Opinion
No. 41728.
March 12, 1951.
The facts and holding of the opinion are adequately summarized in the headnote.
SPECIFIC PERFORMANCE: Vendor and Purchaser: Deeds: Prior Conveyance Subsequently Recorded: Defective Record Title: Specific Performance Properly Denied. Where the abstract of title showed that the vendor's grantor had executed a prior conveyance in trust which was not recorded until after the deed to the vendor, the purchaser was not required to accept such title even though the vendor testified that she had no actual knowledge of the prior conveyance when she acquired her deed. Specific performance was properly denied.
Appeal from Jasper Circuit Court; Hon. Walter Bailey, Judge.
AFFIRMED.
W.H. Foulke for appellants.
(1) In the present case, plaintiffs purchased the real estate forming the subject matter herein some time during the year of 1943 from Frances Swogger; the vendor giving deed and taking note and mortgage back for part of purchase price, both instruments being at once recorded; that some two years later, a paper writing purporting to be a trust agreement mentioning the subject matter herein by someone was recorded, said instrument would in no way affect the title since it was shown that plaintiffs, either before said purchase or after, had no knowledge of this paper until the time of making their contract with defendant. Chap. 23, Secs. 3427, 3428, R.S. 1939; Harris v. Moore, 199 S.W. 188. (2) Tender is not necessary if the defendant repudiates contract and would refuse tender if made, or makes declaration that amounts to an intended repudiation. Dichman v. Dichman, 49 Mo. 107; Goswell v. National Handle Co., 126 S.W. 969; Huth v. Picotte, 154 S.W.2d 382; Daulton v. Cauthon, 230 S.W. 358. (3) The undertakings of vendor and vendee are dependent on each other; both must make tender unless waived or relieved by acts of the other. Pioneer Mining Co. v. Price, 176 Mo. 474; Cross v. Blodgett, 64 Mo. 449. (4) Where clear title from grantor is in contract, purchaser cannot rescind because of incumbrance without first making tender of purchase price. Pioneer Mining Co. v. Price, 176 S.W. 474.
Helen E. Redding for respondent.
(1) The appellants are not entitled to specific performance of the contract because they have failed to allege and prove the three essential elements of a cause of action for this remedy, to-wit: the contract must be complete and capable of being enforced as written by the parties, the pleading and proof must be certain and definite, and the party seeking specific performance must show performance, or valid tender thereof, of the agreements to be kept by him. Lackawauna Coal Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35; Terry v. Michalak, 319 Mo. 290, 3 S.W.2d 701; Baldwin v. Corcoran, 320 Mo. 813, 7 S.W.2d 967. (2) The appellants were bound by the contract to deliver, or make valid tender of, an abstract of title showing clear record title vested in them and a warranty deed conveying to respondent an indefeasible record title as a condition precedent to performance on the part of respondent of her agreement to pay the purchase price. Danzer v. Moerschel, 214 S.W. 849; Aker v. Lipscomb, 253 S.W. 995, 300 Mo. 303; Leath v. Weaver, 202 S.W.2d 125; Reeves v. Roberts, 242 S.W. 956, 294 Mo. 593; Thomas J. Johnson Co. v. Mueller, 205 S.W.2d 521, 356 Mo. 1109. (3) The appellants, having failed to pay the full consideration for the purchase of the real estate before the trust agreement conveying title to the Conqueror Trust Company was recorded, were not bona fide purchasers for value, and respondent, being a purchaser with notice, was entitled to have any possibility of litigation growing out of the trust agreement removed from the record title before she was required to perform her agreements under her contract with appellants. Reeves v. Roberts, supra; Wallace v. Wilson, 30 Mo. 335; Trice v. Comstock, 121 F. 620, 57 C.C.A. 646, 61 L.R.A. 176; Woodbury v. Connecticut Life Ins. Co., 166 S.W.2d 552, 350 Mo. 527; Branch v. Lee, 159 S.W.2d 677. (4) The deed of trust, which was not mentioned in the contract, was a defect in title which respondent was entitled to have removed before she was required to accept conveyance of the real estate, and, no oral agreement on the part of the respondent having been pleaded, the trial court properly excluded testimony proffered by appellants tending to show she agreed to accept title subject to this encumbrance. Parsons v. Kelso, 125 S.W. 227, 141 Mo. App. 369; Montgomery v. Wise, 120 S.W. 100, 138 Mo. App. 176; McPherson v. Kissee, 144 S.W. 410; Sec. 3354, R.S. 1939; State ex rel. Place v. Bland, 183 S.W.2d 878, 353 Mo. 639. (5) Appellants failed to prove valid tender of the warranty deed, abstract of title, and other performance alleged in their petition. Having tried the case in the lower court on the theory they had made tender and it was refused by respondent, they cannot first on appeal change their theory of the case to the contention that tender would have been useless because respondent had refused to perform her agreements. 41 Words and Phrases 334; Snyder v. American Car Foundry Co., 322 Mo. 147, 14 S.W.2d 603; White v. Kentling, 345 Mo. 526, 134 S.W.2d 39. (6) Appellants failed to perform their agreements in that the abstract of title furnished to respondent was not the abstract showing clear record title called for by the contract and that no warranty deed was delivered or tendered to respondent. Having thus put themselves in default, they cannot first on appeal urge that respondent was not entitled to rescind the contract because she did not tender performance of her agreements to them. Montgomery v. Wise, supra; Norton v. W.E. Stewart Land Co., 228 S.W. 838; Huth v. Picotte, 154 S.W.2d 382. (7) The pleadings and proof show a total failure of performance on the part of appellants, which entitled respondent to rescind the contract and to be placed in statu quo by judgment of the court for return of the earnest money as asked in her counterclaim. Parsons v. Kelso, supra; Montgomery v. Wise, supra; Aker v. Lipscomb, supra; Davis v. Falor, 142 S.W.2d 76.
This is an action filed in the circuit court of Jasper County, Missouri, by the appellants to enforce specific performance of a written contract wherein the respondent agreed to purchase real estate in Joplin, Missouri, from the appellants. The respondent filed a counterclaim in which she sought the return of $50.00 she had paid as part purchase price on the contract. The trial court found the issues in favor of respondent and against appellants, and entered a judgment denying the action for specific performance and awarded respondent $50.00 on her counterclaim.
The contract out of which this cause of action arose is as follows:
"It is hereby agreed by and between Alice de Beughem, party of first part, and Myrtle Vancil Rudisaile, and George Rudisaile, her husband, parties of second part, that party of the first part has today paid to parties of second part, the sum of $50.00 receipt of which is hereby acknowledged, as first and partial payment of purchase price of $6500.00 for real estate known as 212 North Jackson Ave., Joplin. Mo.
"Parties of second part are to deliver to first party abstract of title brought down to date and warranty deed and first party is to deliver to second parties $6450.00."
Appellants furnished respondent with an abstract of title to the real estate described in the contract. Respondent submitted the abstract for examination to her attorney and received her attorney's written opinion. This opinion stated that the record title was vested in Myrtle Vancil, subject to the following liens, encumbrances and defects in title:
(1) A deed of trust, dated August 16, 1943, securing a promissory note for $2,250.00, executed by Myrtle Vancil, a single person, to Jack Maret, trustee for Frances V. Swogger.
(2) A lien for state, county and municipal taxes for the year 1948 assessed against the real estate.
(3) A trust agreement executed by Frances V. Swogger as donor on April 20, 1936, whereby she conveyed title described in the sale contract to the Conqueror Trust Company of Joplin, Missouri. This trust agreement made Frances V. Swogger the beneficiary of the trust estate, but it was not recorded until February 14, 1945. The warranty deed executed by Frances V. Swogger to Myrtle Vancil was recorded August 17, 1943. The opinion stated that whether title held by Myrtle Vancil was a valid, legal title depended upon whether or not she had actual knowledge of the trust agreement conveying title to the Conqueror Trust Company, and suggested that before a marketable title could be conveyed by Myrtle Vancil any possible interest of Conqueror Trust Company growing out of the prior trust agreement should be cleared from the record.
At the time Myrtle Vancil received the deed to the land in question in 1943 from Frances V. Swogger, she was unmarried but married appellant George F. Rudisaile before the date of the sale contract. She made a cash payment to Frances V. Swogger and gave her a note secured by a deed of trust on this property.
The evidence showed the opinion of respondent's attorney was brought to the attention of appellants and that respondent informed them she would not complete the contract because of the flaws in the title mentioned in the opinion. Appellants made no attempt to clear the record title but insisted upon completing the transaction with the title in the same condition as shown by the abstract, which respondent refused to do.
[168] It is appellants' contention that since the deed executed by Frances V. Swogger to appellant Myrtle Vancil Rudisaile was recorded August 17, 1943, the trust agreement executed by Frances V. Swogger on April 20, 1936, did not affect appellants' title because it was not recorded until February 14, 1945, and appellant Myrtle Vancil Rudisaile testified in this case that she had no knowledge of the trust agreement of 1936 until after the examination of the abstract of title by respondent's attorney.
Of course, this contention would depend upon the terms of the contract of sale entered into between appellants and respondent. It provides that appellants are to deliver to respondent "abstract of title brought down to date and warranty deed" and respondent is to deliver to appellants $6,450.00.
This contract is very brief and it does not state whether the title is to be a good, marketable title or just what kind of title the appellants had, but appellants tried this case on the theory that the abstract would show the record title to be in appellant Myrtle Vancil Rudisaile.
Section 3428, R.S. Mo., 1939, provides, "No such instrument [deed] in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record."
We have ruled that this section applies to a purchaser of real estate with knowledge from any source which should reasonably put him on inquiry as to defects in the vendor's record title, and he is charged with such knowledge as he would naturally gain by making such inquiry. Woodbury v. Connecticut Mutual Life Ins. Co., 350 Mo. 527, 166 S.W.2d 552.
It may be that appellant Myrtle Vancil Rudisaile did not have actual notice of the trust agreement or of any fact that would cause her to make inquiry. If this is true, her title would be superior to the trust agreement. But the abstract does not show these facts.
The fact that she testified at this trial that she did not know of the trust agreement until after she delivered the abstract of title to respondent does not entitle her to specific performance.
"The great weight of authority supports the rule that an abstract is an epitome of the record evidence of title; that a contract calling `for an abstract showing good title' calls for record evidence; that nothing less will `satisfy the condition no matter what the vendor's real title might be'; that `it is not sufficient that the title is good in fact — that is, capable of being made good by the production of affidavits or other oral testimony; it must be good of record.'" Danzer v. Moerschel, 214 S.W. 849, l.c. 849. See also Aker v. Lipscomb, 300 Mo. 303, 253 S.W. 995.'
The abstract of title furnished respondent shows this outstanding trustee's agreement. There is nothing in the abstract showing whether appellant Myrtle Vancil Rudisaile did or did not have any knowledge of this trustee's agreement at the time she took title to the property in question. Respondent had a right to look at the abstract to determine if this appellant had such knowledge. "If there is doubt or uncertainty about the title, the chancellor should resolve such doubt in favor of the purchaser who has refused to accept the proffered title; this upon the theory that no man should be compelled to buy a lawsuit, unless he has contracted to buy one." Reeves v. Roberts, 294 Mo. 593, 242 S.W. 956, l.c. 958.
Since the abstract shows a defect in appellants' title, the trial court correctly entered a judgment for respondent, both on appellants' action for specific performance and on respondent's counterclaim.
It is therefore not necessary to discuss other defenses raised by respondent. The judgment of the trial court is affirmed. All concur.