Opinion
No. 38430.
November 1, 1943.
1. SPECIFIC PERFORMANCE: Vendor and Purchaser: Time of Essence: Waiver. Though time was of the essence in paying the purchase price, the right to specific performance was not defeated if the default was waived by acts recognizing the contract as existing.
2. VENDOR AND PURCHASER: Defective Title: Performance Waived. The evidence shows that the purchaser's obligation to pay for the property on the contract date was waived by an agreement of the parties to have administration proceedings instituted to cure a title defect.
3. VENDOR AND PURCHASER: Requirement of Administration Proceedings Reasonable. The purchase contract provided for a good title in the deceased mother of the vendors and a good warranty deed from said grantors. It was a reasonable interpretation of the contract that administration proceedings should be had on the estate of the mother.
4. VENDOR AND PURCHASER: Consideration Not Required For Waiver. A waiver of time of payment, if relied on, is sufficient to prevent a vendor from asserting the purchaser is in default, although no consideration has been given for the waiver.
Appeal from Lewis Circuit Court. — Hon. Noah Simpson, Judge.
AFFIRMED.
Gray Snyder, J. Andy Zenge, Jr., and Fuller, Fuller Ely for appellants.
(1) The parties to a contract for the conveyance of land may stipulate that "time shall be of the essence," and if such a provision be inserted, failure of the vendee to tender performance on the day stipulated, will defeat his right to specific performance. Wimer v. Wagner, 20 S.W.2d 650; American Law Institute — Contracts, Restatement, Sec. 276 E; Glass v. Rowe, 103 Mo. 513; Cheney v. Libby, 134 U.S. 68, 33 L.Ed. 818; 3 Parsons on Contracts (5th Ed.), p. 383; 58 C.J. 1090, sec. 356. (2) Failure of the plaintiff to make tender was not excused by the fact that there was no administration on the estate of Elizabeth Gruber. He specifically agreed to accept an abstract showing title in Elizabeth Gruber, and hence could not demand an abstract showing title in the defendants as her heirs. 27 R.C.L. 484, sec. 200; Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322. (3) The fact that the defendants agreed to give "a good Warranty deed" to the plaintiff, did not require that administration be taken out, as the same paragraph provided for an abstract showing title in their ancestor. Henderson v. Beatty, 99 N.W. 716. (4) There is no evidence to support the theory of an alleged oral modification of the contract pleaded in the petition. (5) There was no waiver of the requirement of payment by the 1st of March shown in the evidence.
Walter M. Hilbert, Harry S. Rouse and A.F. Haney for respondent.
(1) While the general rule is that, where time is of the essence of a contract of sale of land, in which an abstract showing good title and a deed are to be delivered and the purchase price to be paid on or before a certain date, and the purchaser fails to tender payment by that date, the purchaser is not entitled to specific performance; but there is an exception to this rule where the vendor fails to furnish an abstract showing good title by that date, in which case the purchaser is not required to tender the purchase price by that date, and, if he is ready, willing and able to pay whenever a good title is shown, he is entitled to specific performance in case the vendor refuses to execute a deed to him. Wimer v. Wagner, 20 S.W.2d 650. (2) The contract in this case required the abstract to show good title in Elizabeth Gruber, the deceased mother of defendants. Where a contract requires an abstract showing good title in a deceased person, it must show that the estate of deceased has been administered on and that the land is not chargeable with the payment of debts of deceased. (3) The evidence is abundantly sufficient to show that there was an agreement or understanding between the plaintiff and the defendants for extending the time for payment of the balance of the purchase price until the title was shown by administration of the estate of deceased to be good. (4) The evidence concerning the acts and conduct of the defendants is strong evidence of waiver by the defendants of the requirement of payment by the first of March, 1941. A court of equity will not regard time as of the essence of the contract when the parties themselves have not so treated it. Walker v. Owens, 25 Mo. App. 587; Melton v. Smith, 65 Mo. 315; Mastin v. Grimes, 88 Mo. 478. (5) Although time for the payment of the purchase price may be of the essence of the contract, such time may be waived by the vendor. (6) A right to insist on a forfeiture so as to affect the right to specific performance may be waived by a course of conduct inconsistent with the intention of holding the purchaser or lessee strictly to the terms of the agreement. 58 C.J., sec. 378, pp. 1099-1100.
Plaintiff, as purchaser, sues for the specific performance of a contract for the sale of land. At the time the contract was made title to the land stood in the name of Elizabeth Gruber, deceased and intestate, mother of defendants Walter and George Gruber, her only heirs. The controversy hinges on the interpretation of a provision of the contract which reads: "Parties of the first part [defendants, vendors] agree to deliver to party of the second part [plaintiff, purchaser] an abstract showing good title in Elizabeth Gruber, the deceased mother of grantors, Walter Gruber and George Gruber, and a good warranty deed of conveyance of the above real estate to the party of the second part on March 1, 1941. . . ." The contract provides the balance of the purchase price should be paid on or before March 1, 1941, and that time was the essence of the contract.
At the trial plaintiff amended his petition to conform to evidence adduced by him by alleging in February, 1941, defendants furnished plaintiff an abstract of title showing title in Elizabeth Gruber, deceased, and showing there had been no administration on her estate so as to bar debts; that the parties agreed that defendants would have her estate administered and the sale would [831] be completed when administration was closed if there were no liens against the land.
Upon the close of administration plaintiff presented a deed to defendants requesting them to execute it but they refused. Judgment was for plaintiff ordering specific performance and defendants have appealed.
Defendants contend the evidence was not sufficient to support the amendment to plaintiff's petition alleging the modification of the contract so that plaintiff was bound by the contract, as originally written, to pay the purchase price on or before March 1, 1941, which he failed to do. As a result, in view of the provision time was of the essence, plaintiff's failure to perform his part on the date specified defeats his right to specific performance. This is in accord with the established rule. But such rule does not apply when the default is waived or excused. Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650. A default may be waived by acts recognizing the contract as existing, such as promising to cure defects in title or by permitting the purchaser to expend money in reliance on the contract. 58 C.J. Specific Performance, sec. 373; Lancaster v. Roberts, 144 Ill. 213, 33 N.E. 27.
According to the evidence plaintiff was given an abstract of title extended to include the date of death of defendants' mother. Plaintiff testified he told defendants after receiving the abstract and before the date the deal was to be closed "the title was not right and they agreed to have the estate administered and make the title right . . . They said they would administer if we would pay the probate costs." Plaintiff agreed to pay such costs. Plaintiff told defendants he was ready and able to pay the purchase price "when the title was good." Administration was taken out by defendants. After administration was completed defendants refused to convey the land to plaintiff. One of the defendants testified that they refused because "we had changed our minds."
Plaintiff's testimony was neither disputed nor denied. The chancellor was convinced of its credibility. We find it sufficient to show performance by plaintiff on the stated date was waived and postponed until after the administration on Elizabeth Gruber's estate was completed.
Such course of conduct was logical under the contract as it provided for good title in Elizabeth Gruber deceased. The provision for a good title in a deceased is ambiguous. A good title has been held to be synonymous with a marketable title and ordinarily a title is not marketable when administration has been omitted. Kling v. Realty Co., 166 Mo. App. 190, 148 S.W. 203. For a discussion of similar and contrary holdings see Anno. 57 A.L.R. 1408. Even if the provision is construed to mean a good title at the time of Elizabeth Gruber's decease, defendants are still confronted with their agreement to give a good warranty deed. A person contracting to sell real estate by a good warranty deed impliedly agrees to deliver a marketable title to the purchaser. McPherson v. Kissee, 239 Mo. 664, 114 S.W. 410. But defendants could not deliver marketable title until the liability of liens for deceased's debts is disposed of. It seems to us that the parties properly interpreted the contract as requiring the administration in order to enable defendants to make a good warranty deed.
As the contract provided for "good" title in the deceased the case of Henderson v. Beatty, 124 Iowa 163, 99 N.W. 716, is not pertinent. In that case only the right, title and interest of the owner was to be conveyed. The court held this meant such interest as the owner then possessed and the agreement to convey this interest by warranty deed could mean a deed of special warranty only. In Salmon v. Hoffman, 2 Cal. 138, it was expressly provided the same title deceased had at the time of his death was to be conveyed so that case is not apposite.
Defendants point out there was no consideration for the waiver. A waiver of time of payment, if relied on, is sufficient to prevent a vendor from asserting the purchaser is in default although no consideration has been given for the waiver. Casner v. Meyer (Mo. App.), 191 S.W. 1119. See also Stout v. Edwards (Mo. App.), 210 S.W. 128 and Whitsett v. People's National Bank, 138 Mo. App. 81, 119 S.W. 999.
The judgment is affirmed. All concur.