68 Mo. App. 535 | Mo. Ct. App. | 1897
This action is for damages and is based on a contract for the sale of lands. Plaintiff recovered in the trial court. Plaintiff and defendant entered into a written contract, whereby defendant sold to plaintiff seventy-five acres of land for $2,150, $50 paid in cash, on the execution of the contract, and the balance to be paid upon a compliance with other terms of the contract, as to title, including the execution of a deed for the land, conveying title in fee simple to the plaintiff. The contract contained, among other provisions, the following: “And said first party hereby agrees to furnish to said second party a complete abstract of the title to said lands, showing fee simple title
The evidence showed that .defendant was paid the sum of $50 called for in the contract as a cash payment, and that the contract, together with a warranty deed to the lands, was delivered to a third party, presumably to hold until the provisions of the contract relating to the title and the payment of the balance of the purchase money were complied with. It was likewise shown that plaintiff knew that the lands had been deeded to defendant by her father and that the deed did not convey forty acres of the tract, there having been a misdescription, the deed describing forty acres that the defendant’s father did not own. The evidence also showed that defendant had been in the open, notorious, and continuous possession of said forty acres, claiming to be the owner, for more than ten years. In other words, that plaintiff’s title, in point of fact, was good by adverse possession. It was further shown that defendant had an abstract of title made out and delivered to Mr. Rector; that he examined it and pronounced the title insufficient; that he stated that defendant could, by proper proceeding in court, have the title perfected, if, in point of fact, she had been in adverse possession the requisite period.
One of the principal points contended for by defendant is, that defendant having shown a good, legal title by adverse possession, it answered the demands of the case, and that plaintiff was not justified in rejecting the title. We are of the opinion that the terms of the contract make it unnecessary for us to decide whether a title by adverse possession, not appearing of record, will constitute a good, legal, and
A case in Massachusetts is applicable to the present question. The contract recited that: “Ten days given to examine title, and if, upon examination of the records, it shall appear that any material act or thing is necessary to be done or performed, in order to perfect the title to said premises, which the seller is unable to do or perform within a reasonable time, not exceeding sixty days from date hereof, then the sale to be void at the option of either party.” The court, in interpreting this contract (italics ours) said: “By the terms and conditions of the sale, it was implied that the purchaser should have a good title by record. No purchaser could reasonably be held to expect, from these terms and conditions, that a title by adverse possession, depending upon a long and difficult investigation of facts, would be offered to him. The title may be good, but a purchaser under such terms and condi
The point is made that this plaintiff knew of the defect in the title before and at the time when the contract was made. That fact can not avail defendant. It may have been one of the inducing causes for demanding an abstract which should be approved by an attorney after examination.
Other suggestions are also advanced, but we are satisfied that no other judgment could have been rendered than for plaintiff. It will therefore, with the concurrence of the other judges, be affirmed.
ON KEHEABING.
The effect of our considering the second branch of this case was that, though the petition may not have stated a case on the fact that Mr.-Rector had rejected the title as presented in the abstract, yet defendant failed in her defense under the contract from other considerations arising from the terms of the contract, and on which the petition undoubtedly stated a cause of action.