Dazey v. Laurence

153 Mo. App. 435 | Mo. Ct. App. | 1911

COX, J.

The essential facts out of which this litigation grew are as follows:

On December 23, 1907, the following contract was entered into between plaintiff and defendant, Frank Elvin.

“Findley, Illinois, December 23, 1907.

“I have this day sold to Frank Elvin my livery stock in Pontiac, 111., for the sum of six thousand dollars to be paid in the following manner — $500 cash, $500 on or before April 1st. 1908, $2000 in merchantable notes, $3000- secured by mtge. on south half of Sec. 15, Ozark Tp., Barton Co., Mo., to run for a period of five years from Dec. 1st, 1907, int. at the rate of five per cent payable semi-annually. Said livery stock is to remain in possession of J. E. Dazey until deal is consummated.

“J. E. Dazev,

“Frank Elvin.”

Defendant, Frank Elvin, refused to comply with this contract and conveyed the land mentioned therein to his brother, J. C. Elvin, and also executed some form of statement setting forth that one J. M. Harlow was the owner of a one-third interest in the land. The deed to J. C. Elvin, and the statement as to Harlow’s interest, were filed for record in Barton county. On defendant Frank Elvin’s refusal to comply with the contract upon his part, plaintiff sold the livery stock mentioned in the contract at public auction, from which sale he realized $4559.35' for which he gave proper credit, then brought this suit alleging the facts above set out, and further alleging that the conveyances of the property were fraudulent, alleged the insolvency of Frank Elvin and prayed an accounting and a decree of specific performance requiring defendant, Frank Elvin, to execute the mortgage provided for in his contract and for general relief. Personal service was had upon defendants, Frank Elvin and J. C. Elvin, and a Us pendens was filed by plaintiff. On April 15, 1908, default judgment was entered for plaintiff. The cause was continued for two terms without final judgment having been rendered, and on January 11, 1909, F. A. Laurence was on his own application, and against plaintiff’s objection, made a party defendant on the ground that he claimed to be the owner of the land described in the contract, and by leave of the court filed an answer which was a general denial and plea that he had purchased the land from J. C. Elvin, that J. O. Elvin had purchased from Frank Elvin, and that both Laurence and J. O. Elvin bought in good faith without actual knowledge of plaintiff’s claim for a lien on the land. Upon motion of defendant Laurence the default judgment was set aside and a hearing had on the question as to whether plaintiff’s demand against Frank Elvin. should be enforced against the land. The court heard the testimony and dismissed plaintiff’s bill, and he has appealed.

As a preliminary question plaintiff insists error urns committed by the court in permitting Laurence to be made a party and to defend in this case after de fault judgment had been entered. Laurence purchased the land after the suit was begun, but as he claimed to have purchased the land in good faith for value and without actual knowledge of the pending suit, it was within the powder of the court, in the exercise of a wise discretion, to permit him to come in and defend any •time before final judgment. [R. ,S. 1909, sec. 2094.] And we do not think that discretion was unwisely exercised in this case. If it w-ere true, as claimed by Laurence, that he had paid value for the land without actual knowledge of plaintiff’s claim, it was but fair to him that plaintiff should be required to show some ground for fastening his claim upon this land before he should be permitted to subject it to the payment of his debt, and thus deprive Laurence of his title thereto.

The filing of' lis pendens — which filing was admitted by defendant Laurence — precluded Laurence from holding the land against, plaintiff if to do so would work injury to plaintiff. The fact, however, that Laurence claimed to have purchased the land in good faith and without actual knowledge of plaintiff’s claim, made it the duty of the court to protect Laurence’s interest in this land if it could be done without injury to .plaintiff. Whether this judgment should stand-or fall must, there-. fore, depend upon whether plaintiff has. show'll himself entitled to equitable relief by a decree for specific performance, or for a money judgment and a lien upon this land to enforce it.

Specific performance of a contract is not awarded by a court of equity as a matter of right, but rests in the sound discretion of the court and whether it will be granted or withheld in a given case must be determined by the facts of that case. [Davis v. Petty, 147 Mo. 374, 48 S. W. 944; Brevator v. Creech, 186 Mo. 558, 572, 85 S. W. 527; Sease v. Cleveland Foundry Co., 141 Mo. 488, 42 S. W. 1084; Gottfried v. Bray, 208 Mo. 652, 660, 106 S. W. 639.] When a party asks specific performance it is the duty of the court to consider the interests of everybody concerned and if, under the circumstances of the case, it would be inequitable to enforce specific performance, such relief will be denied. [Veth v. Gierth, 92 Mo. 97, 104, 4 S. W. 432.]

One of the requisites to the exercise of equitable jurisdiction is the absence of an adequate remedy at law. Equity does not supplant the law but only lends its aid when the legal remedy is in some way inadequate. The real end sought to be attained in this case is damages for a breach of contract and security for such damages. Why should the security be exacted and what reason is there for asking a court of equity to "enforce it as a lien upon the land in question? If defendant, Frank Elvin, who breached his contract, is solvent so that a money judgment can be collected by execution, then plaintiff has an adequate remedy at law and there is no occasion for him to apply to a court of equity for protection. There is no testimony whatever in this case as to whether defendant, Frank Elvin, was solvent or insolvent. Plaintiff charged him to be insolvent, but this is put in issue by the answer of Laurence, and since plaintiff is only seeking to recover and enforce collection of a money judgment the burden was upon him to prove the insolvency of Frank Elvin in order to place himself in a position to insist upon his right to have his demand made a lien upon the land Frank Elvin had agreed to pledge as security for his debt to plaintiff. Having failed to do this he has failed to show any ground for equitable relief. Especially is this true when to grant the relief demanded would result in robbing the defendant, Laurence, of his title to- the land. Such a result ought not to be fostered unless there was some necessity for it.

It is finally insisted by plaintiff that if he is not entitled to specific performance he is, at least, entitled to a money judgment against Frank Elvin. The difficulty in plaintiff’s way upon that proposition is that the record in this case fails to show that such relief was specifically asked at the hands of the trial court; neither did the plaintiff in his motion for new trial call the attention of the trial court to the fact that he might be entitled to a money judgment. Not having called the trial court’s attention to this matter he is not now in a position to insist upon it here. [Sweet v. Maupin, 65 Mo. 65; Lynch v. Railroad, 208 Mo. 1, l. c. 44, 106 S. W. 68.] The judgment will be affirmed.

All concur.