61 Mo. 453 | Mo. | 1875
delivered the opinion of the court.
This action was by a vendor against a vendee, to compel specific performance by the vendee of a parol agreement concerning land.
The plaintiff avers that he has the fee simple title to 'certain lots which he specifically describes, consisting of six lots in the town of Mount Yernon and one lot adjoining the town particularly described by metes and bounds; that on the 19th day of November, 1861, he verbally sold these lots and land to defendant for the sum of $3,000, for which sum the defendant gave his three notes, all dated on the day of the sale — one payable on the 2oth of December following, another payable in twelve months from date, and the third payable in twenty-four months from date. The agreement was, as the petition alleges,, that plaintiff was to put defendant in
The answer of the defendant admits the execution of the notes for $3,000, and concedes that the property described in the petition was partly the consideration therefor, but avers that the agreement was for the purchase of these lots and a ten-acre lot of wood land adjoining, which is in the answer described by metes and bounds. The answer asserts that the defendant was put in possession of all these lots, including the teti-aere lot, and that he has continued in possession ever since and still is in possession. The answer avers that the purchase money for all these lots was $3,000, for which the notes referred to were given.
The answer then proceeds to enumerate various payments claimed on the notes, and a bill of items for work, and labor, and board, and money loaned and paid, which, in the aggregate, it is claimed, greatly overpaid the purchase money, and a judgment is asked for this overplus, and a decree divesting the plaintiff’s title to the lots .claimed to have been sold by plaintiff to defendant, as stated in the answer.
A replication was duly filed, putting in issue these defences. t
The following, among other issues, was submitted to a jury: “whether part of the consideration,for which the notes
Other issues were submitted to the.jury in regard to payments alleged on one side and denied on the other, and in regard to the state of accounts between the parties. As our determination is entirely independent of these questions, it is unnecessary to state them particularly, or the evidence which was given in respect to these issues in support of one side or the other.
The verdict of the jury on the issues is not stated in the record, but we may infer from the decree that it-was for the plaintiff.
The decree recites that, a motion to set aside the verdict of the jury having been disregarded, it is ordered and decreed by the court, upon the finding of the jury and the evidence, that the ten acres of land mentioned in defendant’s answer, (describing it), was not embraced in the contract made between plaintiff and defendant. The decree then proceeds to state the credits on the notes, which the court allows, and that the consideration of the notes was the property as stated by the plaintiff and not as stated by defendant; that defendant was placed in possession ; that there remained due on the notes $2,203.17. It was therefore ordered, adjudged and decreed that the plaintiff recover of defendant the said snm; and further, that upon the payment of the sum found due by defendant, the plaintiff execute a deed, &c., for the land so sold, and in default of such conveyance that the plaintiff be divested of all title to the same, and the same be vested in defendant. It was further decreed, that upon the defendant’s failure to pay said stun and costs within sixty days from the date of the decree, the said lands, or a sufficient amount thereof to satisfy this judgment, be sold; that the proceeds of the sale be applied as follows: first, that the plaintiff’s costs be paid, and second, this judgment, and third defendant’s costs, and the. residue, if any, to defendant; and if the property
The bill of exceptions contains a great deal of testimony relative to the state of accounts between the parties, which need not be recited. The only direct testimony in regard to the land sold was given by the plaintiff, and the defendant stated in his examination, as he stated in his answer, that the sale included the ten-acre wood lot adjoining the grass lot, both of which were outside of the town of Mount Vernon, but immediately adjoining it, and that he took possession of the wood lot as well as the other lots. Two witnesses stated that the defendant employed them, after the date of this purchase, to cut wood in the ten-acre lot, and they and others cut wood and poles during the winter and hauled them for Haley, the defendant. Another witness for defendant (Hendricks) stated that he was called on to draw up the notes for the purchase money of some real estate. Something was said about the plaintiff giving a title bond, and all this witness knew about the real estate was, that he understood from both parties “ that defendant was buying the plaintiff out.”
The plaintiff, on his examination, stated positively that the ten acres was not included in the purchase; “ that Hendricks drew up the notes, and that was the wind-up of the matter so far as that :deal’ was concerned.”
A witness for the plaintiff who admitted himself to be on bad terms with the defendant, stated that Haley told him whilst working on his barn that “the ten-acre tract east of the blue grass lot he could have got from Eli Paris if he had only thought of it.”
. This is all the evidence in the record on the subject.
It appears to be well established that a vendor may maintain a suit for a specific performance in all cases where the vendee can sue for a specific performance — that the remedy is mutual, upon the doctrine of courts of equity, that the vendor is a trustee for the purchaser as to the land, and the vendee a trustee for the vendor as to the purchase money. Suits of this kind by a vendor are, however, not frequent,
It is said by Mr. Fry, in his treatise on this subject, in explanation of suits by. a vendor for a specific performance where his remedy at law is complete, that “it will be apparent that damages will not place the vendor in the same situation as it the contract had been performed, for then, (that is, if the contract had been performed) he would have got rid of the land and all the liabilities attaching to it, and would have the net purchase money in his pocket; whereas, after an action at law he still has the hind and in addition damages, representing, in the opinion of a jury, the difference between the stipulated price and the price which it would probably fetch if resold, together with incidental expenses and any special damage which he may have suffered.” (Sec. 23.)
It is obvious that this passage of the compiler has no reference to such a ease as the present, where the vendor has the notes of the purchaser in his pocket, but to cases where the suit-at law must be for damages for not complying with the contract of sale.
But it is immaterial by what name the present action may be termed, whether for specific performance of the contract of sale or for an enforcement .of the vendor’s lien; it is in either event cognizable by a court of equity, according to the authorities cited in the text books, (see Story, Hilliard, Fry, passim), and the principles and rules by which a court of equity would be governed are essentially the same in either view of the purpose of the action.
Th'e prominent difficulty in this case is to ascertain what land was sold by plaintiff and what bought by defendant. It is agreed in all the cases on this subject that there must be no uncertainty about the contract — that it must clearly appear what is the contract sought to be enforced. The certainty need only be a reasonable one, satisfactory to the court, in regard to the subject matter of the contract and the cir
It will be observed from the statement of the petition and answer in the case now under consideration and the testimony of the plaintiff and defendant, that there is a material discrepancy between the subject matter of the alleged contract of sale set up by the plaintiff and that set up by the defendant, and that each party, on examination as witnesses, testifies to
After all it is obvious that the uncertainty of the contract remains, unless upon a question of this nature the court is
Moreover, it is alleged by the defendant, that it was agreed that a title bond should be executed, but it appears that none such was made, and no memorandum in writing was made to show what land was sold. Notes were executed by defendant, the vendee, but nothing further was done. Why was this omitted ?
The vendor here is applying for an execution of the contract. Why did he leave it in this uncertain state? No title bond was given, nor any memorandum of the property conveyed. The possession taken by the purchaser was of the land he understood to be embraced by the contract of sale. Suppose the purchaser was the plaintiff and asking a specific performance, and it was claimed that the ten acres were included in the sale, his possession of the ten acres would be the basis of his claim to take the case out of the statute of frauds. Would the court enforce a specific performance, at the instance of the purchaser, when the vendor denied the contract as stated, and there was no proof but the oath of the vendee ? There would be, in that case, the additional circumstance that the vendee took possession of all the lots
As the bill prays, in the alternative, that if the contract cannot be enforced, it may be rescinded and the parties placed in statu quo, so far as practicable, we think a decree in conformity to that prayer of the bill would be the most equitable way of settling the controversy. Previous to any final decree it would be proper to refer the unsettled accounts between the parties to a referee, and ascertain what amount had been paid by the defendant on his notes, and the amount of rents and profits due plaintiff, and the value of improvements, if any, made by defendant. The contract of sale then, what1 ever it may have been, should be declared null, the plaintiff be ordered to deliver up the notes and pay the defendant whatever may have been received on them, and the defendant decreed to deliver possession of the premises, accounting for the rents and profits, from the time he took possession. It seems to be well established, that a court of equity will not turn a party out of court, to pursue his remedy at law, where complete justice can be done by the court of equity, and this, although in its progress, the court may decree on a matter cognizable at law. (Cuthcart vs. Robinson, 5 Peters, 263.) In this case the plaintiff has thé legal title and the defendant’s notes, and it would seem that so far as he was concerned, his remedy at law was ample, but the court having jurisdiction of the case, as stated in the bill and asking in the alternative for recision, the court should proceed to settle the controversy, and we think it may be most equitably settled in the mode above suggested.
Judgment reversed and the case remanded.