170 Mo. App. 632 | Mo. Ct. App. | 1913
Appellant filed a bill in equity wherein he alleged that he is the owner of a certain lot and building thereon, and the furnishings therein located, in the city of St. Joseph, having purchased
A demurrer to tbe petition was filed wbicb tbe trial court sustained, and plaintiff, refusing to plead further, stood upon tbe petition. Wherebpon judgment was rendered against him and be now appeals.
Tbe question presented for our consideration is not tbe desirability or tbe feasibility of efforts to lessen or prohibit tbe social evil, but to determine tbe sufficiency of tbe petition as tbe foundation of a suit in equity.
There is no allegation in tbe petition that tbe defendants are insolvent or unable to make tbe payments required of them by tbe terms of tbe contract. Indeed, tbe inference is that they are paying these installments promptly, or else tbe appellant would exercise tbe right of re-entry provided in tbe contract. From tbe allegations of tbe petition it would seem that tbe property has increased in value since tbe contract was executed rather than decreased. There is no allegation in tbe petition that plaintiff is or was ignorant of tbe purpose of tbe contract; or that tbe property is being used for a purpose different from that contemplated by tbe parties when it was made. On tbe contrary, the allegations show that it is being used in strict accord with such intention. Tbe petition shows that tbe sum of nearly $10,000 has been paid on tbe purchase price, and that if the defendants do not comply with the terms of tbe contract, all rights thereunder are lost and tbe money paid can be retained as liquidated damages. Appellant owns no other property in tbe vicinity to suffer deterioration or loss. There is nothing to show that he is or has been in any way prevented from taking-possession of said property for breach of any conditions in said contract; nor are any facts pleaded which show any danger of loss or injury to him. On tbe contrary, tbe facts pleaded show -that be is not in any danger of irreparable injury from depreciation in val-
While the petition contains the allegation that plaintiff has no adequate remedy at law, yet there are no traversable facts pleaded from which such absence of a plain and adequate remedy at law can be seen. [State ex rel. v. Woods, 155 Mo. 425, l. c. 449; Verdin v. St. Louis, 131 Mo. 26, l. c. 105-6.]
If the allegations of the petition concerning the contract under which defendants are holding possession are true, then such contract is illegal. [Sprague v. Rooney, 104 Mo. 349.] And a suit for possession based on that ground could be maintained. Upon the establishment of that fact, no cloud would remain on plaintiff’s property since the law would declare that such contract had no existence from the beginning. [Sprague v. Rooney, 104 Mo. l. c. 360.] Besides, if such contract is a cloud on the title, the procedure in
The petition clearly disclosed no equitable right in plaintiff to proceed on the facts, alleged. "We do not say that no circumstances nor allegation of any hind would entitle plaintiff to equitable relief but only that, under the facts as alleged by Mm in this particular petition, he is not entitled to the aid of equity. The judgment of the circuit court is affirmed.