67 Mo. 50 | Mo. | 1877
The plaintiff, Pratt, sued the defendant in the Common Pleas Court'of Linn county, to enforce the specific performance of a contract between the parties, by which plaintiff’ sold and defendant purchased the n w qr. of section 14, township 57 of range 21, in Linn county, Missouri.
The contract was .in writing. The price agreed upon was $1,280, to be paid in three payments, the first of which •$640, was to be made on the 1st day of January, 1871, and the balance in two equal annual payments, one on the 1st day of April, 1872, and the other on the 1st day of April, 1873, both to bear interest from April 1st, 1871, at seven per cent, per annum. On payment of $640 on the 1st day of January, 1871, Pratt was to execute and deliver . to defendant a general warranty deed, conveying to him the said land, and to deliver to -him possession of the land “ on the 1st day of March, 1871, or as soon thereafter as plaintiff could arrange to do so.” Plaintiff alleged that he had always been, and still was ready and willing to perform said agreement on his part, and to deliver to defendant, possession of said land at the time specified in said .agreement; that on the 1st day of January, 1871, and at divers times since, he tendered to the defendant, his general warranty deed conveying to defendant said land, but defendant refused to accept it and pay the purchase money, or any part of the same, and again tendered said deed in court for the defendant, asking a specific performance. Defendant in his answer admitted the contract as alleged’ by plaintiff, but denied that plaintiff had a title to the land, alleging that one H. Degraw and Harry Lander were thbowners of the laud and had sued plaintiff’ for the same, and that said suit was then pending in this court on appeal’ from the Linn county circuit court; denied that’plaintiff ever tendered him a deed for the land, or that it was at any
The evidence of plaintiff’s title was a patent from the government of the United States, for the land in question to Abraham Smith, dated June 8th, 1819, a deed from said Smith to Levi E. Stephens, conveying said land to said Stephens, and a deed from said Stephens to plaintiff, dated 21st day of October, 1859. ' There was no evidence of title in Degraw and Lander, or either of them, or any one else except Pratt, unless the facts hereinafter stated showed an adverse possession of ten years in Degraw under color of title. Although the tract is military bounty land, ten year’s adverse possession by Degraw would, under our statute, be necessary to defeat Pratt’s title, Pratt’s right of entry having accrued before the passage of the act of 1866. Neilson v. The County of Chariton et al., 60 Mo. 386. If Degraw had an adverse qiossession it commenced in 1865 or 1866. The evidence on this point showed that in 1860, Pratt, by a contract in writing, sold the land to one Morrow, who took possession of the land, made improvements and remained in actual possession until 1864. About that time he moved off the land and was absent from the State for twelve months. He then returned and again went into possession of the land — Degraw says in his testimony under a lease from him. He continued in possession until about the 29th of July, 1870, when the contract between
“ The rule of law that a person coming into possession of land under the agreement or license of another, cannot be permitted to deny the title of the ' latter, when called upon to surrender, is of almost universal application. Even if he had a valid title at the time, he is deemed to have waived it, and as between the parties, to have admitted title in the person under whom he entered.” Tyler on Eject, and Adverse Possession, 166; Jackson v. Ayers, 14 John. 224. “And a claim of title which cannot be set up by a person while in possession, cannot be set up by another person who comes into possession under him.” Tyler on Eject, and Adv. Possession, 166 ; Jackson v. Harder, 4 John. 202; Jackson v. Bard, Ib. 230; Jackson v. Walker, 7 Cow. 637. In Jackson v. Harder, Chancellor Kent observes: “ This brings us then to this point of inquiry whether a
The evidence conclusively proved a tender of the deed by Pratt to Canfield; Canfield himself testified to that fact, and that he refused to receive it, unless Pratt would also give him a bond with security to indemnify him. He testified also that he not only declined to accept the deed, •except upon the condition of receiving a bond of indemnity, but that he refused to rescind the contract which was proposed by Pratt, and he also stated that he had a contract with Degraw for the purchase of the land.' ■ Counsel for defendant contend that a court will not decree a specific performance of a contract in favor of a vendor whose title is doubtful, and that the fact that a suit is pending here in which Degraw and Lander are plaintiffs against ■Pratt to recover this land, should prevent an affirmance of the judgment. The authorities cited to establish the prop
But we place Pratt’s right upon the broad ground that Morrow, having once taken possession under his contact with Pratt, although he may have afterwards abandoned it, yet if no one else took' possession, his subsequent entry, whether under a lease from Degraw or not, related back to and continued the original possession obtained from Pratt. His abandonment of the possession of the land was not a rescission of the contract of purchase; it did not alter the relation of vendor and purchaser betwixt him and Pratt; it did not effect a change of possession in law. He or Pratt was still in possession, and he could not, while the contract between him and Pratt was in full force, enter upon the land under a contract with or lease from another and hold it adversely to Pratt. If he could not, then there is not, so far as the record shows, a shadevy of doubt that Pratt’s title is perfect. Not only was there no adverse possession in Degraw for ton years, but he never
Affirmed.