108 Mo. 544 | Mo. | 1891
The suit was ejectment to recover a lot of land in Springfield, Missouri, on which were located two sidetracks of defendant, and near to which were defendant’s depots. The lot sued for and described in the petition was one hundred feet wide fronting on the west side of Main street, and one hundred and fifty feet in length. One of the defendant’s sidetracks was within two feet of the south side of this lot. And the other was about seventy-five feet north of the first.
The defense was that the Springfield & Western Missouri Railway Company, defendant’s grantor, had taken possession of the property under a verbal contract with plaintiff by which he agreed to convey the land to said company in consideration that it would “locate upon said parcel of ground and the lands adjacent thereto their main track of railroad, switches, depot buildings, engine-house or houses, turntables, etc., and to use and occupy said grounds in the said manner and for the said purpose of a general depot in the city of Springfield and lor the further and especial consideration
It averred further that said company fully complied with all the terms and conditions of said contract, and that thereafter defendant became the owner of all the property rights and franchises of said company including the equitable right and title to said land. The answer farther averred that defendant was in possession •of said property under and by virtue of said contract, had made valuable and expensive improvements thereon, and prayed for affirmative relief.
On the trial it was admitted that defendant became the owner of all the franchises, rights, property and effects of. the Springfield & Western Missouri Railroad Company, including the equitable title, if any, of said •company, in and to the parcel of ground in controversy, and that defendant was in possession thereof.
We think there is no doubt that the verbal contract to convey the lot was clearly established by evidence sufficient to justify the finding on that proposition.
The principal contention on the part of plaintiff is that the contract, being within the statute of frauds, a sufficient part performance had not been shown to free it from that statute. It appears without dispute that plaintiff Hays owned the tract consisting of about two hundred and twenty-five feet • front on the west side of Main street. In 1878 the railroad was built through Springfield, the main track running east and west some two hundred and twenty feet north of plaintiff’s, and a sidetrack had been built over the north side of this land about parallel to the main track. It does not appear under what conduct or agreement this sidetrack was
Plaintiff; testified that he made no contract with Massey at all; that he did agree with Murray, president of the road, that he would give nine feet of land upon which to construct the south switch, but never intended or agreed to give the land lying between the two tracks. We think the weight of corroborating testimony and the circumstances sustain the evidence of Massey.
The sidetrack was built across the land, and the other improvements substantially made as agreed. The strip of land in controversy, some fifty feet in width, lying between the two sidetracks and extending up to the freight depot, was used by the railroad company, without objection, as a means of access from Main street to the depot and to the cars on the sidetracks. The grade of Main street had been raised two or three feet which left the disputed strip lower than the street. The defendant had graded it up to a level with the street and covered it with macadam. The cost of this grading and macadamizing was • estimated at $300, which was independent of the cost of the sidetrack. This grading was in 1882; when it was about completed on this strip, the plaintiff served notice on the defendant to cease using or improving the lot. It might be added
The case was tried to the court without a jury, and the finding was for defendant, and affirmative equitable relief granting the use of the land in dispute was decreed. Plaintiff appeals.
At the request of plaintiff the court gave the following declarations of law: “Before the court can find the issue for the defendant as to the land not embraced in the deed executed and delivered by Hays to the railroad company and not covered by the south. switch and two feet on each side thereof, the court sitting as a jury must be satisfied beyond a reasonable doubt: First. That the plaintiff Hays did make and enter into a verbal contract, as set out in the answer, for the sale of said land, which contract must -be established by clear, definite, competent and unequivocal proof, and, second, that the defendant or those under whom it claims entered into the possession of that particular tract of land under and by virtue of said contract with the knowledge, permission and consent of said Hays, and,. third, that the defendant, or those under whom it claims, made valuable and lasting improvements thereon to the knowledge and with the permission and consent of said Hays.”
We think there was evidence authorizing each of the propositions contained in this instruction, and the finding and judgment indicates that the court was satisfied with the truth of each of them.
A verbal contract for the sale of land, and nothing more, is as nothing. It has no binding force whatever, because of the statutes of fraud. If one can show,
Under the declaration of law given in this case and the finding and decree thereunder, the court was bound to have found that a verbal contract was clearly established; that possession was taken and improvements made thereunder; and that all was done with the knowledge and consent of plaintiff. It is true the evidence does not show an exclusive possession by defendant to the strip of land between the tracks, but it shows a possession and use of it as a roadway and its improvement as such, which was the only use to which defendant wished to apply it, and which was wholly inconsistent with any proprietorship on the part of plaintiff. It must also be remembered that the verbal contract, as the evidence tended to prove it, included the land upon which the south sidetrack was afterwards laid and constructing that track is a part performance and an act of possession and ownership, which the court had aright to, and' doubtless did, consider. Judgment affirmed.