Opinion
No. 40740.
September 13, 1948.
1. SPECIFIC PERFORMANCE: Vendor and Purchaser: Frauds, Statute of: Failure of One Party to Join: Contract Binding. The fact that one of the parties to a contract to convey land was of unsound mind and unable to sign the contract does not prevent it from being a binding contract. The Statute of Frauds requires the contract to be signed only by the parties to be charged therewith.
2. SPECIFIC PERFORMANCE: Vendor and Purchaser: Death of Insane Cotenant: Specific Performance Decreed. Property was jointly owned by defendant and her insane mother, who has since died, vesting the entire title in defendant. Prior to the mother's death a written contract to convey the property to plaintiffs was treated as binding by defendant, and attempts had been made to cure the title. Plaintiffs are entitled to a decree of specific performance against defendant.
Appeal from Stoddard Circuit Court. — Hon. James V. Billings, Trial Judge.
REVERSED ( with directions).
C.A. Powell for appellants.
(1) Since the respondent signed the contract and delivered it to the appellants, the contract is binding upon her and it is presumed to be binding at that time, and the burden is on the respondent to prove that it was understood and intended that she not be bound by it until and unless her mother. Maude Keltner, also signed it. State ex rel. Goodman v. Regent Laundry Co., 196 Mo. App. 627, 190 S.W. 951; Muehlbach v. Missouri Kansas Interurban Ry. Co., 166 Mo. App. 305, 148 S.W. 453; State ex rel. Moore v. Sandusky, 46 Mo. 377; 13 C.J., pp. 305-6, sec. 128. (2) Since the respondent was the owner of the property involved when the suit was filed, specific performance lies against her even though she did not have all the title to the property when the contract was made. 58 C.J., p. 925. sec. 88, n. 6; Hume v. Hopkins, 140 Mo. 65, 41 S.W. 784; Sec. 3497, R.S. 1939. (3) Even before the death of Maude Keltner, the appellants were entitled to specific performance against the respondent; Since they were willing to comply with the contract and accept such title as the respondent had and could convey, even though she could not convey good title at the time and even though she had not obtained a deed from one brother-in-law. State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878; Tebean v. Ridge, 261 Mo. 547, 170 S.W. 871; Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S.W. 480; Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220; 58 C.J., p. 900, sec. 55. (4) And, since they were willing to accept such deed from the respondent subject to the deed of trust to the Citizens Bank of Dexter and to let the title be cleared by the foreclosure of the same. Same authorities.
M. Walker Cooper for respondent.
(1) Since the purported contract shows on its face that it was to be executed by two parties of the first part, both of whom had title to the lot, and that it was executed by only one of those two parties, it was inchoate and incomplete and never took effect as a valid and binding contract, for it is held in numerous cases that where an instrument has been executed by only a portion of the parties between whom it purports to be made it is not binding on those who have executed it. 13 C.J., sec. 128, p. 305; 17 C.J.S., sec. 62(a), p. 411; Arnold v. Scharbauer, 116 F. 492; Mullarky v. Young, 100 P. 709; Ely v. Phillips, 109 S.E. 808. (2) Since the purported contract shows on its face that the parties of the second part were attempting to contract for the purchase of the whole title and not for the purchase of only whatever title the respondent, Pearl Keltner, then had, and that the writing did not bind Maude Lawrence Keltner, the other owner of the title, who did not sign it, the purported contract was inchoate and incomplete and never took effect as a valid and binding contract. 13 C.J., sec. 128, p. 306; 17 C.J.S., sec. 62(a), p. 412; Thornhill v. Herdt, 130 S.W.2d 175; Arnold v. Scharbauer, 116 F. 492; Mullarky v. Young, 100 P. 109; Ely v. Phillips, 109 S.E. 808. (3) Since the appellants, as parties of the second part, did not intend to become bound by the purported contract to purchase only whatever interest the respondent, Pearl Keltner, then had in the property, unless they could also acquire whatever interest or title was then held by respondent's mother, Maude Lawrence Keltner, who did not sign the instrument in writing, the purported contract was inchoate and incomplete and never did take effect as a valid and binding contract. 13 C.J., sec. 128, p. 306; 17 C.J.S., sec. 62(a), p. 412; Thornhill v. Herdt, 130 S.W.2d 175; Arnold v. Scharbauer, 116 F. 492; Mullarky v. Young, 100 P. 709; Ely v. Phillips, 109 S.E. 808. (4) Since the appellants never did at any time offer to comply with the purported contract, as written and executed, prior to the death of respondent's mother, Maude Lawrence Keltner, but insisted upon acquiring by some method or other whatever interest respondent's mother, Maude Lawrence Keltner, then had in the property, appellants demonstrated the intent to acquire the whole title, as it then existed by the purported contract and it was just as essential to the finality and completeness of the contract that all of the parties intended should be bound as it was that all of the terms of the contract should be definitely agreed upon. Thornhill v. Herdt, 130 S.W.2d 174. (5) Since the appellants, almost immediately after obtaining the purported contract, began attempts to substitute other or different contracts and to change, alter and add to the purported contract, such attempts to substitute other or different contracts and to change, alter and add to the purported contract showed appellants' construction of the deal for the property and appellants' intent to obtain the whole title to the lot although they had no signed contract from Maude Lawrence Keltner for whatever title or interest she had in the lot, and that the purported contract is not final and complete for in order for the parties of the first part to accept the proposal of the parties of the second part to purchase the property, it was essential to the finality and completeness of the acceptance that both of the parties of the first part should be bound by the written instrument. Thornhill v. Herdt, 130 S.W.2d 175; Mullarky v. Young, 100 P. 709; Ely v. Phillips, 109 S.E. 808; Arnold v. Scharbauer, 116 F. 492. (6) Since the purported contract, as written and executed, was not mutually binding upon the respondent and upon the appellants, because it was not signed by Maude Lawrence Keltner, and since no mutual promises existed between the respondent and the appellants requiring the appellants to accept the title of respondent alone, without the title of Maude Lawrence Keltner, and since the appellants did not contract to acquire the title of respondent only, as it then existed, there was no mutuality of engagement so that either the respondent or the appellants then had the right to hold the other to a positive agreement, the purported contract was without legal effect and was void. Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054; Dobbins v. City Bond Mortgage Co., 116 S.W.2d 200; Arnold v. Scharbauer, 116 F. 492; Mullarky v. Young, 100 P. 709; Ely v. Phillips, 109 S.E. 808.
This is a suit wherein plaintiffs seek specific performance of a written contract for the sale of real estate. The trial court, after a hearing, dismissed plaintiffs' petition. An appeal to this court was duly taken.
The sale contract in question was dated May 18, 1943. Plaintiffs, Herbert Thrower and Vick Hill, were described as parties of the second part; the defendant, Pearl Keltner and her Mother, Maude Lawrence [477] Keltner, as parties of the first part. The contract was signed by both plaintiffs and by defendant, Pearl Keltner. Maude Lawrence Keltner did not sign. It was conceded that she was of unsound mind at the time the contract was signed, had been so for some years prior thereto and so continued up to the time of her death which occurred shortly before the filing of this suit on May 9, 1947. Respondent in her brief insists that the contract itself shows it was incomplete and never took effect as a binding agreement. This argument is advanced solely on the theory that it was not signed by one of the parties of the first part.
We cannot agree with respondent that the contract itself shows it not to be binding. Suppose, under the terms of the agreement, respondent had tendered to appellants a good deed and title and demanded the purchase price, could appellants have successfully defended on the ground that one of the parties of the first part had not signed? We think not. See Sec. 3354, Mo. R.S.A., R.S. Mo., 1939, which provides in substance that no action shall be brought to enforce a contract for the sale of real estate unless the agreement shall be in writing and signed by the parties to be charged therewith. Under note 235, Vol. 10, page 599, Mo. R.S.A., R.S. Mo., 1939, we find cases holding that a contract need be signed only by the party to the charged. Mastin v. Grimes, 88 Mo. 478; Kludt v. Connett, 350 Mo. 793, 168 S.W.2d 1068, 145 A.L.R. 1014, 37 C.J.S. 698, Sec. 206. The contract involved in the Kludt case was for the sale of personal property but the rule is the same because of the similarity of the statutes. Compare Sec's. 3354 and 3355, Mo. R.S.A., R.S. Mo., 1939. Both sections contain the words: ". . . signed by the parties to be charged . . ."
Examining the evidence in the record we find that plaintiffs went to see the defendant for the purpose of purchasing the lot in question. Plaintiffs lived in Dexter, Missouri, and the defendant and her Mother in East St. Louis, Illinois. All parties had known each other for years and were on friendly terms. At the time the contract was entered into all parties had knowledge that defendant's Mother was of unsound mind and could not herself sign a contract. The title to the lot was in the name of both defendant and her Mother. The deed conveying the lot to them contained the following clause:
". . . that in the event of death of either of said grantees" (meaning defendant or her Mother) "before the conveyance or alienation of said premises by grantees, then in that event the survivor is to take the whole title to said premises."
The sale contract recited that plaintiffs had made a $100 down payment to defendant and the balance was to be paid on delivery of a deed. The question naturally presented itself as to how title could be conveyed to plaintiffs because of the insanity of defendant's Mother. In case defendant had died before her Mother there would have been a question as to the title. The evidence shows that after the contract was signed plaintiffs were asking that defendant comply with the agreement. She, at the suggestion of plaintiffs' attorney attempted to secure deeds from her brothers and sisters and their wives and husbands. All signed deeds except one brother-in-law. Defendant suggested that she have her Mother sign the deed and have the signature witnessed, or that she sign the deed for her Mother. Defendant, during all of this time, recognized the contract as binding and expressed in letters her desire and willingness to convey good title to plaintiffs. Illustrative of defendant's attitude is this quotation from one of her letters:
"Note the part of your letter regarding our signing the deed, I shall have to guide mothers hand. Will that be acceptable to you, Vic Herbert?
"Of recent months or of late I have been making an X for her then signing my name under Hers. When the occasion demanded her Signature.
"Want this Deed done in a way that the Boys wont have any trouble with it later on."
The fact that defendant accepted $100 as a down payment and retained the same during all of the time she was attempting to comply with the contract shows that she intended to be bound thereby even though the Mother had not signed. If defendant had been successful in obtaining [478] the signatures of all her brothers and sisters and their wives and husbands to a deed the contract would have been fulfilled within a short time after its execution. Other evidence supports the theory that defendant and plaintiffs considered the contract as binding without the Mother's signature. The evidence shows that there was a deed of trust upon the property, signed by the defendant and her Mother, which was executed prior to the time the Mother was of unsound mind. Plaintiffs suggested that defendant deliver her deed to them and then they could have the deed of trust foreclosed and thus clear the title. Defendant refused to do this solely on the ground that advertising the lot for sale under a deed of trust executed by herself would injure her credit. It was further shown in evidence that the defendant attended to all business matters for her Mother and signed her Mother's name on various occasions. Some time prior to the time this suit was filed defendant tendered to the plaintiffs the $100 she received as payment and refused to comply with the contract. It was in evidence that the lot had increased in value. Since the Mother's death plaintiffs have been willing to accept a warranty deed from the defendant, but she has refused to execute such a deed.
The question is, should a court of equity decree specific performance in the circumstances of this case. We think so. There is no reason why the defendant should not comply with her contract. She and the plaintiffs understood and knew the condition of defendant's Mother at the time the contract was signed. Defendant's letters disclose that she was under the impression that she could transfer good title by signing her Mother's name for her on the deed. The conduct of the parties and the letters written after the contract was signed convinces us that all parties considered the contract binding although the defendant's Mother had not signed. The principal defense was and is that the parties did not consider the contract as binding until all parties had signed. The evidence refutes this theory of the defendant.
Respondent cited authorities to support her contention. On examination we find they are not applicable. Take for example the case of Thornhill v. Herdt, 130 S.W.2d (Mo. App.) 175. The contract involved in that case was an agreement creating restrictions against the use of property by members of a certain race. It was a neighborhood scheme. Of course if all owners in the specified area did not sign the contract its very purpose was frustrated. The court held that the evidence showed the agreement was not binding on any of the signers unless all within the area signed. We have no fault to find with the opinion but it is not applicable to the case at hand. Neither do we find anything in 17 C.J.S. 411, 412, Sec. 62, cited by respondent, to support her contention. Defendant was bound by her contract to execute a deed conveying title to plaintiffs. Such a deed would have been valid and would have vested complete title in plaintiffs on the death of defendant's Mother. Hume v. Hopkins, 140 Mo. 65, 41 S.W. 784, l.c. 785. In 58 C.J. 925, Sec. 88, we note the rule stated as follows:
"A part owner of a tract of land who joins in a contract to sell the entire tract and subsequently becomes the sole owner may be compelled to convey the same."
See also 58 C.J. 900, Sec. 55, and Tebeau v. Ridge, 261 Mo. 547, 170 S.W. 871, l.c. 878.
In the circumstances this contract should be specifically enforced. The judgment of the trial court dismissing plaintiffs' petition is therefore reversed with directions to the trial court to set aside the order of dismissal and to enter a decree for plaintiffs specifically enforcing the contract. It is so ordered. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. Leedy, J., and Ellison, J., concur; Tipton, P.J., not sitting.