141 Mo. App. 369 | Mo. Ct. App. | 1910
The real contention in this case is as to, whether or not Kelso agreed to assume the deed of trust that was on the land at the time of the execution of the contract, and whether the plaintiffs were able to comply with their part of the agreement to furnish a good title up to date. As to the agreement of Kelso to assume the mortgage there was some conflict in the oral testimony in relation to that, but, in the view we take of the situation, no oral testimony in relation to that question should have been received. In the first place, such testimony was a contradiction of the written contract between the parties. The contract itself provides that the balance, — $3,000 is to be paid on or before
The contract in this case met the requirements of the statute, and is brought squarely within the rule above stated.
There is another reason why a parol agreement between these parties, by which Kelso was to assume and pay this deed of trust, cannot be considered in this case, and that is, if such an agreement were made, it was an agreement on the part of Kelso to answer for the debt of another, and that is itself within the Statute of Frauds and is not valid unless in writing. Hence, any oral agreement made in that respect is nugatory in this case.
The plaintiffs in this case have covenanted by their contract to furnish a good title up to date. They were bound to do so,, and if we waive all questions relating to the transfer of one acre to the school district with an easement to the spring, yet this encumbrance of $3,000 was a material defect in the title and Kelso was not bound to accept the title in that' condition. [Ives v. Crawford County Farmer’s Bank, decided at this term.]
Since Parsons and Akers were not in a position to enforce specific performance, and could not furnish the title they had agreed to furnish, the court below followed the proper course in rescinding the contract and requiring Kelso to be placed in statu quo, by giving judgment in his favor for the money which he had paid. The judgment will be affirmed.