186 Mo. App. 584 | Mo. Ct. App. | 1915
— This is a suit for money had and received. The money sued for came into the hands of defendant under a contract which plaintiff thereafter rescinded. The trial was had before the court without a jury, where the finding and judgment were for defendant, and plaintiff prosecutes the appeal.
It appears that plaintiff and defendant entered into a written contract concerning the purchase of defendant’s farm of 238 acres in Lincoln county. By the terms of the contract, plaintiff purchased defendant’s farm at the agreed price of $11,700, and paid $500
Plaintiff paid $500 earnest money on the bargain when the contract was entered into several months before, and it appears that he was ready, able and willing to complete the purchase on March 1,1911, and, indeed, extended the time until noon of March 2 of that year, to enable defendant to clear several defects in the title. Although there is no stipulation in the contract requiring defendant to furnish an abstract, it appears that he did so and plaintiff’s attorney examined it prior to March first. On such examination several minor defects in the paper title were discovered and pointed out, and it appears defendant corrected all of them save one which relates to the apparent outstanding title of a one-eighth interest in sixty-five acres of the land, which title, it is said, according to the records, resides in one Joseph Story. It appears that defendant had claimed to own the land for more than thirty-two years under a general warranty deed, and that, though he had resided thereon, cultivated it, paid the taxes, and exercised the usual acts of ownership with respect to it during' that time, plaintiff objected to the title tendered because of such apparent outstanding one-eighth interest in sixty-five acres in Joseph Story. After waiting until noon of March 2,
The case concedes that Joseph Story derived from his grandmother, through descent, in 1806, title to a one-eighth interest in the parcel of land referred to, -consisting of sixty-five acres, and no deed from him appears. But, on the trial, the court received evidence showing that defendant’s right to the identical land and interest had ripened into a complete title under the Statute of Limitations through adverse user and occupancy under claim and color of title attended with the usual indicia of ownership. But this evidence was objected to on the theory that the stipulation for a marketable title required the showing of such title by deeds or proper conveyances and excluded the idea by establishing it through user under the Statute of Limitations. Moreover, the court refused to declare the law, on plaintiff’s request, to the effect that he was not obligated to accept from defendant a title resting-as to any part of the land contracted for by him on the Statute of Limitations.
It is urged the court erred in its view of the law thus disclosed, in that the covenant for a marketable title, free of defects, implies a title to be shown in proper conveyances alone, and may not be satisfied through showing an absolutely good title under the Statute of Limitations. But we are not so persuaded. The law implies that one selling land shall furnish a good title and it is said that a good title and a marketable title are the same. [See Kent & Obear v. Allen,
The law on the subject is thus stated in 39 Cyc. 1460, 1461, 1462, 1463:
“ Where the contract expressly or impliedly calls for a record title, a title by adverse possession, prescription, or limitations, is not sufficient; but such a title is .marketable and sufficient, according to the great weight of authority, where the contract does not call for a title of record. Where there is a possibility of an outstanding title, undisturbed possession for a long period of time renders the title marketable. The vendor must, however, clearly show that the facts are such that lapse of time gives title by adverse possession and that the title is fpee from reasonable doubt. He must be able to show that the adverse claimant of the property was not under such disability that the statute would not run against him, that the possession was in hostility to such owner and exclusive, and that the time prescribed by the statute has not been prolonged by any act of the parties. The parol evidence to support such a title must be such as. cannot be contradicted and will not be difficult to obtain.”
In this view the court very properly received the evidence showing good title in the defendant under the Statute of Limitations and also in refusing the instructions requested by plaintiff, for it is obvious the title tendered by defendant was a marketable one free from defects.
The judgment should be affirmed. It is so ordered.