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10/14/93 STEVE JANSS AND STANLEY JANSS v. GARY

October 14, 1993

STEVE JANSS AND STANLEY JANSS, AND PAULINE CARTER, INDIVIDUALLY, AND PAULINE CARTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF HARLEY CARTER, DECEASED, PLAINTIFFS-RESPONDENTS,
v.
GARY PEARMAN, DEFENDANT-APPELLANT, AND LOU ANN KRUSE, DONALD R. CARTER, ANITA JEAN CARTER, ET AL., DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. Honorable Robert E. Yocom, Judge

Crow, Flanigan, Prewitt

The opinion of the court was delivered by: Crow

By a written, but unrecorded, lease dated January 2, 1986, Donald R. Carter and Anita Jean Carter leased a parcel of real estate in Newton County, Missouri, to Steve Janss and his brother, Stanley Janss, for a term beginning March 1, 1986, and terminating February 28, 1991. Paragraph 13 of the lease read, in pertinent part:

In the event Lessors shall receive a bona fide offer for the purchase of the demised premises during the term of this Lease, and the offer of purchase shall be acceptable to Lessors, Lessors shall give Lessees the right to purchase the premises at the price and on the terms of the offer so made. . . .

During the term of the lease, the Carters sold the land to Gary Pearman without granting the Janss brothers an opportunity to buy it. The Janss brothers sued Pearman and the Carters to enforce paragraph 13. *fn1 The trial court entered judgment for the Janss brothers. Pearman, alone, appeals.

The issues are easier discussed after a narrative of the facts. In marshalling them, we are aided by the extensive findings of fact made by the trial court. The facts we recite are either (a) facts found by the trial court and supported by competent and substantial evidence, or (b) facts consistent with the result reached and supported by competent and substantial evidence. Regarding the latter, we note that in a Judge-tried case, all fact issues upon which no specific findings are made are considered as having been found in accordance with the result reached. Rule 73.01(a)(2); *fn2 Long v. Zirkle, 811 S.W.2d 840, 844[6] (Mo.App. S.D. 1991).

February 27, 1981. Harley Carter and Pauline Carter, his wife, execute warranty deed to Donald R. Carter and Anita Jean Carter, his wife. Harley is Donald's father. Deed conveys a tract consisting of the parcel in dispute here, together with other land. As best we can determine from the record, the area conveyed totals 204 acres, more or less. Deed recites it is "subject to any deed of trust liens which assume and agree to pay according to the terms and conditions thereof." Deed is filed for record March 2, 1981, with Recorder of Newton County.

November 13, 1981. Donald and Anita Carter sign $200,500 note to Harley Carter, payable in specified monthly installments until May 1, 1990, when all remaining principal and interest are due. Note is secured by deed of trust on land deeded by Harley and Pauline Carter to Donald and Anita on February 27, 1981. Deed of trust recites it is subject to certain prior encumbrances, including:

Deed of trust is filed for record November 18, 1981, with Recorder of Newton County, and recorded in book 238 at page 600.

1983 (month and day undisclosed by record). Pearman purchases from Donald and Anita Carter some 57 acres, more or less, of the land deeded to Donald and Anita by Harley and Pauline Carter.

April 1, 1985. Donald and Anita Carter, as lessors, and Pearman, as lessee, sign a lease of the remaining land deeded to Donald and Anita by Harley and Pauline Carter, except the residence thereon occupied by Donald and Anita. Termination date is March 1, 1987.

Later in 1985 (month and day undisclosed by record). Pearman contracts to purchase from Donald and Anita Carter another 37 acres, more or less, of the land deeded to Donald and Anita by Harley and Pauline Carter. The land covered by this contract is part of the acreage leased by Pearman from Donald and Anita in the lease mentioned in the preceding paragraph. According to Pearman, this sale was "closed" in January, 1986.

January 2, 1986. Donald and Anita Carter, as lessors, and Steve and Stanley Janss, as lessees, sign the lease referred to in the first sentence of this opinion. Lease covers all the land deeded to Donald and Anita by Harley and Pauline Carter except (a) the two tracts purchased by Pearman from Donald and Anita in 1983 and 1986, respectively, and (b) the residence and fenced yard. According to Stanley Janss, the size of the leased parcel is some 107 acres. Donald and Anita Carter are given a signed copy of the lease. Janss brothers keep a copy.

March 17, 1986. Janss brothers begin unloading cattle on the leased parcel. Pearman arrives and asks what they are doing. Janss brothers tell Pearman they have leased the farm. Pearman says he also has it leased. Steve Janss tells Pearman the Janss brothers' lease is in writing, but if there is trouble they will not unload their cattle. Pearman replies he doesn't really need the property, so Janss brothers can "just go ahead." Janss brothers unload cattle. Thereafter, throughout the term of their lease, they maintain cattle on the leased parcel.

November, 1986 (day undisclosed by record). Janss brothers encounter Pearman at a sale on the farm of one Horton. Pearman asks how long is the Janss brothers' lease with Donald Carter. Stanley Janss tells Pearman it is five years. Steve Janss tells Pearman the Janss brothers have an "option." Pearman asks nothing about the option.

March 1, 1987. Lease between Donald and Anita Carter and Pearman, signed April 1, 1985 (described supra), expires.

August 16, 1988. Harley Carter suffers stroke, paralyzing his right side.

August 19, 1988. Bank of Neosho sends letter to Donald and Anita Carter stating they are three months delinquent on their loan -- the debt secured by the deed of trust dated November 9, 1981, mentioned in the deed of trust executed by Donald and Anita in favor of Harley Carter on November 13, 1981 (described supra). Letter also states property taxes are delinquent. Letter warns all delinquencies must be paid by August 24, 1988, or matter will be referred to bank's lawyer.

October 26, 1988. Bank of Neosho instructs its lawyer to commence foreclosure proceedings against Donald and Anita Carter. Lawyer prepares notice of trustee's sale for publication beginning November 8, 1988. Sale set December 1, 1988.

A day or two before November 4, 1988, Donald Carter informs Pearman the Bank of Neosho is preparing to foreclose. Donald tells Pearman: "We're going to need to work out something. We don't want to go through a foreclosure."

About the same date as the above incident, Stanley Janss encounters Donald Carter at a convenience store. Donald says he is thinking about selling the farm, as he is "trucking" and does not intend to farm anymore. Stanley tells Donald he is interested in buying the farm. Donald replies it will be "a year or so" until he sells.

About November 4, 1988, Harley Carter is hospitalized for pneumonia.

November 4, 1988. Donald and Anita Carter and Pearman sign two contracts, identified at trial as Plaintiffs' Exhibits 1 and 2. In Exhibit 1, Donald and Anita agree to sell Pearman all the remaining land Donald and Anita received from Harley and Pauline Carter on February 27, 1981 (it will be recalled Pearman bought some 57 acres of it from Donald and Anita in 1983 and another 37 acres from them in 1986). Price is $39,000. Donald and Anita agree to discharge Bank of Neosho's lien at closing. Exhibit 1 further provides:

9. Absolute and unqualified possession shall be delivered to the Buyer at the time of closing except the residence which is covered by a separate agreement . . . and also subject to a pasture lease in favor of Steve Janss and Stan Janss.

12. The parties agree that the pasture on the above described property is under lease to Steve and Stan Janss. Sellers shall retain all rents heretofore received and Buyer shall be entitled to all rents ...


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