174 S.W.2d 830 | Mo. | 1943
Plaintiff, as purchaser, sues for the specific performance of a contract for the sale of land. At the time the contract was made title to the land stood in the name of Elizabeth Gruber, deceased and intestate, mother of defendants Walter and George Gruber, her only heirs. The controversy hinges on the interpretation of a provision of the contract which reads: "Parties of the first part [defendants, vendors] agree to deliver to party of the second part [plaintiff, purchaser] an abstract showing good title in Elizabeth Gruber, the deceased mother of grantors, Walter Gruber and George Gruber, and a good warranty deed of conveyance of the above real estate to the party of the second part on March 1, 1941. . . ." The contract provides the balance of the purchase price should be paid on or before March 1, 1941, and that time was the essence of the contract. *1036
At the trial plaintiff amended his petition to conform to evidence adduced by him by alleging in February, 1941, defendants furnished plaintiff an abstract of title showing title in Elizabeth Gruber, deceased, and showing there had been no administration on her estate so as to bar debts; that the parties agreed that defendants would have her estate administered and the sale would [831] be completed when administration was closed if there were no liens against the land.
Upon the close of administration plaintiff presented a deed to defendants requesting them to execute it but they refused. Judgment was for plaintiff ordering specific performance and defendants have appealed.
[1] Defendants contend the evidence was not sufficient to support the amendment to plaintiff's petition alleging the modification of the contract so that plaintiff was bound by the contract, as originally written, to pay the purchase price on or before March 1, 1941, which he failed to do. As a result, in view of the provision time was of the essence, plaintiff's failure to perform his part on the date specified defeats his right to specific performance. This is in accord with the established rule. But such rule does not apply when the default is waived or excused. Wimer v. Wagner,
[2] According to the evidence plaintiff was given an abstract of title extended to include the date of death of defendants' mother. Plaintiff testified he told defendants after receiving the abstract and before the date the deal was to be closed "the title was not right and they agreed to have the estate administered and make the title right . . . They said they would administer if we would pay the probate costs." Plaintiff agreed to pay such costs. Plaintiff told defendants he was ready and able to pay the purchase price "when the title was good." Administration was taken out by defendants. After administration was completed defendants refused to convey the land to plaintiff. One of the defendants testified that they refused because "we had changed our minds."
Plaintiff's testimony was neither disputed nor denied. The chancellor was convinced of its credibility. We find it sufficient to show performance by plaintiff on the stated date was waived and postponed until after the administration on Elizabeth Gruber's estate was completed.
[3] Such course of conduct was logical under the contract as it provided for good title in Elizabeth Gruber deceased. The provision for a good title in a deceased is ambiguous. A good title has been held to be synonymous with a marketable title and ordinarily a title *1037
is not marketable when administration has been omitted. Kling v. Realty Co.,
As the contract provided for "good" title in the deceased the case of Henderson v. Beatty,
[4] Defendants point out there was no consideration for the waiver. A waiver of time of payment, if relied on, is sufficient to prevent a vendor from asserting the purchaser is in default although no consideration has been given for the waiver. Casner v. Meyer (Mo. App.), 191 S.W. 1119. See also Stout v. Edwards (Mo. App.), 210 S.W. 128 and Whitsett v. People's National Bank,
The judgment is affirmed. All concur.