Mason v. Pitt

21 Mo. 391 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

It is impossible to ascertain from the record, although it contains twenty-eight pages, the point on which this cause turned in the court below. When parties are to be subjected to the expense of an appeal to the Supreme Court, it would be well enough for the record from the court below to show the point on which the cause was decided.

The deed offered by the plaintiff in support of his title was rejected, but on what ground we are left to conjecture. On the state of the pleadings, we do not see wiry judgment was not entered for the plaintiff, as the defendant does not in his answer deny but that he entered upon the lot for which this suit was brought. The issue made by the pleadings was, whether tbe defendant bad entered upon the lot or piece of ground which the plaintiff claimed, and not whether the plat of the town in which the lot. was represented to be was recorded or not. The defendant does not deny but that he is in possession of the piece of ground claimed by the plaintiff. Where, then, was the issue, according to the pleadings ?

If the defendant intended to rely on the defence hinted at in his answer, but which was not stated in such a way as to deserve the notice of the court, that the plat of the town in which the lot was described to be, had not been acknowledged and recorded, it should have been stated directly, and in a way that nobody could have mistaken his design.

The case of Downing v. Ringer, (7 Mo. Rep. 585,) decides that the proprietor of a town, the plat of which is unrecorded, cannot recover the purchase money for a lot sold in such town, inasmuch as the penalty imposed on the vendor for such an act implies a prohibition, and the courts cannot aid him in doing that which is forbidden by law.

If a vendee of a lot, in such a town, knowing that the plat is unrecorded when he purchased, should bring an action to enforce a specific performance of the contract of sale, he might be met with the statute. But, in this case, there is nothing showing that the vendee was affected with any notice of the fact that the plat was unrecorded, and without such notice he is an innocent purchaser.

But the answer to this whole matter of the plat being unrecorded is, that the contract is executed, the title has passed, and the law imposes no penalty on the vendee.

The other judges concurring, the judgment will be reversed, and the cause remanded.