24 Mo. 117 | Mo. | 1856
delivered the opinion of the court.
This is a suit by the heirs and administrator of Richmond J. Curie, deceased, against Joseph A. Eddy and another, to compel the defendants to convey to them title to a certain tract of land described in the petition, pursuant to their written agreement to that effect, upon the payment of certain moneys specified in the agreement.
The defendants answer and state that they and Richmond J. Curie made a joint purchase of the land, and that Curie, not being in funds, it was agreed that the defendants should advance
The court struck out that part of the answer in relation to the advances made by Beach & Eddy to Curie & Scott.
There was a hearing and finding of facts — no verbal agree
There are no verbal agreements found to exist between tbe parties. We suppose tbe act of the court below, cutting out, on motion, tbe defendant’s claim to bold tbe land until tbe money, goods, wares and merchandise advanced to Curie & Scott should be refunded, rendered no finding necessary as to any agreement on that matter. Tbe $2500 were found to have been paid by Curie in bis lifetime to tbe defendants. Tbe main questions then in this case involve tbe correctness of tbe rulings of tbe lower court in regard to allowing the claim for taxes, fencing tbe land and other costs accruing on account of tbe land, and tbe allowance for services of tbe defendants in attending to this matter. These are tbe subjects on tbe rulings in regard to which tbe plaintiffs complain.
Tbe other party complain of tbe rulings cutting out their
So far as regards the plaintiffs’ objections, we think that the agreement to convey gives the right to demand that the taxes, costs in defending title, fees in relation to the land, enclosures, &c., should be paid by Curie in his proper proportion to the defendants before he can demand the conveyance to be made to him. But so far as regards the services in attending to this business we entertain great doubts of the propriety of such claim; but as the record shows that the plaintiffs were willing to admit $300 of these services, we will not réverse for allowing to them that amount. The words “ and any other liabilities of said Curie to us” may be fairly understood to embrace all proper liabilities incurred by them in regard to the subject matter of the contract. They did not know what these might be ; therefore, under this expression, the payment of money by the defendants, as specified in the account presented by them, might properly form a- debt from Curie to them. It becomes a liability resting on Curie which must be discharged before he can require the title to be conveyed to him. We see no reason, therefore, to reverse the judgment below for any thing alleged by the plaintiffs in tlieir writ of error.
The defendants contend that, by the parol agreement by Curie and themselves, the advances made by Beach & Eddy to Curie & Scott became liens on the land of Curie, and that the court below should have required by its decree that this sum should be paid out of the land before’the defendants can be equitably or legally required to convey. They say it is of the nature of a mortgage, at least an equitable mortgage, and that by the title remaining in the hands of defendants, taken in their name at first, they being the legal owners of the land, any advances made by Beach & Eddy to Curie & Scott are in law presumed to be made on this land, looking with an eye to this land as a means of payment in future.
By our statute, no action shall be brought upon any contract for the sale of lands, tenements, hereditaments, or any other
Upon this contract, then, which was contrary to the statute, the defendants can not insist on tacking their debt against Curie & Scott to the amount of the purchase money originally advanced by them for Curie, and which has been paid back, and require this debt to be paid before they convey according to their written agreement. This view settles both cases, affirming the judgment below in all things ; this court allowing the same time as the court below did. The plaintiffs must pay the costs of the ease brought here on error, and the defendants the costs of the ease brought here by them on appeal. The record in this case will be remitted to the court below, with instructions to carry into execution the deeree which was made by that court, allowing to the parties the same time to perform their respective parts as decreed, counting from this day.