14 Mo. 350 | Mo. | 1851
delivered the opinion of the court.
This was an action of ejectment, and tried by the court on the general issue.
The evidence was, that on the 29th of May, 1837, the plaintiff, (Glascock,) who was the owner of the lot in dispute, sold and bound himself to convey the same to David O. Glascock, on the payment, by the latter, to the Hannibal Company, of four hundred dollars. David O. Glascock was put into possession of the lot, erected upon it a steam mill under an arrangement with the said company, got into debt, suffered the lot and improvements to be sold under execution against him, and John J. Campbell became the purchaser.
There was testimony touching the indebtedness of David O. Glas-cock to the Hannibal company on other accounts, growing out of the erection of the mill, and evidence was also admitted with the design of proving that an arrangement had been agreed upon on the part of the company, whereby the purchase money for the lot should be, or was, paid and satisfied. It is deemed unnecessary further to state the testimony in the case, than that the defendant in the suit below claimed under some one who traced his title back to the sheriff’s deed to Campbell;, and shewed that a deed had once been prepared by an agent of the Hannibal Company, reciting the payment of the purchase money hy David O. Glascock, and that it would have been signed by Stephen Glascock but for some informality. Subsequently, at the instance of said Company,
At the instance of the defendants, the court declared the law to be (firstly,).that if the plaintiff sold the property in dispute to David O. Glascock, and put him in possession, and agreed to convey the title to him, and the defendant come in under said David, and no demand was ever made for possession by the plaintiff before suit, he cannot recover. Also, (secondly,) that if in the case just supposed, the purchase money was paid by Glascock, (the purchaser,) there could be no recovery.
Upon these instructions the plaintiff took a non-suit, with leave to move to set it aside, which being overruled the case is brought here.
In reference to the last instruction, no authority is cited by the counsel for the defendant in error, nor, indeed, perhaps, would any be deemed necessary beyond the authoritative force of his own conclusive reasoning, were the question now undergoing for the first time judicial consideration. It having, however, been long held and settled otherwise, it is deemed but prudent and proper to permit the new code of practice and procedure upon which we are just entering, to suggest and establish a rule, or rules, more consonant to equity, to justice, and to law.
Respecting the first one, having relation purely to the necessity of a notice to the defendant to quit the possession, which is alone here in question, it will suffice to remark that whatever might have been the opinion of at least a portion of this tribunal had the question been presented as an original one, it has been deemed most proper to concur in what seems to be the preponderant current of authority in analogous cases — deducing therefrom that no such notice is necessary in a case like the present, (without privity,) and that consequently the judgment of the circuit court must be for that reason reversed, and the cause remanded.