16 Mo. 543 | Mo. | 1852
delivered the opinion of the court.
This was a suit in chancery, begun by Ezekiel Groves, (who, dying, was replaced by his heirs,) against Jesse Fulsome, John Propste and others. The bill states that in May, 1836, E. Groves entered the tract of land which is the subject of this controversy, containing eighty acres, at the land office in the Jackson district. In February, 1837, Groves agreed to convey the land to E. Wilson, and bound himself in a penalty to make a title on or before the 1st March, 1840. At the date of this agreement, Susannah Fulsome lived on the land, which had some improvements upon it. Groves and Wilson, wishing to avoid difficulties, and being unwilling to take the land without paying for the improvements, proposed to Mrs. Fulsome to give her fifty dollars for her improvements, or the sum at which they should be valued by two disinterested men. She preferred the first branch of the proposition, received the sum offered, and voluntarily yielded possession to Wilson. During the latter part of the year 1837, Mrs. Fulsome made application to prove a right of preemption to the land, and Groves was notified to attend, which he accordingly did, but the matter was postponed indefinitely, and afterwards, in February, 1838, without any notice to him, Mrs. Fulsome was permitted
On the trial, the evidence of several witnesses was offered in support of the allegations of the bill; also, that E. Fulsome, the husband of Mrs. Fulsome, went to the south in 1835, with horses, and has never returned. Before his departure, he pledged the tract of land in dispute to James Benton, who afterwards sold it at public sale about the time it was entered by Groves, with an understanding that, if he had entered it, the contract should be rescinded ; that Mrs. Fulsome was apprised of the sale, and was asked if she had any right of preemption to the land. She answered that she had not, that her husband had sold his improvements to Benton, and that she was permitted to live on the place, by his kindness and indulgence. Evidence was also offered tending to show in Propste a knowledge of the circumstances of this transaction, all of which was excluded, to which an exception was taken. There was a decree dismissing the bill, and the complainants appealed to this court.
Groves can only have a decree, on the payment of the purchase money advanced by Mrs. Fulsome, as it is presumed that he has or may withdraw from the land office the money he paid when he entered the land.
The other Judges concurring, the decree will be reversed and the cause remanded.