Funk v. Urton , 44 Mo. App. 607 ( 1891 )

Ellison, J.

-Defendant, by instruction, numbered 2, asked the court to declare that, if plaintiff, at the time the road was ironed, had good title to the right-of-way strip by adverse possession and that the railway company constructed its track under a contract of purchase from plaintiff and not by reason of any rights, it, or its predecessor, had formerly acquired, the finding should be for defendant. Instruction, numbered 4, was substantially to the same effect. Both these instructions should have been given. Much has been said of the bond, its binding force and effect, but, whatever may be said of it, it cannot be construed as obligating defendant to pay the $500, if plaintiff himself should iron the road, or if he should procure others to do so ; or, for a valuable consideration, grant them the right to do so. Plaintiff, as purchaser of the land, did not want the strip taken from him by the railway company completing its right to use it. He, perhaps, did not want the road operated through the premises. The bond was given that this should not be done. But if plaintiff procures the breaking of the bond by selling the land, or right to iron the road, to the railway company, I am at a loss to seé how this act of his could be construed as giving him a right of action.

As to the instruction, numbered 3, we will not say what the presumption of law (as to the bond) spoken of therein would be. But if, as is therein hypothetically stated, the deed (to the one hundred and forty-two acres) and bond executed by defendant, and deed of trust and notes executed by plaintiff to defendant, were executed and delivered contemporaneously and were considered by the parties as one transaction, and after-wards the contract was canceled, it, ipso facto, canceled or annulled the bond, unless it was excepted from the operation of the subsequent contract.

The judgment will be reversed, and the cause remanded.

All concur.