6 Mo. 605 | Mo. | 1840
Opinion of the Court by
Judge McGirk absent during the remainder of the present term.
The complainants in their bill state that they are the purchasers of a tract of land lying in said county of Franklin. That said tract of land was originally the property of one John Caldwell, who sold it, along with other land thereto adjoining, to said Pritchett, who sold the same to the defendant, Truesdell, to one William G. Owens, and to one Joseph McCoy, in separate parcels, giving to each a bond for a title to his respective part, whenever said Caldwell should make to said Pritchett a title to said tract of land; that the complainants purchased the interest of said McCoy; that Pritch-ett, when he sold the land, as aforesaid, to said Truesdell, Owens, and McCoy, put each 6f them into the possession of his respective parcel of land; that Pritchett had paid Caldwell for said land; and that Truesdell, Owens, and McCoy, had each paid Pritchet for the portion which each had respectively purchased from him, and each was entitled to a deed, for his land, that is to say, Pritchett to a deed from Caldwell, and Truesdell, Owens and McCoy, from Pritchett. That when said Truesdell and Owens applied to Pritchett to make them a deed, by agreement among themselves, Pritch-ett surrendered to Caldwell his bond for the title to said land, and Caldwell, in consideration thereof, did convey the said land to Truesdell, and that Truesdell in consideration thereof undertook to convey to Owens and McCoy, respectively, their several portions of said tract of land, according to the effect of the bonds executed to them respectively, by Pritchett; that in some short time thereafter Truesdell informed McCoy of this arrangement, and requested him to pass the title bond made to him by Pritchett over to William . G. Owens, in order to have a deed drawn agreeably to the • terms of -the bond, and that he Truesdell would execute it; that McCoy accordingly did deliver the title bond to said
To this bill Truesdell pleads the statute of frauds; and answering says, that he did purchase of Pritchett a tract of land on the Missouri river, in Franklin county aforesaid, in the year 1832, the legal title of which he understood when he purchased to be in one John Caldwell; that Pritchett at the time made him his bond for a title, to be made so soon as he could get a title made to him by Caldwell; that the said bond was some years ago delivered up to said Pritchett, and he cannot be positive as to the wording thereof, but believes the above to be substantially correct; that some short time after said purchase he paid Pritchett the- purchase mo
The answer further denies all fraudulent combinations for the purpose of defrauding McCoy; and alleges that in good faith he acquired the title with intention to convey to McCoy whatever interest he might be entitled to in the land conveyed to the defendant by Caldwell, and that he is still willing to do so when McCoy shall repay to him the above mentioned sum of one hundred and twenty-five dollars principal, and seven dollars thirty seven and a half cents interest, paid by him as aforesaid to Pritchett for McCoy. The answer also denies all combination with Owens, and all other persons to secrete the bond made by Pritchett to McCoy for a title to the land, or that he, Truesdell, knows any thing of said bond ■or of its contents, and asserts that the agreement betwixt McCoy, Owens, and the defendant, Truesdell, was to take deeds from the defendant for their parts of said tracts of land, with a reservation of sixty feet on the Missouri river as an .open way; and denies that he ever fold any one that 'he withheld the execution of said deed from McCoy in order to make him relinquish a part of said land on the Missouri river.
The statute of frauds is again insisted on in -the answer.
The complainants on their part gave in evidence a quit claim deed from McCoy for the premises.
John Caldwell, a witness for the complainants, testified, that he did convey a piece of land in Franklin county at a place called Washington, to William Truesdell, and that he understood from William Truesdell that Joseph McCoy had a claim on part of the land so conveyed by him., and that he was to convey the same to said McCoy agreeably to the conditional lines; that the land was so conveyed because they, Truesdell, Pritchett and McCoy, concluded that he, Caldwell, would not wish to make so many conveyances, as he understood from William Truesdell. The witness also stated that, to the .best of his recollection, he understood from Pritchett that McCoy had paid a part or .all for the land to
The witness being interrogated by Truesdell the defendant, stated that when Truesdell came to him for a conveyance he brought with him a bond on Pritchett, assigned to him the said Truesdall, for a tract of land which he Caldwell had sold to said Pritchett on the Missouri river, some months previous to the time he, Caldwell, deeded to Trues-dell, (the punctuation and language of the bill of exceptions are obscure.) It is probable the witness said that when Truesdell came to get a deed executed that he brought along with him the bond made by Caldwell to Pritchett for a title to sai d land, and that this bond was assigned by Pritchett to Truesdell.
The wife of the witness Caldwell also gave evidence and testified, that Truesdell admitted his obligation to convey to McCoy, whose improvements were contained within the tract conveyed by her husband. The same witness stated, that Pritchett was owing her a trifle, and said he could not pay until he could see McCoy, who he said was owing him, and that he said as soon as he could go and see McCoy he wanted to pay her, and also to purchase a black girl: that when he went and saw McCoy, he sent for her to come and get her pay, and also bought a negro.
Otis Turner, another witness on the part of the complainants, testified, that some time in the month of September or October 1833, he'was present at a settlement betwixt McCoy and Truesdell; that Truesdell had sent for McCoy to come to his house and bring with him all his papers, as he, Truesdell wished to have a final settlement with said McCoy; that McCoy came and brought his papers, and among them some notes on Truesdell, that he was present at the settlement, and .that there appeared to be a question concerning some money which McCoy had paid Truesdell, which McCoy said could go in payment for a piece of land purchased from one William Miller, which Truesdell appeared not to understand, but at last admitted and settled in that way. This witness further testified, that he did not un
The same witness, on cross examination, stated, that he did not recollect of a receipt being brought forward on the day of the settlement, given Truesdell by Pritchett, for money paid him by Truesdell, amounting to §125,00 principal, and thirty-seven and a half cents interest, which should have leen paid Pritchett for McCoy by the said Truesdell, and that Truesdell lifted papers from McCoy, but does not recollect of McCoy lifting any from Truesdell at the above mentioned settlement.
Joseph McCoy testified that on or about the 1st of Febru-arp, 1832, he purchased from Jesse Pritchett a tract of land lying on the Missouri river, containing about thirty-six acres; that he took Pritchett’s bond for a title to the same, and gave Pritchett his obligation for the páyment of the price.— Shortly afterwards, the witness states, that he paid Pritchett for this land, and took in his bond. About the same time
It was agreed between the parties that the following facts should be evidence in the cause, viz: that a settlement of accounts between the parties took place on the 20th July 1833, and that Truesdell executed his note to McCoy for about $19, this is the same settlement mentioned in Turner’s deposition, that this note was afterwards sued on, and that Truesdell gave in evidence several items as an off set and had judgment for eight dollars.
The defendant Truesdell then gave in evidence on his part a paper purporting to be a receipt from Jesse Pritchett to said Truesdell for $125 principal, and $7,31 cents interest, dated 5th August 1832, which sum was received on a note held by me on Joseph McCoy, the said note having been given me for' land sold to said McCoy on the river, in Franklin county, which land adjoins the land of the above named William Truesdell and W. G. Owens: this receipt purports to be signed by Pritchett.
Nathaniel Bell, a witness on the part of the defendant, testified that in a conversation betwixt himself and said McCoy in the subject of the sale of this property to Daniel B. and Larkin S. Callaway, he asked McCoy what he would do concerning the river part that William Truosdell claimed, and that McCoy answered that he was to give them three hundred dollars in property, viz: in hogs, cattle, corn, wheat, and household furniture, &c., to pay said Truesdell for the above mentioned land, and that they might get the title from the said Truesdell in any way they could, that he did not care if the Callaways got the title for fifty dollars.
Daniel Waldo on the part of the defendant, testified that in August or September 1832 he.saw William Truesdell pay a note which said Pritchett held on Joseph McCoy, this
The defendant having produced seven witnesses to prove that McCoy was not to be believed on his oath, closed his case.
On this testimony the circuit court found that McCoy ‘had repaid to Truesdell the .money which he had paid to ‘Pritchett for him, and decreed that Truesdell be enjoined from proceeding in his action of ejectment against the complainants, and also decreed that he should convey to them that part of the land conveyed to him by Caldwell, which Pritchett had by his bond covenanted to convey to McCoy.
These were the points substantially made by the defendants counsel.
1st. That the purchase money not having been paid by McCoy to Pritchett, either on the day it became due or at any other time, Pritchett might lawfully sell the land to another, and the purchaser would hold it divested of any equity which McGoy, or his assignee’s might have against Pritchett.
2nd. That the statute of frauds is a complete bar to the prayer of the bill for a specific performance, there being no contract other than verbal betwixt Truesdell and McCoy or his assignees, the complainants in this bill
The evidence on the part of the appellant, Truesdell, that he paid the consideration for this land in controversy is the receipt of Pritchett for the money, and the testimony of Waldo that he saw Truesdell in August 1832, pay to Pritch-ett, at the house of Pritchett, this note of McCoy made by him to Pritchett. This is of so equivocal a character, that it scarcely deserves consideration. In the first place there is not the slightest evidence that McCoy ever requested him to pay it, or that he even ever promised after the pretended payment to repay Truesdell this money, which, ifit ever were paid by him to Pritchett, he could not recover even in an ac
Rut the acts proved to have been done, are such very slight evidence of payment, that they scarcely deserve consideration. ■ It certainly was no yery difficult matter for Pritchett to write Truesdell a receipt for the money McCoy owed him, and as little trouble for Truesdell to count out to Pritchett in Waldo’s presence the amount of the principal and interest due on McCoy’s note. There is not the slightest evidence that this receipt ever came to the hands of McCoy. And the only evidence that the note ever came-into his hands is the declaration of Truesdell himself, which-it cannot surely be pretended ought to be listened to in a court house,.not being given in answer to any matter stated in the bill. It is quite incredible that any man who is suffered to be his own guardian would be so silly, had he paid this money as Truesdell pretends to have done, as to content himself with such equivocal evidence of the fact, as a receipt of Pritchett. It makes the matter appear worse, too, that Pritchett, the only person capable of explaining these equivocal acts, was made a party to this bill, and has not answered, and denied the payment by McCoy. But John Caldwell states in his deposition,that to the best of his recollection, Pritchett told him that McCoy had paid “ a part or all' for ike land to said Pritchett.” Polly Caldwell, the wife of John Caldwell, ’vendor of this land,, also states circumstances strong!)? conducing to prove the payment to Pritch-ett by McCoy of all his demand. She said that Pritchett owed her a trifle and could not pay her till he saw McCoy,, and that he said as soon as he could go and see McCoy he-wanted to pay her and to buy a black girl; and when he went and saw McCoy he sent for her, and paid her, and bought a negro. But if it were established as a certainty that this-
But on the cross examination by Truesdell, Turner tells “ that he does not recollect of a receipt being brought forward on the day of the settlement, given Truesdell by “ Pritchett for money paid him by Truesdell, amounting to “ one hundred and twenty-five dollars principal, and seven “ dollars and thirty-seven and a half cents interest, which 4i should have been paid Pritchett for McCoy by the said ■“ Truesdell.” This is a literal copy, made so lest injustice should be done the defendant. This receipt must be that spread upon the record by the defendant, appellant here, as evidence that he had paid this money to Pritchett for McCoy. It can hardly be conceived to be possible that he who had called on McCoy fora final settlement on that day when the title to the land was to have been made, and whenMcCoy refused the deed, could have forgotten so large an item in his account. He might by possibility have been simple enough to have given, as he pretends in his answer, the note over to McCoy, and to have reserved this receipt as evidence of what he pretends to have paid for McCoy. But on such an occasion, when he fell in debt too to McCoy, this receipt could not have been forgotten. The conclusion then^ to
He says, in the second place, that this promise to convey to McCoy was verbal, and relies on the statute of frauds. It does not appear in evidence that the bond of Pritchett to McCoy was recorded, but Truesdell had actual notice of it, and by the 31st and 32d section of the act to regulate conveyances of land, found on page 123 of the digest of 1835; that is sufficient to divest him of all pretensions to any right either in law or equity. But the justice of mankind has stamped such acts with disgrace before the statute was made See Story’s Equity Jurisprudence, vol. 1st, page 383, section 395. But without- resorting to the evidence of McCoy at all, who declares that he paid the purchase money to Pritch-ett, the testimony of John Caldwell and his wife raise very strong presumption that McCoy had paid Pritchett the purchase money. If any further evidence were required as against Truesdell, his unadvised and gratuitous declarations made in his answer, so inconsistent with the date of his receipt, would furnish that evidence. But Pritchett, it is evident admitted that he had received pay; he admitted it by his act in directing Caldwell to convey to Truesdell, that he might convey to McCoy; and Truesdell, when on 20th July 1833, he made a deed to Owens, and tendered one to McCoy, admitted that he had no authority from Pritchett to withhold the title from McCoy. His own answer, the date of his receipt, and Waldo’s testimony, all show that it was not till the 5th August that he thought of retaining the title of this land, under pretence that McCoy had not paid Pritchett. But Pritchett, by failing to answer this bill, has admitted that he has received the price of his land, and it is difficult for me to conceive how Truesdell becomes authorized to complain of McCoy’s tardiness in paying him. Pie does not pretend that he purchased the bond of Caldwell from Pritch-ett; but only that as agent for McCoy he paid Pritchett McCoy’s debt. In every view I have taken of the subject, the decree of the circuit court is in my opinion correct.
1st, If Truesdell paid the money, and it has not been repaid, he has thereby acquired no lien on the land, and has even lost his money, unless he can prove either a previous request by McCoy, or a subsequent promise to pay.
But some reliance it seems in the argument of the cause was had on the testimony of the witness introduced to establish an admission on the part of McCoy that Truesdell, had paid Pi’itchett for McCoys land. This testimony has been before stated in part. He says that some time in the last of April or first of May 1835 McCoy sent for him (told him,) that he had sold the land to the Callaways provided they could raise the money, that in case they could not. he promised the witness to let him have it; the price was according to him $1500. The witness then asked him what he would do about the river part that William Truesdell claimed, and McCoy informed .him that he was to give the Callaways three hundred dollars in property viz: hogs, cattle, corn, wheat, household furniture &c. &c., to pay the said William Truesdell for the above mentioned land, and that they might get the title from Truesdell in any way they could, and that he McCoy did not care if they got the title for fifty dollars, and the witness states that he afterwards saw such property of McCoy in possession of the Callaways.
In order to make out the case the counsel require us to