Huffman v. Ackley

34 Mo. 277 | Mo. | 1863

Bates, Judge,

delivered the opinion of the court.

The instruction given for the plaintiff was erroneous, in that it did not require as a condition of the plaintiff’s recovery, that the plaintiff’s alleged interest in the tract of land should have been conveyed to the defendant. The petition stated that the plaintiff’s interest (which was stated to be an undivided fourth of the whole) was conveyed to the defendant by George Huffman. This conveyance was the alleged consideration of the debt of the defendant to the plaintiff, and its proof was a necessary precedent to a recovery by the plaintiff, yet the instruction authorizes a recovery, if he has obtained title to the land by means of an independent purchase from George Huffman. The importance of this omission appears from an examination of the testimony, which shows that the defendant bought the whole estate in a specified portion of the land, and not an undivided fourth of the whole tract, from George Huffman ; but that no connection of the plaintiff with that purchase is shown at all, and no conveyance or intention to convey any interest of the plaintiff in the land is shown by testimony.

The instructions asked by the defendant were properly refused. The first and third were mere abstract propositions of law, upon which we give no opinion. Instructions should be so framed as to apply directly to the whole case, properly made in evidence under the pleadings.

The second should have stated an hypothetical case. The fourth assumed that a parol promise by George Pluffman would be absolutely void, whereas it was optional with him to avail himself of the statute of frauds or not.

We give no opinion whether the statute of frauds may be pleaded in this case or not.

Judgment reversed and cause remanded.