Adair v. Adair

• Citation: 78 Mo. 630
• Parties: ADAIR v. ADAIR, Plaintiff in Error.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

78 Mo. 630

ADAIR

v.ADAIR, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to Morgan Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

A. W. Anthony for plaintiff in error.

Draffen & Williams and B. R. Richardson for defendant in error.

MARTIN, C.

This was a suit in equity, commenced on the 20th day of March, 1879, which had for its object the enforcement of a vendor's contract security for the purchase money of land sold by him but not deeded. The plaintiff, as executor of his father's will, had been authorized by decree of court to make sale of the real estate devised by the testator, collect the proceeds thereof and make distribution among the heirs or devisees, who were quite numerous. It is alleged in the petition that, in pursuance of the decree, he made sale of certain tracts of the land to the defendant, who was his brother, being one of the heirs of the testator, on the 13th day of April, 1864; that the consideration price was $1,730, and that it was agreed at the time of the sale that the defendant, instead of paying down all in cash, might settle with the heirs or devisees for their respective portions of the purchase money, and produce to plaintiff their receipts therefor, which should be accepted by plaintiff in lieu of cash and credited on the purchase price; that in pursuance of this agreement the defendant paid a number of said shares; but that the precise amount so paid was unknown to plaintiff; that the defendant refused to settle and turn over the receipts so taken; that the amount of purchase money remaining unpaid is $600, for which judgment is asked against the land, and that defendant's equity therein be foreclosed, and for all proper relief.

The amended answer admits the agreement and contract of purchase as stated, and denies all other matter. It also contains a plea of the statute of frauds together with a plea of the statute of limitations. The answer sets up special matters of defense consisting of an alleged agreement on the part of plaintiff to pay all taxes due on the real estate along with such as should accrue before delivery of deed; that defendant had paid all the purchase money and demanded a deed, which the plaintiff refused to deliver; that plaintiff failed to pay the taxes as agreed, and that defendant had been compelled to pay $300 to settle outstanding claims for taxes, which claims were paid at the request of plaintiff. The answer contains a prayer for a judgment for the amount expended for taxes and for such other orders and judgments as may seem right and proper in the premises. To this new matter the plaintiff made reply putting the same in issue.

There was no controversy at the trial about the main features of the contract of sale as alleged by plaintiff. It appears that defendant was to pay the $1,730 for the land; that he was to have the privilege of settling with the heirs for their respective portions, and to turn their receipts over to the plaintiff in lieu of cash, so that he might use them in his settlements in the probate court; that the deed was to be retained until full payment should be made of the purchase money or settlement by production of receipts; that the defendant entered into possession of the land, paid most of the purchase money in pursuance of the agreement; and has used and enjoyed the land as his own, receiving its profits and products up to the present time; that defendant had paid the taxes claimed to have been paid by him, receiving therefor a quit-claim deed from the holder of the tax claim.

It appears that the last payment on account of the purchase money was made on the 10th day of March, 1869, being ten years and ten days before the institution of this suit. It also appears that a short time before the institution of the suit, the plaintiff endeavored to settle with the defendant, and that in the interview or accounting which took place they disagreed about the amount which the defendant claimed to have paid and about the item of taxes. The defendant claimed to have made some payments which plaintiff would not admit, but he did not repudiate or deny the contract under which he purchased or the relation which it established between him and the plaintiff in respect to the land. It also appears that the plaintiff executed a deed for defendant and was ready to deliver it as soon as settlement for the purchase money should be had. A deed to that effect was tendered in court. There was a conflict of evidence as to the plaintiff's promise to pay taxes; a conflict also as to two or three payments claimed to have been made to the heirs. Upon the evidence the court found in favor of the plaintiff and entered a decree in the sum of $698.48 against the land as a lien in favor of plaintiff, and ordered that it be enforced by sale of the land. No personal judgment against the defendant was given. The case comes here by writ of error to this action of the court.

1. STATUTE OF FRAUDS: part performance.

The first objection to the decree is, that the contract enforced was within the statute of frauds. Under the decisions of this court the objection cannot be sustained. The contract for the sale of the land was executory. The defendant took possession under it, paid most of the purchase money and received to his own use the profits and products of the land. These facts constitute sufficient part performance to take the transaction out of the statute. Tatum v. Brooker 51 Mo. 148; Price v. Hart, 29 Mo. 171; Charpiot v. Sigerson, 25 Mo. 63.

2. VENDOR'S LIEN: statute of limitations.

The objection founded on the statute of limitations presents more difficulty. No promissory note or written obligation represents the debt, therefore, an action at law to collect it as a personal demand is barred in five years. If the plaintiff had nothing more by way of security than a vendor's lien, a question might occur whether it had any existence after the period of limitation which bars an action on the debt. It has been held in New York, and in some other states, that a vendor's lien which is not evidenced by any deed or supported by any title, is a mere creature of equity, incident to the debt, and that it has no existence after the right of action on the debt is barred. Borst v. Corey, 15 N. Y. 505; Trotter...