Veth v. Gierth

• Decision Date: 16 May 1887
• Citation: 4 S.W. 432,92 Mo. 97
• Parties: Veth, Appellant, v. Gierth
• Court: Missouri Supreme Court

4 S.W. 432

92 Mo. 97

Veth, Appellant, v. Gierth

Supreme Court of Missouri

May 16, 1887

Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.

Affirmed.

Dinning & Byrns and L. R. Tatum for appellant.

(1) The contract was taken out of the operation of the statute of frauds by the act of the defendant in paying part of the purchase money. Galway v. Shields, 66 Mo. 313, and cas. cit.; 3 Pom. Eq., sec. 1297, note 2. (2) The defendant's taking possession of the real estate, under and by virtue of his contract with the plaintiff for the purchase thereof, removed the case from the operation of the statute of frauds. Young v. Montgomery, 28 Mo. 604; Price v. Hunt, 29 Mo. 171. (3) There is no evidence in this record to support the finding and judgment of the trial court, and this court ought to reverse this judgment and render judgment for the plaintiff for eighteen hundred and fifty dollars, together with interest and costs, and direct that the land in controversy be sold, or enough to satisfy this judgment. (4) The answer of defendant discloses that he has no defence on the merits to plaintiff's cause of action.

Wislizenus & Kleinschmidt for respondent.

(1) The evidence, as a matter of fact, justifies the findings of the lower court. (2) Even in equity cases this court defers to the findings of the trial court. Erskine v Loewenstein, 82 Mo. 309; Sharpe v. McPike, 62 Mo. 309; Chapman v. McIlwrath, 77 Mo. 43; Chouteau v. Allen, 70 Mo. 43; Berry v Hartzell, 91 Mo. 132. (3) A court of equity should not decree specific performance of an inequitable contract, or one not clearly established. 2 Story's Equity, sec. 742; Paris v. Haley, 61 Mo. 453; Taylor v Williams, 45 Mo. 80; Fish v. Lightner, 44 Mo. 268; Bispham's Equity, sec. 371; Eastman v. Plumer, 46 N.H. 47; McDonald v. Lynch, 59 Mo. 350. (4) The court having possession of the case will give defendant equitable relief. Paris v. Haley, supra.

OPINION

Norton, C. J.

This suit was brought to enforce the specific performance of an alleged contract for the sale of three hundred and twenty acres of land in Jefferson county to the defendant.

The petition substantially alleges that in July, 1883, plaintiff, by verbal contract, sold to defendant said land at and for the price of twenty-two hundred and fifty dollars, four hundred dollars of which was paid and the remainder to be paid on the second of October, 1883; that the defendant went into possession of the premises under the contract and was still in possession, but refused to pay the deferred payment. It also alleges that plaintiff brings into court his deed conveying said premises to defendant, and asks the court for judgment for said deferred payment, and that it be decreed to be a lien on the land.

Defendant in his answer, after setting up the statute of frauds, states in substance that in July, 1883, he entered into negotiations with plaintiff for the purchase of said land; that plaintiff falsely reported to him that all of said land was tillable except ten acres; that a certain spring was on said land; that a certain orchard was wholly on said land; that a certain road was a public road, and that the land was less than six miles from the town of De Soto in Jefferson county; that twenty-two hundred and fifty dollars was agreed upon as the price of the land; that the only agreement made was that defendant would take the land at that price, provided if, after investigation and informing himself as to these representations, he concluded to do so, and that, after thus informing himself, if he concluded not to take it, plaintiff was to repay the four hundred dollars which defendant let him have about the time or soon after the price was agreed on, and the contract was to end; that defendant had simply an option to take the land at that price, if, after entering on it, he found it to be as represented; that this was the twenty-eighth of July, 1883; that defendant, finding the representations to be untrue, notified plaintiff on the second day of August, 1883, that he would not take the land, and has since that time always been willing to surrender the land in his possession, consisting only of about five acres. The answer prays the court to decree that plaintiff repay the four hundred dollars received by him and that it be declared a charge on the land.

The court found for the defendant; rendered judgment in his favor for four hundred dollars, making it a lien on the land.

Veth, the plaintiff, testified in his own behalf to the following effect: That Gierth, the defendant, came to his, Veth's, house, in St. Louis, wanting to buy a farm, wanting to move out in the country, and Veth went with him to Jefferson county to see the land described in the petition; it was in July. Veth showed him all over the premises; that Veth told Gierth that he did not know exactly where the lines were; that he, Veth, would have the land surveyed; that they went from the land to De Soto, and then back to St. Louis; that Veth told him that if he was going to buy he wanted him to give him an answer pretty soon, as, if he did not sell, he wanted to rent the place out. He, Gierth, said he would decide next day; the next day he came to plaintiff's house; there were present two other persons, Mr. Koeninger and Mrs. Koeninger. I asked him twenty-five hundred dollars for the place; he said it was too much. He offered twenty-two hundred and fifty dollars, and said he would have the surveying done himself next winter if Veth would let him have the part of the crop; he wanted Veth to throw in a gun and then Gierth would have the land surveyed and pay the taxes for 1883, and Veth gave him the gun. Gierth paid four hundred dollars and was to pay the balance on the second day of October, 1883. Mr. Piesch had a deed of trust, and he, Veth, paid him the four hundred dollars that was paid on the farm. Veth took the deed to Gierth's house, and Gierth wanted the deed, but Veth refused to deliver without payment. Gierth went into possession under the contract of purchase, and is still in possession. He further testified that the land was as good farming land as any in Jefferson county; that there are perpetual springs on it; that two years before he had been offered by a peddler, whose name he did not know, and who has since died, three thousand dollars for the land.

Mrs. Koeninger, the daughter of plaintiff, testified that she was present at the interview between plaintiff and defendant, and gave substantially the same account of it as that given by her father.

Fink testified that he was a tenant of Veth's for 1883, and moved defendant, at the request of his son, to the place the last of July or first of August of that year, and gave him possession, and that he was still living in the house.

Knopp testified that defendant lived in the house on the forty-acre tract, which is separated from the other two hundred and eighty acres of land; did not know that he occupied anything more than the house; that there are twenty acres of tillable ground on the three hundred and twenty acres.

George and John Piesch testified that about the last of July they held Veth's note for about four hundred dollars, secured by deed of trust on the land in question, and that Veth, in presence of ...