Stillwell v. Hamm
Decision Date | 18 March 1889 |
Citation | 11 S.W. 252,97 Mo. 579 |
Parties | Stillwell, Plaintiff in Error, v. Hamm et al |
Court | Missouri Supreme Court |
Error to Platte Circuit Court. -- Hon. Geo. W. Dunn, Judge.
Reversed and remanded.
Samuel Hardwicke and James M. Carpenter for plaintiff in error.
(1) A careful reading of the petition will show first, that there is but one cause of action -- a "bill to redeem." (2) That this cause of action is not barred by the statute of limitations; because it accrued on the first of January 1882, and suit was instituted on the fifth of October, 1885. (3) That the other parties, Bonifant, etc., are only made parties because the statute requires that they shall be made parties -- as they claim an interest -- so that their rights if any, may be determined. The ground on which the court sustains this demurrer was the fifth cause set out in it, the statute of frauds. That question is fully settled in the case of O'Neil v. Capelle, 62 Mo. 202. The sixth and last ground of the demurrer has no foundation -- in fact -- it says: "There is no allegation that said plaintiff offered to carry out said agreement." The petition alleges that the plaintiff had fully performed the agreement and now that the debt is fully paid, asked that the land be restored to him, as it should be.
Jas. W. Coburn for defendants in error.
(1) No cause of action is stated. It is not alleged that Jacob Hamm owned the note, mortgage and judgment, or that he, or any of the defendants, purchased the land under the foreclosure. (2) The alleged agreement was verbal and within the statute of frauds. 1 Jones Mort. Real Prop. [3 Ed.] secs. 323, 331, 332; Howland v. Blake, 97 U.S. 624; Levy v. Brush, 45 N.Y. 539; Richardson v. Johnsen, 41 Wis. 100; Wilson v. McDowell, 73 Ill. 514; Stephenson v. Thompson, 13 Ill. 136; Perry v. McHenry, 13 Ill. 227; McClintock v. McClintock, 3 Brewst. [Penn.] 76. (3) The agreement was a conditional sale. Slowey v. McMurray, 27 Mo. 113; Turner v. Kerr, 44 Mo. 429; McNamara v. Culver, 22 Kas. 661; Price's Heirs v. Evans, 26 Mo. 30; Mansur v. Williard, 57 Mo. 347. (4) The agreement was made in January, 1875, and action brought in October, 1885. The statute of limitations is a bar. Hunter v. Hunter, 50 Mo. 445; Rogers v. Brown, 61 Mo. 187. (5) The discrepancy of twenty dollars between the execution and the judgment did not render void either the execution or sale thereunder. It was known and waived by the execution defendant. Freeman on Ex., sec. 43; Ellis v. Jones, 51 Mo. 181; Davis v. Kline, 76 Mo. 310; Lewis v. Morrow, 89 Mo. 174; Tatum v. Holladay, 59 Mo. 422. (6) Several causes of action were improperly united in the petition, and in the same count. R. S., 1879, sec. 3512, and note b. (7) The several causes of action affected the defendants differently, and different judgments were asked as to them. R. S., 1879, sec. 3512, and note b; Doan v. Holly, 25 Mo. 257; s. c., 26 Mo. 186; Robinson v. Rice, 20 Mo. 229. (8) So far as the suit was intended to quiet title, or to remove a cloud on title, it was improperly brought. R. S., 1879, sec. 3562.
This case presents for consideration a judgment rendered by the trial court upon demurrer to a petition. The questions involved will best appear from the language of the pleadings.
The demurrer was as follows:
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