Murray v. Crooks

79 Mo. App. 89, 1899 Mo. App. LEXIS 239

• Court: Missouri Court of Appeals
• Decided: February 21, 1899
• Status: Published

Opinion

BLAND, P. J.

At the August term, 1896, of the Lawrence circuit court the defendant purchased the following tract or parcels of land at execution sale on a judgment against plaintiff for delinquent taxes, to wit lots 1 and 5 of northeast quarter, section 1, township 29, range 25, situated in Lawrence county. After the sale the following correspondence was had through the mails between plaintiff and defendant:

1. Letter of inquiry from plaintiff to defendant.

“Ash Grove, Mo., Sept. 2, 1896. O. Crooks, Esq., Mt. Yernon, Missouri. Dear Sir: — At the August'term of court some land was sold under a tax judgment against myself and you became .the purchaser. Of course I do not recognize the sale as valid, but prefer compromise rather than a lawsuit. Please write me what you paid and what sum you will accept for a quitclaim deed. • Yours truly,

“Harvey Murray.”

2. Answer of defendant.

“Mt. Yernon, Mo., Sept. 8, 1896. Harvey Murray, Esq., Ash Grove, Missouri. Dear Sir:- — I have been away from home and just received your letter of the 2nd this morning, and in reply will say that I bid the land in at $3.50, the deed cost me $2.50, and the recording of the deed cost me $1.75, making it cost me $7.75. I will make a quitclaim deed for $20. I would then only get about $10 dollars for my trouble as the cost of the quitclaim would about take up the remainder. If you conclude to do this send it over and I will execute the deed and send it to you. Respectfully,

“C. W. Crooks.”

3. Reply of plaintiff.

“Ash Grove, Missouri, Sept. 12, 1896. Dear Sir: — Enclosed find draft for $20 and Q. O. D. for execution. If married, please have your wife join in deed. Please send tax deed with this Q. C. D. Yours very truly,

The quitclaim deed transmitted by this reply described a different tract of land from the one purchased by defendant at the sheriff’s sale. Defendant on receipt of this deed and the dx*aft for $20, executed a quitclaim deed to plaintiff conveying to him the tract which he had purchased at sheriff’s sale, and transmitted it with his sheriff’s deed by mail to plaintiff, accompanied by the following explanatory letter:

“Mt. Yemon, Mo., Oct. 16, 1896. Harvey Murray, Esq., Ash Grove, Mo. Sir: — Inclosed yon will find sheriff’s deed to me for the west half, lots 1 and 5 of the northeast quarter of section 1, township 29, range 25, and a Q. C. I). for the same from my wife and I. I wrote a néw Q. C. D. for the reason that yon had described the wrong land in the one you sent me and I made it to yon because I did not know who you had sold it to. C. W. Crooks.”

To this plaintiff replied as follows:

“Ash Grove, Missouri, Oct. 20, 1896. O. W. Crooks, Esq., Mt. Yernon, Mo. Dear Sir: — Have been away and your letter of the 16th inst. was received and perused to-day. I return you herewith your sheriff’s deed and also the one you wrote and sent me, as it is not the property I was buying. Please return my draft and oblige. Yours very truly,

Defendant returned the deeds to plaintiff, but kept the draft. Plaintiff afterwards met defendant and tendered these deeds and demanded the $20 he had paid. Defendant refused to receive the deeds or to pay back the $20. Plaintiff also sent the deeds to defendant by registered mail package. Defendant refused to take the package from the postoffice and it was returned to plaintiff. Plaintiff then brought this suit before a justice of the peace to recover the $20. He was defeated in the justice’s court, and appealed to the circuit court, where he was again defeated; from the latter court he has duly appealed here.

acceptance of offer. Plaintiff testified that he had once owned the land described in the sheriff’s deed to defendant and in defendant’s quitclaim deed to him, but that he had sold and made a deed to it in 1893. He also testified in answer to a question propounded by defendant as to his ownership of the land, that he wanted defendant to convey to him, that in his judgment he had not conveyed it; that he had made u deed conveying some land, and that it might be described in that conveyance, but he did not know; and the grantee would not let him see it, and had not put it on record; that he did not think he had conveyed it, but he would not swear that he had not. He also testified that he had understood that this tract had been sold several years previous for taxes, but not at the August term, 1896, of the Lawrence circuit court, and that it was his information that the defendant did not buy it at the sale when it was sold. Rut the one execution sale of land as the land of plaintiff was made .at the August term, 1896, of the Lawrence circuit court. The court in substance instructed that the evidence established a contract of sale and purchase of the land bought by defendant at the sheriff’s sale, and' to find for defendant. The evidence in the record establishes one of two things, either that the plaintiff was grossly negligent about his own affairs, or that after he had received the offer of defendant to sell him the land for $20, he undertook to shift or float the offer to another and different tract. He had the opportunity when on the witness stand to explain himself and to give a reason, if any he had, why he demanded a deed from Crooks for land which Crooks did not own and which he had not purchased at tax sale, but he failed to do this, and the presumption is that he had no explanation to make. We are unable to see any evidences of bad faith on the part of defendant as contended for by plaintiff, he had a right to assume, as he did assume, on the receipt of plaintiff’s letter inclosing the draft and quitclaim deed that plaintiff accepted his offer for the land, and when he discovered that the deed prepared by plaintiff misdescribed the land, about which they had carried on the correspondence, he had the right to assume that the error was a mistake, and Ms duty was to make and execute a deed correctly describing tbe land and to transmit it to plaintiff in performance of bis part of tbe contract; witb tbis duty performed tbe matter was closed, tbe contract fully consummated, and tbe proceeds of tbe draft was tbe money of defendant. We tbink tbe evidence shows that tbe identity of tbe land was in tbe minds of both parties from tbe beginning, and that tbe contract was made when plaintiff accepted defendant’s offer by letter and inclosed him tbe purchase price by draft. Tbe judgment will be affirmed.

All concur.