Simmons v. Headlee

Decision Date20 February 1888
PartiesSimmons et al. v. Headlee et al., Appellants
CourtMissouri Supreme Court

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Reversed and remanded.

F. S Heffernan and C. W. Thrasher for appellants.

(1) The evidence in this case shows such performance of the parol contract on the part of defendant, O'Callahan, as will take the case out of the operation of the statute of frauds and constitute a complete equitable defence to the action. Bean v. Valle, 2 Mo. 102, 135; Farrar v Patton, 20 Mo. 81, 84; Charpiott v. Sigerson, 25 Mo. 63; Dickerson v. Chrisman, 28 Mo. 134, 140; Gupton v. Gupton, 47 Mo. 37, 46; Tatum v. Brooker, 51 Mo. 148; Price v. Hart, 29 Mo. 171; Despain v. Carter, 21 Mo. 331, 336; Adair v. Adair, 78 Mo. 630, 633; Wetmore v. White, 2 Cain's Cas. 109; Burke v. Saley, 46 Mo. 334; Throckmorton v. Davidson, 68 Iowa 643. If the vendee is in possession of the premises at the time of the sale, and continues so thereafter with the consent of the vendor, that is part performance of the contract. Fisher v. Moolick, 13 Wis. 321; Snider v. Thrall, 56 Wis. 674; Winchell v. Winchell, 1 Central Rep. 235; Brown v. Jones, 46 Barb. 400; Pain v. Coombs, 1 DeG. & J. 34, 46; Gregory v. Mighell, 18 Ves. 328. Where a parol agreement for the sale of land is silent as to the possession, the land vacant, the entire consideration paid, and the agreement fully performed on the part of the vendee, leaving nothing for the vendor to do but to give a deed, there is an implied agreement that the vendee may at once take and hold possession. Miller v. Ball, 64 N. Y. T. 286; Waterman on Specific Performance, sec. 270. The entire performance of this parol contract on the part of the appellants takes it out of the operation of the statute of frauds. Hoyle v. Bush, 14 Mo.App. 408; Self v. Cordell, 45 Mo. 345; Tatum v. Brooker, 51 Mo. 148; Blanton v. Knox, 3 Mo. 342; Pitcher v. Wilson, 5 Mo. 48; Suggett's Adm'r v. Cason's Adm'r, 26 Mo. 221. (2) The court below erred in giving the declaration of law asked by plaintiffs. (3) The court below erred in refusing the declarations of law asked by defendants. (4) The respondent, Ferdinand Emmel, claiming title to twenty acres of this land under a quit-claim deed from said P. T. Simmons, stands no better than the heirs of said Simmons, and is affected by all the equities between said P. T. Simmons and said O'Callahan. Ridgeway v. Holliday, 59 Mo. 444; Stivers v. Horne, 62 Mo. 473; Mann v. Best, 62 Mo. 491; Austin v. Loring, 63 Mo. 19.

Goode & Cravens for respondents.

(1) The deed of trust made by the defendant, O'Callahan, to T. K. O'Day, for James Hayes, and the foreclosure sale thereunder to E. C. O'Day, afford no defence to these actions. Defendants were in possession when the actions were brought; there had been no sale under the deed of trust at that time, so plaintiffs' cause of action was then complete and they are entitled to recover whatever interest the defendants had. Laughlin v. Stone, 5 Mo. 43; Jackson v. Bush, 10 Johns. 223; Kennett v. Plummer, 28 Mo. 142; Woods v. Hildebrand, 46 Mo. 284. The defendant, O'Callahan, was in possession at the time P. T. Simmons purchased the land at execution sale, and, hence, cannot defeat the right of plaintiffs to recover by setting up an outstanding title. Page v. Hill, 11 Mo. 149; Mathews v. Lecompte, 24 Mo. 545; Boyd v. Jones, 49 Mo. 202. This case is precisely like the case at bar as to the point under consideration. Matney v. Graham, 59 Mo. 190; Gitchell v. Kreidler, 13 Mo.App. 497; Bobb v. Graham, 15 Mo.App. 289. (2) If the deposition of Mr. O'Day is taken as true, it establishes a verbal agreement on the part of Simmons to convey the land in controversy to the defendant, O'Callahan, of which there was no such part performance as will take it out of the statute of frauds. O'Callahan was in possession for years before the verbal contract with Simmons is alleged to have been made, and possession, to amount to part performance, must be taken under and pursuant to the contract. Bean v. Valle, 2 Mo. 102, 135; Parke v. Leewright, 20 Mo. 85; Ellis v. Railroad, 51 Mo. 200; Culligan v. Wingerter, 57 Mo. 250; Townsend v. Hawkins, 45 Mo. 286; Spalding v. Conzelman, 30 Mo. 177; Wiley v. Roberts, 31 Mo. 212; Miltenberger v. Morrison, 39 Mo. 72; Sitton v. Shipp, 65 Mo. 297; Bowles v. Walthan, 54 Mo. 261; Lydick v. Holland, 83 Mo. 703; Morris v. Williams, 95 U.S. 444; Johnson v. Glancy, 4 Blackf. 94; Christy v. Barnhart, 53 Am. Dec. 538; Gangwer v. Fry, 55 Am. Dec. 578. Payment of purchase money is not part performance. Chambers v. Lecompte, 9 Mo. 575; Galway v. Shields, 1 Mo.App. 546; S. C., 66 Mo. 313; Bean v. Valle, supra; Lydick v. Holland, 83 Mo. 703. (3) The policy of our courts is to keep the exceptions to the statute strictly confined within the barriers originally assigned to them. Chapman v. Templeton, 53 Mo. 463; Kennedy v. Kennedy, 57 Mo. 73; Charpiot v. Sigerson, 25 Mo. 63; Webster v. Gray, 37 Mich. 37.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This is an action of ejectment to recover possession of certain lands in Greene county. 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 question, 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 which issued on the judgment in Sell's favor against O'Callahan, the land in question was sold on the third of December, 1881, and said P. T. Simmons became the purchaser for twenty-five dollars. The witness further stated that, after these sales had been made, the firm of John O'Day & Brother, representing O'Callahan, and said Simmons, of the law firm of Simmons & Hubbard, met for the purpose of settling matters between O'Callahan and Sell growing out of these and other judgments; that in the negotiations he advanced for O'Callahan five hundred dollars to pay a judgment against him in favor of Phebe O'Callahan, also some money to pay to F. Emmel; that in the settlement it was agreed that T. K. O'Day should not take a deed for the land of Sells which he had bought at said execution sale, and that said P. T. Simmons should convey or release to O'Callahan whatever title he might have acquired to his land under the sheriff's deed, on the payment of the amount of Sell's judgment against him, which amount was paid to said Simmons, and said T. K. O'Day did not take a sheriff's deed to the land of said Sell which he had bought at the execution sale. He further testified that the settlement was a final one, each man to retain his own lands, as if there had been no sale, that is, Sell and O'Callahan.

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, and rendered judgment accordingly, and it is from this judgment that defendants appeal, and the sole question presented is, whether the parol agreement testified to, is or is not taken from under the operation of the statute of frauds by the full performance of it on O'Callahan's part, in paying the price agreed upon for a release or reconveyance, and by his remaining in...

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