Summary
In Lewis v. Gray, 356 Mo. 115, 201 S.W.2d 148 (1947), this court held that absent a valid and enforceable restriction to the contrary in a contract for the sale of land, a purchaser's interest therein pursuant to such contract can be mortgaged.
Summary of this case from Fincher v. Miles Homes of Mo., Inc.Opinion
No. 39991.
April 21, 1947.
1. VENDOR AND PURCHASER: Mortgages: Vendee May Mortgage Interest. The purchaser under a contract of purchase may mortgage his interest.
2. MORTGAGES: Vendor and Purchaser: Notice: Mortgage of Vendee's Interest: Constructive Notice Through Recording. The recording of a mortgage by a purchaser under a purchase contract imparts constructive notice even though the purchase contract is not recorded.
3. VENDOR AND PURCHASER: Quieting Title: Breach of Vendor: Refusal of Purchaser to Perform: Quieting Title in Vendor Proper. Where the vendor breached his agreement to convey an unencumbered title, but the purchaser thereafter refused to perform, the trial court properly quieted title in the vendor.
4. QUIETING TITLE: Vendor and Purchaser: Attorney and Client: Lien for Attorney's Fees Properly Decreed. A lien for attorney's fees against the vendor's interest in the land was properly decreed.
5. VENDOR AND PURCHASER: Accounts Properly Adjusted. No error is shown in adjusting the accounts between the vendor and the purchaser.
Appeal from Stoddard Circuit Court. — Hon. James V. Billings, Judge.
AFFIRMED.
Frank C. Douglas for appellant.
(1) The court committed error prejudicial to appellant Gray in holding that defendant Bell under his executory contract to purchase the lands in controversy acquired "an equitable interest" in said lands which he could sell or mortgage. Wright v. Lewis, 19 S.W.2d 287, 323 Mo. 404; Congregation B'Nai Abraham v. Arky, 20 S.W.2d 899, 323 Mo. 776; Standard Leather v. Insurance Co., 131 Mo. App. 710, 111 S.W. 631; Waugh v. Williams, 119 S.W.2d 223, 342 Mo. 903. (2) The court committed error prejudicial to appellant Gray in holding that the deed of trust from defendant Bell to plaintiff Lewis, when recorded, was notice to the world of the interest of Lewis in the lands in controversy. Odle v. Odle, 73 Mo. 289; Ford v. Unity Church Society, 120 Mo. 498, 25 S.W. 394, 23 L.R.A. 561, with annotations, 41 Am. St. Rep. 711; Ellsberry v. Duval-Percival Trust Co., 282 S.W. 1054; 2 Robert T. Devlin, "The Law of Real Property and Deeds," sec. 724; Richardson v. Atlantic Coast Lbr. Co., 93 S.C. 254, 75 S.E. 371, L.R.A. 1918 C, p. 788, with annotations; Bright v. Buckman, 39 F. 243; Heffron v. Flanigan, 37 Mich. 274; Wheeler v. Young, 76 Conn. 44, 55 A. 670; Breen v. Morehead, 104 Tex. 254, 186 S.W. 1947, Ann. Cas. 1914 A, p. 1285, with annotation; Bingham v. Kirkland, 34 N.J. Eq. 229; Fowles v. Bentley, 135 Mo. App. 417, 115 S.W. 1090; Harris v. Reed, 21 Idaho, 364, 121 P. 780; Hilgedick v. Northstein, 316 Mo. 333, 289 S.W. 934. (3) The court committed error prejudicial to appellant Gray in granting a decree of forclosure. Hansen v. Humphrey, 218 A.D. 291, 218 N.Y.S. 197. (4) The court committed error prejudicial to appellant Gray in decreeing that the deed from Metropolitan to him did not convey fee simple title, and in cancelling contracts between Bell and Gray, and in holding that Gray took his deed with constructive notice of the deed of trust from Bell to Lewis. (5) The court committed error prejudicial to appellant Gray in charging him with rents collected for 1944 and 1945 from the lands in controversy; and in refusing to allow him credit for taxes paid on the lands for 1944 and 1945 prior to the lien declared in favor of Lewis.
C.A. Powell for respondent Bell.
(1) Since Bell had a contract with the Metropolitan Life Insurance Company to purchase the land involved, he had an interest in the land which he could mortgage, and the recording of the deed of trust from Bell to Lewis imparted constructive notice thereof to Gray, (who also had actual knowledge thereof). Simonson v. Wenzel, 27 N.D. 638, 147 N.W. 804; Digman v. McCollum, 47 Mo. 372; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326; Majors v. Maxwell, 120 Mo. App. 281, 96 S.W. 73; Bales v. Hendrickson, 290 S.W. 638; Hachett v. Watts, 138 Mo. 502, 40 S.W. 113; 41 C.J., p. 374, sec. 163, p. 478, sec. 394. (2) Bell was in the open possession of the land involved when he mortgaged it to Lewis, and when he had all his subsequent dealing with Gray, and when Gray acquired the deed from the Metropolitan Life Insurance Company. Therefore, when Gray acquired the deed he was chargeable with the rights and interest of Bell to the land, and Bell's interest therein was in the chain of title. Hollauer v. Lackey, 353 Mo. 1244, 188 S.W.2d 30; Langford v. Welton, 48 S.W.2d 860. (3) Since there was no intention for the beneficial title passing to Gray by the deed from the insurance company, by that deed the equitable title became vested in Bell and the legal title in Gray. Cooper v. Newell, 263 Mo. 190, 172 S.W. 326. (4) Since Gray was a real estate dealer and had a contract with Bell to sell the land before he acquired the deed from the insurance company, there was a fiduciary relationship between them. In making the false representations to Bell to the effect that Lewis was about to foreclose the deed of trust Bell gave Lewis and in advising Bell to let the insurance company deed the land to Gray, Gray abused that confidential or fiduciary relationship. The obtaining of the deed under such circumstances created a constructive trust and constituted Gray a constructive trustee for Bell. Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981; Thieseler v. Helmbacher, 350 Mo. 807, 168 S.W.2d 1030. (5) When Gray falsely told Bell "that Lewis was going to be up the next morning and start foreclosure", he made misrepresentation as to an existing fact, namely, the state of mind or the intention of Lewis. Collins v. Lindsay, 25 S.W.2d 84; Metropolitan Pav. Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815; State ex rel. St. Louis-S.F. Ry. Co. v. Daues, 316 Mo. 474, 290 S.W. 425; Jeck v. O'Meara, 341 Mo. 419, 107 S.W.2d 782; 26 C.J., pp. 1093-5, sec. 26, nn. 93 and 7. (6) The contract made between Gray and Bell at Benton, Missouri, provides that if a clear title to the land could not be conveyed to Gray, the contract became null and void. Since Lewis' deed of trust is a valid lien, that contract is void. Furthermore, Gray himself has not complied with the contract in that he has never deeded the 80-acre to Bell as he agreed to do in that contract. (7) If the trial court erred in decreeing the title to the land to be vested in Bell, then, of course Bell's attorney, C.A. Powell, has no lien on the land. But, since the court by its decree declared the title to be in Bell, and we think properly so, his attorney has a lien on the property for his fee according to his agreement, as to Bell and his creditors. Young v. Levine, 31 S.W.2d 978, 326 Mo. 593; Schempp v. Davis, 211 S.W. 728, 201 Mo. App. 430; Neeper v. Heinback, 249 S.W. 440. (8) And the attorney may establish his lien by a motion filed in the original cause. Nelson v. Massman Constr. Co., 120 S.W.2d 77; Certiorari quashed State ex rel. Massman Co. v. Shain, 130 S.W.2d 491, 344 Mo. 1003; State ex rel. Anderson v. Roehrig, 8 S.W.2d 998. (9) Furthermore, since the trial court properly decreed the title to be vested in Bell, the appellant Gray is not prejudiced by establishing the lien of the attorney, and he has no right to complain thereof. Only Bell and his creditors can complain of that. Mo. R.S.A., Sec. 847.126; State ex rel. St. Louis Union Trust Co. v. Sartorius, 164 S.W.2d 356, 350 Mo. 46.
R.E. Bailey of Bailey Bailey and W. Leon Smith for respondent Lewis.
(1) Plaintiff's deed of trust was an instrument suitable to be recorded, and it was the duty of the Recorder to record it. Secs. 3426, 13161, R.S. 1939. (2) The recorded deed of trust of plaintiff was notice to defendant Gray of the interest of the plaintiff in the land in controversy. Sec. 3427, R.S. 1939; Digman v. McCollum, 47 Mo. 372; Simonson v. Wenzel, 147 N.W. 804; Garrett v. Wiltse, 252 Mo. 568, 161 S.W. 694; Case v. Goodman, 250 Mo. 46, 156 S.W. 694; Patterson v. Booth, 103 Mo. 402, 15 S.W. 543; Dickerson v. Bridges, 147 Mo. 235, 48 S.W. 825; Tydings v. Pitcher, 82 Mo. 379; Orrick v. Durham, 79 Mo. 174; Cockrill's, Adm., v. Banc, 94 Mo. 444, 7 S.W. 480. (3) Actual knowledge on the part of defendant Gray of the real estate sales contract held by defendant Bell from Metropolitan Life Insurance Company made it unnecessary to record the real estate sales contract. Sec. 3428, R.S. 1939; Lee Boutell v. Cement Co., 341 Mo. 95, 106 S.W.2d 451; Taaffe v. Kelly, 110 Mo. 127, 19 S.W. 539; Sensenderfer v. Kemp, 83 Mo. 518. (4) The interest Bell had under his real estate sales contract could be sold or mortgaged. Digman v. McCollum, 47 Mo. 372; Simonson v. Wenzel, 147 N.W. 804; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326; 66 C.J., pp. 703, 707; 2 Pomeroy's Equity Jur. (5th Ed.), secs. 368, 372; Standard Oil Co. v. Dye, 223 Mo. App. 926, 20 S.W.2d 946; Manning v. Insurance Co., 123 Mo. App. 456, 99 S.W. 1095; Majors v. Maxwell, 96 S.W. 731; Block v. Morrison, 112 Mo. 343, 20 S.W. 340; Chapman v. Great Western Gypsum Co., 216 Cal. 420; 41 C.J. 374, sec. 161, 163; 36 Am. Jur. 708, sec. 35. (5) The decree of the court is correct when it directs the foreclosure of plaintiff's mortgage. Digman v. McCollum, 47 Mo. 372; Simonson v. Wenzel, 147 N.W. 804; Beckman v. Beckman, 58 S.W.2d 490. (6) On the question of passing of title at time of sale. Spitcaufsky v. Hatten, 182 S.W.2d 86; Towers v. Lusby, 175 S.W.2d 921; Hernadez v. Prieto, 162 S.W.2d 829; State ex rel. v. Baumann, 153 S.W.2d 31; Savings Trust Co. v. Skain, 131 S.W.2d 566. (7) The effect of special warranty deed. McAboy v. Parker, 187 S.W.2d 207.
A.J. Lewis instituted this action November 15, 1944, against W.F. Bell, Luther Gray, and the Metropolitan Life Insurance Company, a corporation, hereinafter designated "Metropolitan," to enjoin the execution of a deed by the Metropolitan to defendant Gray, to determine the interest of the parties in 547 acres of land in Stoddard county, Missouri, known as the Buck farm, and to foreclose a deed of trust against the interest of Bell in said real estate. A sketch of the facts here may afford a readier grasp of the case. Metropolitan held the fee title to the land. Bell held a contract to purchase it from Metropolitan. Thereafter, Bell executed a deed of trust against whatever interest he had to secure an indebtedness to Lewis. Later Bell assigned his contract to purchase to Gray; Gray discharged the obligations thereunder to Metropolitan, received a deed from Metropolitan and executed [149] a purchase money note and deed of trust to Metropolitan to secure the payment of the balance due.
Lewis' suit was too late to stop the deed from the Metropolitan to Gray and that feature dropped out of the case. The right of the Metropolitan to the payment of the purchase money balance due was not questioned and it remained in the case as a nominal party only.
The case presents two controversies: One, between Lewis and Gray, as indicated above. The other, between Bell and Gray, originating in the complaint in Bell's answer against Gray wherein Bell asked the cancellation of his assignment to Gray and the deed from Metropolitan to Gray on the ground Gray had misrepresented certain facts; the equitable adjustment of the transaction and subsequent incidental transactions between Gray and Bell and, broadly, that title be determined accordingly and possession restored to him. Bell's answer admitted all the allegations in Lewis' petition.
Gray's separate answers sought the dismissal of Lewis' petition; denied the charges in Bell's complaint, and set up his willingness to perform his contract with Bell, charged Bell with failure to perform, including a failure to remove the cloud of the deed of trust held by Lewis, asked that the same be decreed "no lien" and for general relief.
The decree vested title in "W.F. Bell or the purchaser at the foreclosure sale" therein ordered upon the execution of a new note and deed of trust to Metropolitan, Gray's note and deed of trust thereupon to be cancelled. The decree ordered the foreclosure of Lewis' deed of trust, the same to be subject to the unpaid balance due Metropolitan, which was decreed a first lien, and also subject to $2,521, and interest, representing Gray's payments to Metropolitan, which was decreed a lien subject to the lien of Metropolitan. The decree cancelled the contracts between Bell and Gray connected with the transaction, gave Gray judgment against Bell for $110.62, decreeing the same a lien (subject to the three liens mentioned above) against Bell's interest in the land, and decreed a lien against the land in favor of Bell's attorney for one-half of Bell's equity in the land, subject to the liens hereinabove mentioned, and assessed the costs against Bell.
Gray prosecutes the appeal. He makes several attacks on the decree in favor of Lewis, some of which overlap. He contends, in substance, that error was committed in holding Bell's interest under the executory contract to purchase could be sold or mortgaged by Bell, in holding Bell's deed of trust to Lewis, when recorded, was notice to the world of Lewis' interest in the land and that Gray took subject thereto, and in decreeing the foreclosure of said deed of trust. If Gray took subject to Bell's deed of trust to Lewis, the above contentions of Gray fall.
On May 14, 1941, the Metropolitan contracted to sell the 547 acres of land to W.F. Bell and Elna Bell, his wife, for $18,700, and interest, payable in installments as therein specified, the down payment being $1,740. The contract provided for title remaining in the vendor, and the vendee agreed not to attempt to encumber or permit liens to attach in such manner as to affect the vendor's title. Mention is made of this provision in Gray's brief but it is plain that the restriction is against acts tending to affect the vendor's title and not the interest of the vendee. The right of either party under the contract was to pass to the successor or assign of said party. Bell took possession May 15, 1941. Upon performance and surrender of his copy of the contract by the vendee, the vendor agreed to convey by warranty deed; subject, however, among other things, to any liens created by the vendee; and also agreed, as modified later, upon the reduction of the principal amount due under the contract to $13,000, to execute the warranty deed aforesaid and accept a $13,000 purchase money note secured by a purchase money mortgage or deed of trust on the land. The contract expressly provided that such vendor's deed would be subject to the title of anyone claiming under the vendee. This real estate sale contract was not acknowledged by the vendor and was never recorded. W.F. Bell and Elna Bell were [150] divorced and Elna Bell deeded any interest she might have under the contract to W.F. Bell.
Bell contracted on August 1, 1942, to sell the land to G.C. Wadley for $34,145, Wadley depositing $3,000 in escrow. Thereafter Wadley instituted suit in Arkansas to recover the $3,000. Bell filed answer and cross-complaint, seeking specific performance. A demurrer was sustained to the cross-complaint but upon appeal this judgment was reversed and the cause remanded for trial. See Bell v. Wadley (Ark.), 177 S.W.2d 403, for greater detail of fact. We understand this controversy was finally settled by Wadley paying the costs and $650 attorney fees. Fletcher Fisher, a realtor, brought about the transaction between Bell and Wadley. He accepted Bell's $800 note and the exclusive listing of the real estate for the commission due him in the transaction.
W.F. Bell and A.J. Lewis had a number of business transactions. They need not be detailed here as the preponderance of the evidence sustains the court's finding establishing Bell's indebtedness to Lewis. At the time of the Bell-Wadley settlement, Bell and Lewis determined to have an accounting and evidence all of Bell's indebtedness to Lewis in one note. This resulted on May 22, 1944, in W.F. Bell and Audrey Bell, his then wife, executing and delivering to Lewis their 8% note for $12,763.19, payable November 1, 1944, and a deed of trust against their interest in and to the real estate in question to secure the same (expressed in said deed of trust as set out in the margin). This deed of trust was duly recorded in Stoddard county, Missouri, on May 23, 1944, and Lewis seeks its foreclosure.
"The same being an equitable title and a right to purchase under the provisions of a written real estate contract executed by Metropolitan Life Insurance Company on the 14th day of May, 1941, wherein said Company agreed to sell to W.F. Bell the lands described herein"; and also: "For the same consideration, we set over, transfer and assign unto the trustee for the benefit of the beneficiary to be named herein all our rights under the written contract above referred to, subject to the conditions hereinafter set forth in this instrument."
An agreement of September 29, 1944, was to the effect that Bell had an option to purchase a certain 80 acres owned by Gray for $6,000, it being understood that it was necessary for Bell to sell his interest in the 547 acres to purchase the 80, Gray undertaking to sell said 547 acres and giving Bell the privilege of living on the 80 acres until January 1, 1945, et cetera. Bell was needing money. He importuned Fisher to sell the 547 acres. Fisher, on October 9, 1944, suggested that Gray make arrangements to purchase the land. Gray telephoned the Metropolitan at Memphis to ascertain what would be required to take up Bell's rights. Gray got in touch with Bell. They agreed to an exchange of farms — Gray's 80 acres and $1,000 cash for Bell's interest in the 547 acres.
There is some testimony of record that Gray, in connection with this transaction, misrepresented to Bell that Lewis was coming over the following day, October 10th, to start foreclosure proceedings under Bell's deed of trust. Gray denied this, as well as any knowledge of the deed of trust; and the court, in its findings, did not find Gray guilty of misrepresentations in connection with the transaction. Gray made inquiry concerning the records in Stoddard county. He ascertained that Metropolitan held title to the 547 acres. He did not find Bell's contract to purchase or deed of trust to Lewis of record. There was testimony that the deed of trust was not inquired about. Gray, Bell, and Bell's wife, together with realtor Fisher, went to the office of the Metropolitan in Memphis on October 10, 1944. Bell claimed he had lost his copy of the contract to purchase. The Memphis manager of Metropolitan had no objection to Gray purchasing the land. Bell and his wife, on a form furnished by Metropolitan, assigned their interest in the real estate purchase contract to Gray. Gray paid Metropolitan $1,668.50 due under Bell's contract, and made application for a deed and, in connection therewith, secured the $13,000 unpaid balance with a deed of trust on the land. Bell and Gray put their agreement of October 9th into writing on [151] October 11, 1944. Gray's performance was expressly conditioned therein upon his receiving a fee simple title "free and clear of all encumbrances except the deed of trust" to Metropolitan to secure the purchase price balance due; otherwise said contract was to be "null and void." There were other details connected with the transactions. Bell transferred the balance due him for rents on the 547 acres to Gray to pay Fisher's $800 note and $300 rent due Gray. Gray advanced Bell a total of $1,655 prior to October 21, 1944, when he received a letter from the Metropolitan advising that the abstract showed the deed of trust from Bell to Lewis. Gray ceased performance on his part. Metropolitan approved the sale to Gray, executed its deed to him, and placed the deed and his deed of trust of record in Stoddard county, Missouri, on November 15, 1944.
Gray stresses the following statement in cases between vendor and vendee in support of his contention Bell could not sell or mortgage his interest under his contract with Metropolitan: "The equitable title of the vendee under a contract of sale arises, if at all, through performance, or an unconditional tender of performance, on his part." Wright v. Lewis, 323 Mo. 404, 410, 19 S.W.2d 287, 289[3], quoted in Waugh v. Williams, 342 Mo. 903, 911, 912, 119 S.W.2d 223, 227 [11]. See 1 Jones, Cyc., Real Property (1939), 594, Sec. 403. These cases involved the right of the vendee to the title of the vendor under the contract of sale and purchase; i.e., when the vendee could claim the title against the vendor; and, of course, in the absence of performance or a tender of performance of the covenants of the contract, the vendee was in no position to hold the legal title of his vendor.
The instant issue is concerned with the interest acquired by the vendee under a contract for purchase, not the interest retained by the vendor. Absent a valid and enforceable restriction contra in the contract of sale and purchase: "The purchaser under an executory contract for the sale of land, or a bond for title, being in possession and having partly performed his part of the contract, although the legal title remains in the vendor, has an interest in the premises which he may mortgage to a third person." 41 C.J. 374, Secs. 161, 163. See also 41 C.J. 478, Sec. 394. We consider this has been the law of Missouri for many years when applied to transactions between private citizens, although some have been inclined to extend the statement relied upon by Gray beyond the vendor-vendee cases wherein it was made. Section 3401, R.S. 1939, provides: "Conveyances of lands, or of any estate or interest therein, may be made by deed executed by any person having authority to convey the same . . ." G.S. 1865, p. 444, Sec. 1. See Brant v. Robertson (1852), 16 Mo. 129, 149; Digman v. McCollum (1871), 47 Mo. 372, 376. Additional authorities are mentioned in the margin.
Block v. Morrison, 112 Mo. 343, 20 S.W. 340; Lambert v. St. Louis G. Ry. Co., 212 Mo. 692, 111 S.W. 550; Levine v. Humphreys, 297 Mo. 555, 567(II), 249 S.W. 395, 398(2); Beckman v. Beckman (Mo. App.), 58 S.W.2d 490, 491[1], citing cases; 66 C.J. 702, Sec. 262; 36 Am. Jur. 708, Sec. 35; 55 Am. Jur. 835, Secs. 420, 423; 2 Pomeroy's Equity Juris. (5th Ed.), Sec. 368; 5 Tiffany, Real Property (3rd Ed.), Sec. 1384; 9 Thompson, Real Property (1940), Secs. 4785, 4787; 1 Jones, Mortgages (8th Ed.), Sec. 190; 17 Columbia Law Rev. 323.
Gray contends the court erred in holding the recording of Bell's deed of trust to Lewis imparted constructive notice to him. This is on the theory he was an innocent purchaser for value and was not required to search for conveyances from his vendor prior to the time the vendor acquired the title. Odle v. Odle, 73 Mo. 289; Ford v. Unity Church Soc., 120 Mo. 498, 512, 25 S.W. 394, 397, 398; 2 Devlin, Deeds (3rd Ed.), Sec. 724. The cases relied upon do not conflict with the cases infra; they differ on the facts. Metropolitan's contract to sell to Bell, as stated, was never recorded. Bell's deed of trust to Lewis was acknowledged, and was a proper instrument for record. Secs. 3426, 13161, R.S. 1939. It was recorded. On October 9, 1944, Gray telephoned Metropolitan [152] to ascertain how much had to be paid under Bell's contract to receive a deed. He was advised by Metropolitan and also by Fisher to check the records. He proceeded to the Recorder's office to make inquiry but testified Bell's deed of trust to Lewis was not found. The contract Bell assigned to Gray recognized Bell's right to vend his interests. Gray, while questioning the title passing from Bell to Lewis, contends for that interest passing to him by virtue of the transfer from Bell of his interest and the resultant transfer of Metropolitan's title to him. Bell's interest was as vendible to Lewis as it was to Gray. Gray, of course, knew of Bell's possession of the land prior to October 9, 1944. See, as to effect of this, Hallauer v. Lackey, 353 Mo. 1244, 188 S.W.2d 30; Langford v. Welton (Mo.), 48 S.W.2d 860. Gray was purchasing two interests in the land; i.e., Bell's interest under the contract of purchase, an equitable interest, and the legal title held by Metropolitan. It was as much his duty to search the record for transfers affecting the equitable interest as it was his duty to search the record for transfers affecting the legal title. Each was in his chain of title. This is a distinguishing feature between the two lines of authority presented. A case in point is Digman v. McCollum, 47 Mo. 372, 374, 377, holding the purchaser at a sale by the trustee under a duly recorded deed of trust executed by a vendee against his interest in a "title bond," which bond for title was not recorded, was entitled to have title vested in him upon tender of performance under the bond for title to one who, subsequently to the recording of the deed of trust (as Gray in the instant case), purchased the vendee's interest in the bond for title and, performing the contract for purchase, received a deed in fee from the vendor. There was evidence of record that Gray had actual knowledge of Lewis' lien against Bell's interest prior to Bell's transfer to Gray. Gray's contention is overruled. See also Secs. 3427, 3428, R.S. 1939; 45 Am. Jur. 475, Sec. 99; Simonson v. Wenzel, 27 N.D. 638, 147 N.W. 804, L.R.A. 1918 C, 780; Annotation L.R.A. 1918 C. 787; Hackett v. Watts, 138 Mo. 502, 40 S.W. 113; Patterson v. Booth, 103 Mo. 402, 15 S.W. 543; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326; Lee Boutell Co. v. C.A. Brockett Cement Co. 341 Mo. 95, 116, 106 S.W.2d 451, 460[7].
Error is charged in decreeing the title in Bell and decreeing that Gray had no right, title or interest other than the lien rights mentioned in the decree. We are referred to the authorities hereinbefore considered. The agreement between Gray and Bell of October 9th for the exchange of Gray's 80 acres for Bell's 547 acres, as reduced to writing on October 11, 1944, contemplated that Gray receive a fee simple title subject only to his purchase money deed of trust to Metropolitan and, in the event Gray's title to the 547 acres was not free and clear of all encumbrances except said deed of trust to Metropolitan, the contract between Gray and Bell was to be null and void. When Metropolitan advised Gray about October 21, 1944, of Bell's deed of trust to Lewis, Gray refused further performance on his part. He, for instance, never delivered or tendered a deed covering his 80 acres to Bell. Gray was not entitled to retain the advantages without discharging the burdens of his contract. The decree sought to restore the parties to their position prior to the agreement to exchange farms, adjusting the transactions subsequently occurring between them and springing from the contract in accord with equity. Gray's cases on the point are to the effect that, when the vendor cannot convey a good and perfect title as here, the vendee must perform and accept such title as the vendor is able to give if he chooses to retain the land; or, if not, he may rescind the contract. Consult Waugh v. Williams, 342 Mo. 903, 911, 119 S.W.2d 223, 227[11] quoting and citing other cases. They do not disclose error.
Gray has no just complaint against the charging of the attorney fees for services rendered Bell against Bell's interest in the land.
Gray complains of the adjustment of the account between himself and Bell, stressing only the taxes he paid for 1944 and 1945. The account, including taxes approximating $540, resulted in Bell owing Gray $110.62. Gray says the taxes should [153] be allowed as a lien ahead of Lewis' deed of trust. Bell expressly agreed in the deed of trust to pay all taxes. Gray holds under Bell. The point is not developed and error is not established.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.