94 Mo. 482 | Mo. | 1887
This is an action of ejectment to recover possession of certain lands in Greene connty. In support of their title, the plaintiffs, who are the heirs of P. T. Simmons, deceased, put in evidence a sheriff’s deed conveying to said P. T. Simmons all the interest of defendant, Thomas O’ Callahan,, to the land sued for. It appears from this deed that on the thirty-first of May, 1881, a judgment was rendered in the circuit court of Greene county in favor of one Lander Sell, against said O’Callahan, for $54.75 and $4.40 for costs, which judgment was assigned to Simmons & Hubbard; that on this judgment an execution was issued on the seventeenth of September, 1881, which was levied on the land in ques.tion, and at a sale made thereunder, on the third of December, 1881, P. T. Simmons, the ancestor of plaintiffs, became the purchaser thereof for twenty-five dollars. Said P. T. Simmons was a member of the law firm of Simmons & Hubbard.
To overcome the right of plaintiffs to recover on this deed, John O’Day was introduced as a witness by defendants, and in substance testified that he, in conjunction with his brother, T. K. O’Day, were the attorneys of defendant, O’Callahan, in a replevin suit, in which he was plaintiff and Lander Sell was defendant; that, on the trial, a part of the property in controversy was found to belong to O’ Callahan, and a part to Sell, for which each respectively recovered judgment against the other, as well as a proportionate part of the costs ; that execution was issued against the respective parties; that, under the execution issued against Sell, his land was sold at the November term, 1881, of the circuit court of Greene county, and was purchased by said T. K. O’Day for thirty-five dollars; that, under an execution
Simmons died in April, 1883, without having made a deed, and without having made a claim of possession from O’Callahan. At the time this contract was made, and prior thereto, O’Callahan was in possession of the land, and remained in possession after it was made, receiving the rents and profits. The evidence of this witness, as to the contract, was corroborated by that of O’Callahan, and by the fact that, after T. K. O’Day’s death, which occurred in November, 1883, a blank sheriff’s deed to the land of Sells was found unexecuted among his papers. The circuit court found that these facts did not constitute such an equitable defence as to prevent plaintiffs from recovering possession of the land,
Counsel for plaintiffs contend, that notwithstanding the fact that O’Callahan fully performed his part of the contract in paying the purchase money, it was not thereby taken out of the statute of frauds, and unless it was further shown that he took possession of the land under the contract, the equitable defence relied upon cannot prevail, and that O’ Callahan being in possession when the contract was entered into, his subsequent and continuing possession could not be referred to the contract. The defendant’s counsel, to establish the proposition, that, when one party to a verbal contract, which, by the statute of frauds, is required to be in writing, has fully performed his part of the contract, that the statute affords no defence to the other party, have cited ns to several cases, of which the case of Self v. Cordell, 45 Mo. 345, is a representative, in which it is said that, “ it is the established doctrine of this court, and the settled law of this state, that where an agreement not in writing has been wholly performed on one side, the other party thereto cannot interpose the defence of the statute of frauds.”
It may be said of this case and thé class of cases it represents, that it related to a contract not to be performed within a year, and while the logic of these cases might apply to contracts for the sale of real property, it has not been .so applied by this court; as will be seen by reference to the cases of Galway v. Shields, 66 Mo. 314, and Charpiot v. Sigerson, 25 Mo. 63, it being said 'in the case last cited, that payment of the purchase
Conceding the rule to be as above stated, and as counsel for plaintiffs contend it is, the question remains, do the facts in evidence bring the contract relied upon within the operation of it. It is claimed that they do not, for the reason that O’Callahan’s possession, subsequent to the contract, must be regarded simply as a continuance of his prior possession, and cannot be referred to the contract. This position, we think, cannot be maintained, in view of the evidence of O’ Day, to the effect that it was agreed that each party should retain his land, as if no sale had been made, that is, Sell and O’Callahan. No other inference, can be drawn from this, than that the possession of each of these parties should continue, especially so in view of the further fact that Simmons, up to the time of his death, made no further claim to the land, and allowed O’Callahan to take the profits. The contention that, before O’Callahan’s possession, after the contract was entered into, could be referred to it, that he ought to have surrendered the possession he had, and then taken possession under the contract, is extremely technical.
It seems to be admitted that if O’Callahan had given the possession he had to Simmons and then entered into possession, that this, in connection with the fact that he had paid the purchase money, would have taken the case out of the statute. It seems to us that, under the circumstances of this case, and especially in view of the fact that it was agreed that O’Callahan should retain the land as if no sale had been made ; that the law did not require that he should go through the formal ceremony of delivering up possession to Simmons, and then going back into possession under
Judgment reversed and cause remanded,
