Parsons v. Kelso

COX, J. The real contention in this case is as to, whether or not Kelso agreed to assume the deed of trust that was on the land at the time of the execution of the contract, and whether the plaintiffs were able to comply with their part of the agreement to furnish a good title up to date. As to the agreement of Kelso to assume the mortgage there was some conflict in the oral testimony in relation to that, but, in the view we take of the situation, no oral testimony in relation to that question should have been received. In the first place, such testimony was a contradiction of the written contract between the parties. The contract itself provides that the balance, — $3,000 is to be paid on or before [373] eight years from September 15, 1907, interest eight per cent per annum, to he paid annually, and not a word is said about the assumption of an encumbrance by Kelso. The contract is not ambiguous, and is capable of being enforced as it reads without the aid of extrinsic testimony. Contracts for the sale of land are required by the statutes to be in writing, and,, under this statute, it has been uniformly held that a contract of this character, to be enforced, must be complete in itself and state its terms with such certainty that the substance of the contract will appear from the writing itself, without recourse to parol evidence, and when such a contract is executed, parol evidence is inadmissible to vary or contradict its terms. [Smith et al. v. Schell, 82 Mo. 215; Fox v. Courtney, 111 Mo. 147, 20 S. W. 20; Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800; Weil v. Willard, 55 Mo. App. 376.] The contract in this case met the requirements of the statute, and is brought squarely within the rule above stated. There is another reason why a parol agreement between these parties, by which Kelso was to assume and pay this deed of trust, cannot be considered in this case, and that is, if such an agreement were made, it was an agreement on the part of Kelso to answer for the debt of another, and that is itself within the Statute of Frauds and is not valid unless in writing. Hence, any oral agreement made in that respect is nugatory in this case. The plaintiffs in this case have covenanted by their contract to furnish a good title up to date. They were bound to do so,, and if we waive all questions relating to the transfer of one acre to the school district with an easement to the spring, yet this encumbrance of $3,000 was a material defect in the title and Kelso was not bound to accept the title in that' condition. [Ives v. Crawford County Farmer’s Bank, decided at this term.] [374] The only remaining question is as to the right of Kelso to rescind the contract under the circumstances mentioned in this case. The principle involved in this case has been often decided in his favor, the courts uniformly holding that a court of equity will, in a proper case, declare a rescission of a contract for a violation of the covenants therein contained, because it would be against conscience to permit one party to violate the contract on his part, and still hold the other party to a compliance with it. [Lincoln Trust Co. v. Nathan, 175 Mo. l. c. 44, 74 S. W. 1007.] Since Parsons and Akers were not in a position to enforce specific performance, and could not furnish the title they had agreed to furnish, the court below followed the proper course in rescinding the contract and requiring Kelso to be placed in statu quo, by giving judgment in his favor for the money which he had paid. The judgment will be affirmed. Gray, J., concurs ; Nixon, P. J., having been of counsel, not sitting.