Martin v. Witty

78 S.W. 829, 104 Mo. App. 262, 1904 Mo. App. LEXIS 478

• Court: Missouri Court of Appeals
• Decided: February 2, 1904
• Status: Published

Opinions

BLAND, P. J.

One Ward made his appearance in Monroe county, Missouri, having in his possession fraudulent abstracts of titles to lands claimed to be situated in the State of Georgia, and designated as head right lands. Relying upon the abstracts, several gentlemen in Monroe county were induced to trade in these lands. J. M. Jayne acquired a deed to the lands and conveyed them to T. R. Senter. Senter, for a valuable consideration, conveyed them to plaintiff who, after receiving his deed, went to the State of Georgia to look up the lands and the title. He ascertained that the abstracts of title were fraudulent and that the head right through which the pretended title was derived had been fraudulently surveyed and the survey declared void and set aside more than one hundred years before the making of the abstracts, as is shown by the following certificate in respect to the title to the lands:

‘ ‘ State of Georgia.

‘‘ Office of Secretary of State.

“I, Philip Cook, Secretary of State of Georgia, do hereby certify: That the grants of land to John Hanson in Franklin county, Georgia, one for two thousand acres and the other for five thousand acres, both grants in the year 1787, were based on fraudulent surveys and were declared null and void by an act of the General Assembly of Georgia, approved December 28, 1794, as shown by the records in this department.

“In Testimony Whereof, I have hereunto set my hand and the seal of my office, at the capitol in the City of Atlanta, this twenty-second day of June, in the year of our Lord one thousand nine hundred and one and of the independence of the United States of America the one hundred and twenty-fifth.

“Philip Cook,

“Secretary of State.

“Seal of Georgia.”

After learning that he had no title plaintiff returned to Missouri and made a demand on Jayne and the real estate agents who had figured in the sale of the lands, informing them of the swindle that had been perpetrated. These gentlemen, in compromise and settlement of the matter with plaintiff, entered into the following contract:

££ This contract, made and entered into this twenty-seventh day of February, 1901, by and between A. J. Martin, of Clark county, Missouri, party of the first part, and Lee T. Witty, P. G. Carder and T. J. Brumback, of the county of Scotland, State of Missouri, parties of the second part, witnesseth: That the party of the first part for and in consideration of the sum of five hundred dollars to be paid as hereinafter set forth, agrees to make his quitclaim deed to the south one hundred and eighty acres, the north one hundred and sixty acres of the east five hundred acres of a, tract of land known as the John Hanson grant, being the lot known as the grant No. 86, and deeded to party of the first part by Thomas R. Senter and wife, said deed to be made to John M. Jayne and wife. This five hundred dollars is to be paid by parties of the second part on or before the first day of May, A. D. one thousand nine hundred and one (1901). Party of the first part accepts said five hundred dollars in full of all demands of each and every kind by reason of any and all trades-made by him throught parties of the second part. This contract to be deposited with the Farmers’ Exchange Bank of Memphis, Mo.

“A. J. Martin.

“Lee T. Witty.

“P. G. Carder.

“T. J. Brumback.”

Plaintiff made the quitclaim deed as agreed and forwarded it to the Farmers’ Exchange Bank of Memphis, Mo. The cashier of the bank notified Jayne on several occasions that the deed was .at the bank, but Jayne did not call for it. The contract was not deposited with the bank as was agreed, but was handed to Jayne who retained it in his possession and produced it at the trial. Carder, Jayne and Witty, over the objections of the plaintiff, testified that one of the conditions of the contract was, that plaintiff should furnish proof that there was no such land as described in the abstracts and in his deed in the State of Georgia, and that the contract was not to be delivered until this condition was complied with. The verdict was for the defendant. Plaintiff appealed.

Plaintiff assigns as error the admission of parol evidence to vary the terms of the contract. On the erroneous assumption that the contract was to be held in escrow by the bank, the defendants were permitted to offer parol evidence to show that all the terms agreed upon between the parties were not written in the contract. When a written undertaking is deposited with a third party to be held by him until some act is done, or some condition is performed, parol evidence is admissible to show the act and its performance, or to show performance of the condition for the purpose of showing

that the party suing is entitled to enforce the contract. But parol evidence is not admissible for the purpose of engrafting upon the contract itself an essential condition thereof, or to vary its terms. Such evidence would violate the well-settled rule that parol evidence is not admissible for the purpose of varying, contradicting, adding to or subtracting from the terms of a written contract that is complete in itself. The contract sued on shows on its face that it was not to be deposited with the bank in escrow, but for the convenience of the parties and for the purpose of making the bank the medium through which the deed to Jayne should be delivered and the five hundred dollars paid to plaintiff when he should make and deliver the deed to the bank. Plaintiff complied with the terms of the contract on his part by executing and delivering the deed to the bank to be delivered by it to Jayne and having complied with the contract on his part, the defendants became legally bound to pay him the five hundred dollars. They have failed to perform this obligation and the record shows they have interposed no legal or equitable defense to the plaintiff’s demand. The judgment is therefore reversed and the cause remanded with directions to the circuit court to enter judgment for plaintiff for five hundred dollars with six per cent interest thereon from the date of the commencement of the suit to the date when judgment shall be entered.

Reyburn, J., concurs; Goode, J., dissents.