79 Mo. 92 | Mo. | 1883
This case comes up on demurrer to tbe. following petition:
Plaintiffs state that defendant is a corporation duly incorporated under and by virtue of tlie laws of the State of Missouri; that on the 2nd day of April, 1857, James Jones and Elizabeth, his wife, executed and delivered to the North Missouri Railroad Company, a corporation then incorporated and existing under and by virtue of the laws of the State of Missouri, their deed, conveying to said company the following described tract of real estate situated in Montgomery county, Missouri, to-wit: (description omitted). Plaintiffs further state that there are twleve acres more or
To this petition the defendant demurred, assigning the following grounds of objection: 1st, The petition does not state facts sufficient to constitute a cause of action; 2nd, The statute of limitations; 3rd, The claim is stale; 4th, There is no equity in the bill; 5th, The petition is vague, indefinite and otherwise defective. The court sustained the demurrer, and the plaintiffs brings the case here on writ of error.
The averments of this petition are not specific. Too much is left to conjecture. It is not alleged that the consideration as to the location of the depot on this land, was expressed in the deed from James Jones to the railroad company. On the contrary, the statement respecting the consideration, being immediately followed by this distinct averment, “ that by the terms of the said deed said land
The allegations of the bill are not sufficient to make an issue of fraud even against the railroad, grantee, under James Jones. All that is avoired in this connection is that the railroad company represented that it would require about twelve acres for depot purposes. It is not averred that the representation was so made for a fraudulent purpose, with the intent to mislead or gain an unconscionable advantage, or that the company knew the statement was false. It is nothing more as averred, than the expression of an opinion. Peers v. Davis, 29 Mo. 184; Hodges v. Torrey, 28 Mo. 103; 1 Story Eq., 191, 199, 200; Cooley on Torts, 483.
Stripped then as the case is, of any legitimate issue of fraud, as to the railroad company obtaining the deed, how stands the cause of action ? It is simpiy the case of a conveyance by A to B on a condition to be thereafter performed by B. The utmost that the plaintiffs can claim, under the allegations of the bill, is that the title should not vest in the company until the consideration of the grant is performed. The grantee or his assigns, being in possession, the remedy of the grantor in such case, is clearly to enter as for condition broken. Messersmith v. Messersmith, 22 Mo. 370, 372; Moore v. Wingate, 53 Mo. 399; Warner .v
Again, it is equally established that conditions of this character can only be reserved for the grantor and his heirs. “A stranger cannot take advantage of the breach of them.” 1 Shep. Touch., 149; 4 Kent Com., 56; Bangor v. Warren, 34 Me. 329; Marwick v. Andrews, 25 Me. 530; Cross v. Carson, supra. What right, even conceding that a remedy exists for breach of the condition in question, do the complainants show in themselves to bring this action ? The bill contains no averment that plaintiffs are heirs, or such legal representatives of the grantor as would give them a standing in court to assert a forfeiture or enter for the condition broken. The only averment of the petition, touching this important fact, is that “ these plaintiffs are the only parties interested in said real estate adversely to defendant.” This is a mere conclusion of law, and not the statement of facts constituting a cause of action in the plaintiffs. How did they become interested? By inheritance, devise or purchase ? and from whom came their interest ?
For the reasons given in the foregoing opinion Hough, C. J., and Henry, J., were of opinion that the judgment of the circuit court should be affirmed.