Williams v. Crow

• Decision Date: 31 October 1884
• Citation: 84 Mo. 298
• Parties: WILLIAMS, Assignee, v. CROW et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 298

WILLIAMS, Assignee,

v.CROW et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Clark Circuit Court.--HON. B. E. TURNER, Judge.

AFFIRMED.

Givens & Meryhew and Wm. Berkheimer for appellant, ANN W. CROW.

(1) The contract on which defendants rely is, as to Ann W. Crow, who was at the time a married woman, simply a contract of indemnity against damages sustained by a suit which might in future be brought against her grantor, and while it might bind her in Iowa under the code of that state, yet as plaintiff sought to enforce it in this state, the law of the forum will govern. 2 Parsons on Contracts, pp. 83-84. Nash v. Tupper, 1 Caines 402; 1 Daniel on Neg. Ins., sec. 882. (2) A contract cannot be enforced against a married woman. Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 Mo. 152; 2 Sugden on Vendors (14th Ed.) p. 382. (3) A vendor's lien will not be enforced to compel the performance of a contract of indemnity against contingencies which are uncertain or may never happen. 2 Sugden on Vendors 380; Payne v. Avery, 21 Mich. 524; 13 Gratt. 615; McKillop v. McKillop, 8 Barb. 552; 4 Kent Com. 153. (4) Mrs. Crow had no notice of the suit in the circuit court of Lee county, Iowa, between William Bailey, Jr., and William Bailey, Sr., and was not bound by the judgment. Nercross v. Hudson, 32 Mo. 227; Fallon v. Sullivan, 16 Mo. 168; City of St. Louis v. Bissell, 46 Mo. 157; 2 Greenl. on Evidence, page 286, sec. 244. And the admission of the record of said case for that reason was erroneous. (5) The court erred in admitting in evidence section 2594, Code of Iowa of 1873, for the reason that there was no allegation in the petition authorizing its introduction. The statutes of a sister state are facts and must be proved like any other fact. Milly v. Smith, 2 Mo. 36: Babcock v. Babcock, 46 Mo. 243; Morris v. Wiggins Ferry Co., 47 Mo. 521; 25 Mo. 465. (6) The petition must contain all the facts necessary to constitute a cause of action. Revised Statutes, section 3511, cases cited. Scott v. Robards, 67 Mo. 289; Pen v. Heinrichoffer, 52 Mo. 333. And the code has only obviated the necessity of using technical and formal averments. Conway v. Reed, 66 Mo. 346; Green and Myers' Pleading, page 188, sec. 489, cases cited. (7) The court erred in not sustaining defendant's motion in arrest of judgment, for the reason, that the petition did not contain facts sufficient to constitute a cause of action against defendant; and cites the authorities aforesaid. (8) There was no proof that defendant had a separate estate to be charged, but shows that hers was a fee, which is not such an estate as a married woman can charge. Bauer v. Bauer, 40 Mo. 61.

Isaac R. Williams for respondent.

(1) The evidence shows that Bailey made the sale of the land to George R. Crow, and at the latter's request the deed was made to Ann W. Crow. Such being the case, the objection to the action because Mrs. Crow is a married woman is not well taken. Davenport v. Murray, 68 Mo. 198; Hunt v. Marsh, 80 Mo. 396. (2) The lease was not different from a mortgage or other incumbrance on the land, so far as its certainty was concerned; the land was encumbered by a lease of ten years. (3) It is too late to make the objection for the first time in this court that the trial court erred in admitting in evidence section 2213, of the Iowa code. (4) The evidence shows that the contract sued on was a part of the consideration of the land, and parol evidence was, therefore, admissible to explain it.

NORTON, J.

This suit was instituted in the circuit court of Clark county to enforce a vendor's lien against certain land in said county, described in the petition. Plaintiff had judgment as prayed for in the petition from which the defendants have appealed.

The case made on the trial is as follows: William Bailey, Sr., who resided in the state of Iowa, was the owner of the land described in the petition; on the twenty-seventh day of November, 1876, he leased the same to his son, William Bailey, Jr., for the period of ten years from the first day of March, 1877. It also appears that defendant, G. R. Crow, who was also a resident of the state of Iowa, with full knowledge of the existence of said lease, entered into negotiations with said Bailey, Sr., for the purchase of said land, which culminated on the fourteenth of February, 1877, in said Bailey executing a deed of general warranty, conveying, at the request of the said G. R. Crow, the said land to defendant, Ann W. Crow, the wife of defendant G. R., the consideration named in the deed being $1,000, which was paid.

At the time of the execution of this deed, and as part thereof, the following written agreement was made:

“STRING PRAIRIE, LEE COUNTY, IA.,

)

November 27, 1876.

)

That on the 14th day of February, 1877, William Bailey, senior, conveyed said land to appellant, Ann W. Crow, by a deed of general warranty, and that, as a part of said deed, appellants entered into the following agreement: ‘Know all men by these presents, that, whereas, William Bailey and wife have this day executed to the undersigned Ann W. Crow their warranty to one hundred and nineteen acres of land in Clark county, Missouri; now it is expressly understood, as a part of said deed of conveyance, that a full warranty is given in said deed at the request of grantee; whereas, said grantors, it is expressly agreed, shall not be responsible upon their said warranty for any claim, right, title, or interest of one William Bailey, junior, of, in, and to said real estate, by virtue of a certain contract or pretended contract, dated twenty-seventh day of November, 1876, and entered into by and between William Bailey, junior, and William Bailey, grantor in said deed. It is further agreed, as a part of said conveyance, that the undersigned George R. Crow and Ann W. Crow will hold and keep said William Bailey, senior, grantor in said deed, harmless on account of the execution of said deed, and on account of any claim for damages or otherwise of said William Bailey, junior, against said William Bailey, senior, on account of a breach of said contract. It is further understood that said George R. Crow and his wife will employ counsel and defend any suit, and pay all costs and expenses thereof, by said William Bailey, junior, against said William Bailey,...