as the purchaser of plaintiff and Shipp. Admits the tender of the balance of the purchase money; but denies a refusal to accept it, and then alleges the tender to defendant of a warranty deed of the land, executed by plaintiff and wife, and the demand of the purchase money, which was refused, etc.
Upon the evidence adduced the court gave the following declaration of law at the instance of the plaintiff: “The plaintiff moves the court to declare the law by way of demurrer to defendant’s evidence, that under the pleadings, and all [the evidence offered, the plaintiff is entitled to judgment for the amount of the notes sued on.”
The court found the issues for the plaintiff and gave judgment accordingly, and defendant brings this case here on error.
OPINION.
I. There is nothing in the point that Shipp transferred this one-half in the notes to third persons, and that they transferred the same to McLeod. If a debtor chooses, he may make his notes to as many persons as he pleases, and each one of these payees may transfer his interest therein to another person; otherwise each’ payee might have an unmarketable title on his hands. The rule relied on only forbids the transfer by apayee of portions of his interest to another, or different payees, and thus render the non-consenting debtor liable to a number of suits, and to additional costs. The debtor, of course, may contract that this debt shall be paid as integer, or that it may be paid in fractions; but where he contracts in the latter way he cannot object if the payee or payees transfer this fraction or fractions to some one else. The cases of Love v. Fairfield, 13 Mo. 301; Burnett v. Crandall, 63 Mo. 410; Beardslee v. Morgner, 73 Mo. 23; Loomis v. Robinson, 76 Mo. 488, do not apply to this ease.
II. The defendant was'right in asking, and the court wrong in refusing, to make the heir-at-law of
III. The court below, it seems, misconceived the theory of the defendant’s answer. He was not resisting the payment of the purchase money, nor any part thereof; he had already paid nearly half, and showed in the most pronounced manner his entire ydllingness, nay his anxiety, to pay the rest; he was simply insisting upon his rights under the contract of sale, the chief of which was a perfect title to the land, to the whole title and not -to a half title. He had the right to get what he bargained for before he paid the residue of the purchase price, and, under the conditions of the title bond, the execution and delivery of a sufficient deed to convey the title, were to be concurrent and contemporaneous acts; and payment of the purchase money cannot be coerced without the delivery, or at least the tender, of a deed sufficient in all respects to meet and fulfill the requirements of the contract of sale. Wellman, Adm’r, v. Dismukes, 42 Mo. 101; Pershing v. Canfield, 70 Mo. 140; Thompson v. Craig, 64 Mo. 312; Melton v. Smith, 65 Mo. loc. cit. 323; Smeich v. Herbst, 19 Atl. Rep. 950. And, whenever there are two joint obligors in a title bond, nothing less than a deed including and conveying the title of both such obligors will answer the demands of the contract. Melton v. Smith, supra; Fry on Specific Performance of Contracts,
And the fact that the name of Snyder, the defendant, was inserted in the bond as obligor in the place of McLeod’s and Shipp’s will not affect the right of the defendant, since it is perfectly clear who was intended to be bound, and this is all that equity requires. See Stow v. Steel, 45 Ill. 328, cited, Lincoln v. Thompson, 75 Mo. loc. cit. 642.
IV. For the reasons stated, the case of Crumb v. Wright, 97 Mo. 13, has no applicability to the one in hand, and cases like Mitchell v. McMullen, 59 Mo. 252; Connor v. Eddy, 25 Mo. 75, and Cooley v. Rankin, 11 Mo. 643, are equally inapplicable.
Judgment reversed and cause remanded.
SEPARATE OPINION.
The petition counts upon two notes for $1,333.33 each, signed by defendant, dated May 26, 1883, payable respectively on o„r before December 1, 1885, and at a corresponding da'te in 1886, to the order of McLeod (plaintiff) and Shipp, for value received; and regular assignments thereof to plaintiff.
The answer presents the defense indicated later on, and the reply thereto need not be specially noted.
The case is practically an agreed one. The controlling facts are mutually admitted, and only questions of law remain.
It appears that these two notes were part of a series of four, of the same date, due at different intervals, viz.: The first for $500, payable December 1,1883; the second, for $1,333.33, December 1, 1884; and the
These notes were made pursuant to the terms of a bond for a deed, executed, acknowledged and delivered at the same time, by McLeod and Shipp to defendant, and in consideration thereof. By the terms of this bond, McLeod and Shipp became bound to defendant in the sum of $4,500, upon condition that, if they, the said obligors, “upon payment” thereof by defendant, “agreeably” to the four notes mentioned (representing the purchase price), should convey to defendant certain (particularly described) land in Chariton county, Missouri, by general warranty “deed or deeds in common form, duly executed and acknowledged,” and, in the meantime, should permit him “to occupy and improve said premises for his own use,” then the bond should be void; otherwise in full force.
The point of defendant’s resistance to paying the notes, yet due, appears from certain other facts.
After the bond and notes were exchanged for each other, Shipp sold his interest in the notes to third parties, who, in turn, transferred that interest to plaintiff. These transfers were in due form, in writing, upon the notes themselves-. Thereafter, shortly before this litigation began, Shipp died. He left a widow and minor child, and his estate was in course of administration in the probate court of Chariton county while this cause was pending- in the circuit court.
Defendant went into possession of the land, after receiving the bond for a deed, and has been in possession ever since.
Plaintiff and Shipp were the record owners (in equal parts) of the title to the land when the bond was' given, and defendant' assigns no flaw in the title they held.
The cause was tried by Judge Bubgess without a jury, and, at the close of the testimony, he declared the law to be that, under the pleadings and evidence, plaintiff was entitled to recover the amount of both notes. After judgment to that effect defendant brought the case here.
I. We all agree as to the true construction and effect of the bond for a deed in this case, and as to plaintiff’s complete legal title to the notes in suit.
II. But it seems to me that the facts; discussed in the foregoing opinion, do not constitute any defense whatever to the first of the notes in suit, namely, the one maturing in 1885, on which the cause of action separately stated in the first count of the petition is based.
As to the last of the series of purchase money notes (that falling due in 1886) sued on in the second count, the agreements for its payment and for a trans
In my opinion, upon reversing the judgment, the finding on the first count should be affirmed; and the cause should then proceed, as to the second count, in accordance with the views expressed in the opinion of the court. That practice was adopted in Boeger v. Langenberg (1889), 97 Mo. 390, and appears to me proper in this case.