Kneale v. Price

29 Mo. App. 227 | Mo. Ct. App. | 1888

Philips, P. J.

The petition charges that plaintiff and one Smith, being the owners of adjoining lands, by agreement, erected a division fence, plaintiff building-the north half, and said Smith the south half, each to own and maintain his part of said fence; that, on the thirty-first of December, 1881, Smith sold his land to-defendant, Price, and put him in possession of the same ; and at the time of the transfer defendant was notified of the arrangement between plaintiff and Smith, and of the obligation of each to keep in repair and maintain his part of said fence, and accepted, acquiesced in, and consented to, said agreement, and took charge and control of said fence, and thereafter it became the duty of defendant to keep and maintain said fence ; that plaintiff performed his part, but defendant failed and refused to perform his part, of said agreement, but suffered his part of the fence to get down and out of' repair, whereby plaintiff sustained damages, etc.

Yerdict and judgment for plaintiff for one dollar. Defendant has appealed.

This action is not predicated of a statutory partition fence. The fence to which the statute applies is such as is provided for by section 5656, Revised Statutes. A partition fence built jointly by parties under agreement is not subject to the incidents of a statutory fence. The petition is predicated of a division fence built under contract between adjoining land-owners. For the rights, obligations, and duties of the parties we are to look alone to the private contract. The plaintiff in this action must recover, if at all, upon the facts of the cause of action stated in the petition. What are they % That the plaintiff and one Smith being the owners of adjoining lands, by agreement, erected the division fence between them, which agreement bound the plaintiff to build and maintain the north half, and Smith the south half thereof. This it may be conceded was sufficient, as between plaintiff and Smith, to bind them to the obligation of keeping up their respective portions of the fence. But, being a mere parol contract, it was not such an obligation as ran with the land, so as to attach the burden to the land in the hands of a subsequent purchaser by the mere act of purchase. This is conceded ; and the petition, also, recognizes it. Therefore, in order to fix a liability upon the defendant, he is proceeded against as a subsequent purchaser with notice, and not otherwise. The averment is, that “at the time of the transfer defendant was notified of the agreement between plaintiff and Smith, and of the obligation to keep in repair and maintain his part of said fence, and accepted, acquiesced in, and consented to said agreement.” So it at once becomes apparent that we must wholly put aside, as outside of the issues, plaintiff’s suggestion, that, although the defendant had no such notice at the time of his purchase, and did. not then consent to such agreement, yet, if afterwards he learned of the agreement between plaintiff and Smith, and made no objection thereto, and recognized the existence of the fence as a partition fence, the plaintiff should recover. If defendant did not buy with such notice, and did not then consent to such agreement, but afterwards acquiesced in the partition of the fence, the petition should have counted on this new agreement, which would be wholly independent of the contract between plaintiff and Smith, [and must stand upon a new consideration. This is too clear for argument or authority to be called to its support.

Did the evidence support the allegations of the petition ? It wholly fails to show that defendant, at the time of his purchase from Smith, had any notice of the alleged agreement respecting the fence. Defendant was not even in the state at the time. He had seen neither the plaintiff nor Smith. The purchase was made for him by one Evans. To show notice the plaintiff took and read the deposition of Smith. He testified that he had no recollection of stating to defendant anything about the agreement. He was not even questioned as to whether he made such statement to Evans. The plaintiff never saw the defendant until two months or more after the purchase. He testified that he met the defendant at some public sale, and told “ Price what part of the fence was his. I told him I owned the north part of the fence.” On cross-examination he could not tell the time and place where he had his first conversation with defendant. “I told him I owned the north half, and Smith the south half of it; and that he could tell where his part commenced, as it was. built of eight-foot rails; he said he understood so; he did not tell me who informed him or how he heard it. Price was not in this country at the time the land was sold to him ; he lived in Indiana. A man by the name of Evans bought the land of Smith for Price.” There is absolutely nothing in this to show that defendant, at the time of the purchase, knew of the agreement, or that he knew what the agreement was at any time. Neither was there any evidence that defendant ever made a -single repair on this fence before February, 1883, more than a year after the purchase. No court should permit a verdict to stand on such evidence, as proof of notice of an agreement between plaintiff and Smith at the time of defendant’s purchase, and of his acceptance of its terms. Any such deduction made by a jury would be from the veriest conjecture, .and not from any fact established by evidence.

The demurrer to the evidence should have been sustained. Judgment reversed.

All concur.