7 Mo. 134 | Mo. | 1841
Opinion of the Court by
The appellants filed their bill in chancery, praying an injunction against two judgments at law, obtained against them in favor of the appellee. The complainants allege in
The defendant, in his answer, admits the contract of sale as set forth in the bill, denies all allegations of fraud, avers that he has a good and indefeasible estate in fee simple, and had one, at the time the contract was made. Defendant also denies that he is in failing or doubtful circumstances, on the contrary, that to secure Shields and Hickerson in the four hundred dollars paid, he had deposited with one William Gibson, a bond on two responsible men for $840.
From the bill of exceptions, it appears, that complainants introduced witnesses to prove the land worth, fifteen or twenty dollars per acre, if the title were good.
A witness for defendant proved, that the plaintiffs had given him permission to haul dead timber from the land, and that plaintiffs had hired a wagon and team from him, which they employed about a month in hauling saw logs from land lying in the direction of the land in controversy; and the witness knew of no other lands claimed by plaintiffs lying in that neighborhood.
The objections taken to the decree of the chancellor are, that the complainants were ordered to pay costs in the suits at law and equity, and were not allowed interest upon that portion of the purchase money which had been paid.
To ascertain the propriety of the decree for costs, it will be necessary to look at the facts presented by the record, at the rendition of the decree. The bill is framed with a double prayer: after charging that defendant had no title, it asks a specific performance, provided it should appear to the court, upon inspection of the title papers, that their surmises, in that particular, should turn out to be false; but if, on the other hand, the defendant should produce no title, or one which might be esteemed defective, they ask a recision of the contract, and a return of the purchase money.
The answer denies every allegation in the bill, at least every one tending to impute any fraud or remissness of duty to the defendant. To this answer is filed a general replication, and no proofs whatever are offered. Upon this state of facts, it appears to me, without a compromise, the chancellor must have dismissed the bill.
Before the passage of our act regulating costs in chancery proceedings, the subject ofcosts was a matter which dressed itself to the sound discretion of .the chancellor, (Coleman v. Moore, 3 Littel,357.) The ¿Oth section of ' . , ,. . , act concerning costs, appears to be still more explicit than the rule which prevailed previously to its passage. That section provides, that where the bill is dismissed, at the instance of either party, tne complainant shah pay his costs; “and in all other cases in equity, it shall lie in the discretion of the court to award costs or not.” Before the passage of our act regulating costs in chancery
It might be very well doubted whether, under this provision of our statute, an appellate court would have any right . ,. . r ■ to interfere with the exercise of this discretion. It is at least apparent, that a very palpable case must be made out to authorise such interference, and no such case is presented by this record.
InTelation to the interest upon the purchase money, which . ,, . , u, the plaintiffs claim, the general rule appears to be well tied. The presumption in equity will be, that when the
Judgment affirmed.