Jones v. Shaver

6 Mo. 642 | Mo. | 1840

Opinion of the Court by

Napton Judge.

The appellant sued Shaver in the circuit court of Washington county, on a note for $>325,00, by petition in debt. Defendant pleaded that the consideration of the note was a house and certain lots in the town of Caledonia, to which Jones at the time of the execution of the note had no title, and yet had none. Replication was filed, and issue taken. Defendant filed his bill for discovery, calling on Jones to state the consideration of said note, and whether he ever had or yet had any title. Jones’ answer admits the note to have-been executed for the consideration charged, but states that he purchased the lots from one Masters, and had paid Masters for the same; that Masters had not made him -any title, but that the fact was well-known to Shaver, and that he sold Shaver his (Jones,) equitable title. He states further that he gave Shaver an order on Masters for the title, and that Masters had been always ready to make the title to Shaver upon request.

Evidence was given in the trial conducing to show that Masters had always expressed a willingness to make a title to Shaver, until perhaps some two or three years after the transaction between plaintiff and defendant, when it seems he became doubtful as to the title of some land which Jones had let him have for the lots. ' Some judgments against Masters, amounting to about five hundred dollars, were offered and given in evidence, for the purpose I suppose of throwing a lien on the lots.

The jury found a verdict for the defendant, and the judgment -went accordingly; the case is brought here by writ of error.

A sold his “equitable ’title” to a tract of land to B who.exe-cutcd his note to A. for the purchase money. It turned out that A. had no title available at law or in equity: Held, that there was a total failure of consideration.

The court is of opinion, without a. particular investigation of the testimony, that the answer of Jones alone was sufficient to warrant the finding a total failure of consideration. Jones does not show any title nor pretend to offer any which is of any legal validity, or would be of any avail or benefit to Shaver. He supposed himself to have an equitable title, but according to his own statement, he had no title either legal or equitable. He had nothing by which he could enforce a'conveyance from Masters to himself, much less could he transfer.such a power to Shaver. Judgment affirmed,