138 Mo. 181 | Mo. | 1897
The object of plaintiff in instituting this suit was to have specific performance of a contract for the sale of land, or else damages for the failure to perform the contract, and for other and further relief.
The petition charges in substance the following:
First. The death of William Devore, the ancestor of the parties to this suit, and also the names of the children surviving.
Second. That William Devore died seized of the real estate in litigation as well as a considerable amount of personal property.
Third. The fact of the execution of a will and it being probated.
Fourth. An effort on. the part of the disinherited children to institute a proceeding, contesting the validity of the will.
Fifth. That Levi J. Devore, defendant in this suit, was the sole legatee in said will.
Sixth. A compromise of said threatened lawsuit or contest of the will, by which it was agreed in writing by defendant that if the disinherited children would not contest the validity of the will, they would be paid sums of money, as follows: John M. Devore, $400; R. E. Strong, $200; Mary'A. Mathews, $200; Alice Looney, $200, etc.
Seventh. A subsequent agreement between plaintiff and defendant by which plaintiff was to assume these various payments and pay defendant the sum of $1,200, and take a conveyance to the property described.
Fighth. The payment of $100 in cash to defendant and the surrender of a horse of the value of $100 as earnest money.
Ninth. That in furtherance of said agreement this plaintiff executed to his brothers and sisters his
Tenth. The refusal of the respondent to either execute to him the deed agreed upon, to refund the money paid to him, or to relieve plaintiff from the obligations assumed toward his brothers and sisters.
Eleventh. The willingness at this time and at all times of the plaintiff to comply with his contract and tender of the balance due in open court.
Twelfth. The insolvency of the defendant.
Thirteenth. Prayer.
The only answer of defendant was a general denial.
The evidence on behalf of plaintiff appears to support the allegations of the petition, and for the most part is practically undisputed. It was also shown by the evidence that after making the parol contract for the land, defendant agreed in consideration of his brother having had a good deal of trouble about the matter, to knock off $100 of the purchase price, which was done.
After hearing the evidence, the circuit court dismissed plaintiff’s petition, and he has appealed.
The answer being a general denial was sufficient, and under it when plaintiff attempted to prove his contract, and claim specific performance, it could have been shown that the contract being merely parol, the statute of frauds constituted a barrier to any such relief. Or the contract might be admitted and the statute then be formally pleaded; either way was sufficient. Boyd v. Paul, 125 Mo. 9, and cases cited.
And there is no doubt that the statute of frauds constitutes an insuperable barrier to any equitable relief looking to specific performance in this case. But though this be true as to that form of relief, yet plaintiff need not go out of court empty-handed, because
And what is true of the premature payment of the purchase price as a whole is also true of a premature part payment, in which event the premature part payment operates a lien pro tanlo. Fry, Specif. Perf. [3 Ed. Am. N.], secs. 1452,1355,1267, and cased cited.
Such a lien is regarded in equity as one of a class of imperfect mortgages (Adams Eq. 126) and may be enforced in a similar way to that in which such instru.ments are enforced. Fry, Specif. Perf., secs. 1452, 1355.
It seems quite clear from the evidence that plaintiff is entitled to enforce his vendee’s lien for the purchase price prematurely paid, to wit, $200, as well as for the promissory notes for $900, which in performance of his parol contract with defendant, plaintiff executed to his brothers and sisters. And this view is not at all affected by reason of the fact that defend ant as executor of his father’s estate, paid off some notes at thirty-five cents on the dollar, which his father had indorsed for his brother the plaintiff, and this is so for two reasons: First, there were no such payments pleaded; second, such'payments, if made by defendant in his capacity as executor, could not be used in his individual capacity to defeat plaintiff’s claim for purchase money prematurely paid. Nor does it matter that it was part of the agreement that plaintiff was to
If there is any lagging back in this case it seems to be on the part of the recalcitrant defendant.
For these reasons we reverse the decree and remand the cause.
