98 Mo. 253 | Mo. | 1889
— This was an action of ejectment for forty acres of land in Greene county, commenced April 7,1884,
The obligation filed with the answer contains no description of the notes therein referred to. It appears from the evidence introduced by the defendant in support of this answer, that in October, 1879, Rose sold the land described in the obligation, other than the land in controversy, being the land conveyed to him by Dollison, for sixteen hundred dollars; that he died on the twelfth of March, 1881, at a place called The Mill; that at that time no one was living on the premises in controversy ; that Perkins was then a tenant of Rose, and living at his home place ; that in the following May, Rose’s widow moved to the home place, and Perkins moved to the premises in controversy, on which, prior to the fall of 1880, a man by the name of Clark had been living as the tenant of Rose. There was no evidence to warrant a finding that the absolute deed made by the defendant was intended by the parties as a mortgage, whatever the character of the original transaction may have been and there is no evidence bearing directly upon it. The parties themselves have placed themselves, by their own written agreement, upon a different footing ; the one by executing his note for the money upon the payment of
The position of the defendant is that of a vendee under an executory contract, the conditions of which he has failed to perform. There is not a particle of testimony that the amount due from Perkins to Rose was by agreement fixed at three hundred dollars, or that Rose agreed to await his convenience for the payment of that amount. His repeated declarations given in evidence by the defendant were to the effect that he was willing to let Perkins have his land back or to make him a deed upon payment of what was due him. The only evidence of any agreement between them as to amounts was that they at one time agreed that the amount Perkins had paid upon the land was about fifty dollars. But conceding that such was the agreement the position of the defendant is in no way bettered. Such an agreement could only have given him a reasonable time in which to pay, and when this suit was begun, more than four years had elapsed since the agreement was made, his creditor had died, and the time had elapsed within which his estate ought to have been wound up and distributed, and yet he did not pay or offer to pay. The death of a creditor would mature such a debt, certainly within two years thereafter, as the extreme limit of a reasonable time.
As there was no evidence of any such agreement, of course defendant did not go into possession under it. The casual remarks of deceased about the tenant, the wheat that was raised on the place and his intention to make a deed, must all be read in the light of his reiterated expression that all he wanted was his money, and of the preparation that defendant says he was making to pay it before and at the time of his death, and
Upon any foot that this case can be placed, it is not seen how the plaintiffs’ action could be defeated on the plea and evidence in the case. “ Where a party goes into possession under a contract of purchase, and makes default, he is liable to be turned out by an ejectment.” Gibbs v. Sullens, 48 Mo. 237; Fulkerson v. Brownlee, 69 Mo. 371. “ A mortgagee, in the absence of an agreement to the contrary, may maintain ejectment for the mortgaged premises, after breach of the conditions.” Siemers v. Schrader, 88 Mo. 20. For three years before this suit was brought, the law afforded the defendant a tribunal and a speedy remedy on his title bond by which he could have obtained the legal title upon the payment of the balance due Rose. R. S. 1879, sec. 173 et seq. Or, if he chose to treat the deed and bond as a mortgage, he could have paid the personal representatives the balance due. In the latter case, he would have had a standing in a court of equity that would have authorized a decree of title. In the former, he would not have needed its assistance. The defendant has no one but himself to blame, on his own statement, if his possession is disturbed. He had but one thing to do, and that was to pay. That thing he didn’t do, doesn’t offer to do in this case, couldn’t have done if he was ever so willing and had brought the money into court for that purpose as there was no party to the suit whom the court could authorize to receive it. No one that had any right to it. For it goes without saying that the judgment of the circuit court in favor of the widow and heirs of Rose for the amount which it found to be due as the balance of the purchase money on the land was
The judgment is reversed and the cause remanded.