Jones v. Shaver
| Decision Date | 30 September 1840 |
| Citation | 6 Mo. 642 |
| Parties | JONES v. SHAVER. |
| Court | Missouri Supreme Court |
FRISSELL, for Appellant. 1st. That the equitable title of Jones in the lots sold to Shaver, constituted a valuable consideration for the bond sued upon. Greenleaf v. Cook, 4 Cond. R. 7; 2 Peters, 182, Story, J.; Violet v. Potter, 2 Cond. R. 214; Chitty on Contracts, 5-8. 2nd. Where land has been bona fide sold but not conveyed until after a judgment has been rendered against the seller, in the county where the land lies, the lien of the judgment does not extend to the land so sold, and the purchaser takes the title unaffected by the lien. Sedgewick v. Hollenback, 7 Johns. 376; Mo. Stat., 339, § 2. 3rd. That the delay of Shaver for three years to procure the conveyance, when during all that time he could have had it upon request, would render him liable to pay the price even if it had happened that he had lost the lots, the loss happening through his own negligence. 4th. That hypothetical and speculative instructions, if excepted to, are error. Chiral and others v. Reinerken, 2 Pet. 625. 5th. That it was the duty of Shaver, the purchaser, to proffer the deed and present it to Masters to execute. Sugden on Vendors, 163-5.
BRICKEY, for Defendant in Error. 1. That if the consideration for which the bond was given has wholly failed the plaintiff cannot recover, consequently the Circuit Court committed no error. 2. The evidence preserved in the record shows that Jones had no right to the land sold to Shaver, and that the bond here sued upon was given in consideration of that land, therefore void, and cannot be enforced against the defendants.
The appellant sued Shaver in the Circuit Court of Washington county, on a note of $325 00, by petition in debt. Defendant pleaded that the consideration of the note was a house and certain lots in the town of Caledonia, to which Jones, at the time of the execution of the note, had no title, and yet had none. Replication was filed, and issue taken. Defendant filed his bill for discovery, calling on Jones to state the consideration of said note, and whether he ever had, or yet had, any title. Jones' answer admits the note to have been executed for the consideration charged, but states that he purchased the lots from one Masters, and had paid Masters for the same; that Masters had not made him any title, but that the fact was well known to Shaver, and that he sold Shaver his (Jones) equitable...
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