| Mo. | Aug 15, 1836
Opinion delivered by
This was an action of assumpsit, instituted by Leak v. Elliott, in the Ralls circuit court, to recover back a sum of money paid by the appellant to appellee on a parol contract, entered into between the parties, then resident in the State of Kentucky, for the conveyance by Elliott to Leak,, of a tract of land tying in said State of Kentucky, Elliott pleaded non assumpsit and the statute of limitations,.and had a verdict and judgment; from which Leak has appealed to this court. The facts are preserved by bill of exception, from which it appears that about sixteen years before the institution of this suit, Elliott sold Leak a tract of land in the State of Kentucky, where they both resided at that time, for the sum of two hundred dollars, which Leak paid to Elliott. That Elliott put Leak into possession of the land, who proceeded to split rails upon the land, and after working thereon for a day, was threatened with a suit, if he did not desist: and thereupon desisted from working further upon said land, and abandoned the possession thereof to some person having a counter claim. No deed of conveyance was ever executed by Elliott to Leak, but it was proven by several witnesses, that Elliott admitted a short time before the institution of this suit, that he had received from Leak two hundred dollars for the land. - That Leak had no writing to show for it; that he had never denied it, and was willing at any time to make Leak a deed for the land; either a general warranty deed or such deed as he held &c. Upon this state of facts, the plaintifi’ in the circuit court moved for the following instructions to the jury: 1st. That if they shall believe from the evidence that the money demanded was originally due; and that from the acknowledgment of the defendant, it now remains unsatisfied, then they must find for the plaintiff.
2nd. That if they believe from the evidence, that the money demanded was given in consideration of a parol contract concerning the sale of land, that the said contract is void in law.
3rd. That if they shall believe from the evidence in the cause, that the defendant acknowledged within five years last past, before the institution of this suit, that he had received two hundred dollars from the plaintiff, in con
3rd. That if they believe from the evidence, that the acknowledgment of the defendant was made with a view to a compromise, and to bury the hatchet or make peace, it.is not binding on the defendant, except for the purpose made by the defendant. Which instructions prayed for .by the defendant, were given by the court: to the giving of which, the plaintiff excepted.
The plaintiff then moved for a new trial, because the verdict was against law and evidence; and because the court refused to give proper, and gave improper instructions to the jury. Which motion was overruled by the circuit court, and excepted to by the plaintiff’s counsel.
It is now assigned for error, that the' circuit court misdirected the jury, and refused to grant anew trial.
It is not shewn how the laws of Kentucky would regard this contract, or whether a parol contract for the sale of land, would or would not be valid. We take it, that the instructions were predicated on the belief that the laws of Kentucky on this subject, are like the laws of Missouri: and we may know, apart from the record, that they are so: yet, we cannot undertake .judicially, to know the laws of Kentucky. The remedy upon the contract, must be enforced according to the laws of Missouri. And the second instruction given for the defendant, was clearly wrong. A promise to pay upon condi