Powell v. Hunter

257 Mo. 440 | Mo. | 1914

OPINION.

BOND, J.

(After stating the facts as above).-There is only one question in this case, which is, what was the nature of the purchase by Plunter from Cannady of the land in dispute. If that transaction was the basis of Hunter’s title to and possession of the lands, then the law will not permit him to retain possession of the lands and refuse to pay the purchase money, however defective the title may be which he acquired from Cannady, who was the grantee of the assignor of intervenors. [Harvey v. Morris, 63 Mo. l. c. 477; Lanyon v. Chesney, 186 Mo. l. c. 555; Smith v. Lindsey, 89 Mo. 76.]

On the other hand if Hunter had the legal title to the land and took possession thereof under that title and afterwards took a conveyance of whatever title Cannady had in order to strengthen his own and while asserting his own to be the valid title; then he is not precluded from setting up that title as a defense to an action brought by the grantor, Cannady, or his representatives, to enforce a lien for unpaid purchase-money under a contract between Cannady and his grantor. [Funkhouser v. Lay, 78 Mo. l. c. 465; Huth v. Carondelet Marine Ry. & Dock Co., 56 Mo. l. c. 206; Macklot v. Dubreuil, 9 Mo. 477.]

We are not prepared to say that intervenors have shown by the clear preponderance of the testimony that the purchase of defendant from Cannady was for the purpose of acquiring a valid title emanating from their father. About eleven years intervened between the contract between him and Cannady before the assertion of that title by anyone. The records of Pemiscot county did not show a clear deraignment of title from it to the father of intervenors. The record title from the county was apparently in A. A. B. S. West and while there is lack of positive evidence that this name had two A’s in the initials, yet he was shown to have been in the vicinity of the land in the prosecution of his business of surveying and the fair effect of the evidence to our minds, is that he was á real person and that the quitclaim from his heirs carried the title which was transferred to him from Pemiscot county. Another ■circumstance, not without force, as bearing on the conflicting evidence relating to the title of intervenors’ ..grantor, is the clear testimony emanating from the representative of Cannady, and his own declaration when he was alive, that the only reason he had not paid the full price for the land was that his grantor had not made him a title.

The burden of the proof in this case rests upon the intervenors. We are of the opinion that they have not sustained it by the clear preponderance of the testimony which is essential to a rendition of a decree in their favor.

II.

The contention of the appellants as to the character of the contract between Powell, their father, and Cannady, was resolved against them in the former appeal where, it was held that it was an unexecuted agreement and not a deed in praesenti.

It follows that the judgment is affirmed.

All concur.