Barret v. Browning

• Decision Date: 31 July 1844
• Citation: 8 Mo. 689
• Parties: BARRET v. BROWNING.
• Court: Missouri Supreme Court

8 Mo. 689

BARRET

v.BROWNING.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

CROCKETT and BRIGGS, for Appellant. 1. Barret's 4th, 5th and 6th pleas were good. 2. Barret's 2nd and 3rd pleas were good. 3. The demurrer to the replications thereto were good; but whether these pleas were good or not, 4. Barret's amended plea (7) was certainly good, whether sworn to or not, and should not have been stricken out. The law is that when a vendor is to execute a conveyance, the vendee should demand a deed, and after allowing a reasonable time to prepare a deed, must present himself to receive it. 3 Wendell, 249; 7 ibid. 129; 9 ibid. 68. The case of Rector v. Purdy, 1 Mo. R. 186, turned upon the peculiar phraseology of the covenant sued on: it was a covenant to “make, execute and deliver,” &c. No such language is used in the covenant, of Barret. In Pye v. Rutter, 7 Mo. R. 548, the opinion of the court is substantially consistent with the cases we have referred to: the court says, “““this is not an agreement to convey upon request, or to convey generally, without specifying any time, but is an agreement to convey upon the performance of a particular act.” Barret's covenant specifies no day for performance, but is an agreement to convey generally, and hence other rules are prescribed to the covenantee for his government before he can have a cause of action. This amended plea is accompanied by a profert of a sufficient deed, to satisfy the covenant with proper authentication; and even if technicalities should be urged against it, yet, if it contained a proper defense, it should have been received, and the other party left to make his exceptions to it in the usual way But it was not sworn to under the act of 1842-3. It will be observed, that this suit was commenced, and most of the pleadings perfected, before the passage of said act; and we insist that this act should be construed as retrospective, and not bear upon suits brought before its passage. If the plea filed and stricken out was an amended plea, it certainly stands in the place and position of the pleading it proposes to amend, and in construction of law, is the original pleading itself. It is not an absolutely new plea, but an amendment merely. Again, by our Constitution, no retrospective law can be passed: art. 13, § 17. If this is a retrospective law, it cannot be enforced or sanctioned by the court. This provision of our Constitution is not in any other, according to our recollection, and shows the sense of the Legislature, as to the impropriety of depriving a party of any right or privilege conferred before the passage of the act. When suit was brought against Barret, he had a right to plead such pleas as this record contains, without affidavit, and of that should not be deprived. This law is against the spirit of our Constitution, and the genius of our institutions. A plaintiff is not required to swear to his declaration in covenant, and may harass a defendant with unfounded or stale claims, to his great injury and annoyance; but the defendant shall, nevertheless, swear to any special plea he may file, even to a swindling declaration. Is this the equality of privilege of which so much is boasted, and which is said to be guarantied to all, whether suitors or not--plaintiffs or defendants, and without respect to persons or positions? Is this “justice,” in the most common acceptation of the term? Legislatures are not infallible or omnipotent, and there is need that they should be admonished to that effect, by this court, when necessary. Again: if there is nothing objectionable on this score to the act aforesaid, yet, upon a fair construction of it, it does not touch this case of Barret. The general issue need not be sworn to, with few, and perhaps (under the decision of this case, upon the plea of non est factum), no exceptions. In this action of covenant, there is no general issue upon the authority of all the books; and we insist, that such an action is not within the operation of the act concerning special pleas. 5. The court should have granted a new trial. The evidence is the covenant on the part of the plaintiff. For the defendant, it was proved, that Barret called on Blair, agent and attorney for Browning, and had a conversation concerning a conveyance, and while he did not actually tender a deed, Blair (according to witness' impression) declined taking a deed, and wanted a return of the money. Barret wished some time to prepare a deed, &c., and whether he was entitled to reasonable time, according to the tenor of the New York cases before referred to, or not, this amounted to a refusal of a deed by the agent, Blair, and Barret was without fault. 6. This is involved in the others, with this exception. If profert and tender of a sufficient deed, or a sufficient sum of money, is made in court, and to the other party, no matter in what way, it is the duty of the court to make it effective. Now, whether this amended plen was sworn to or not,--whether it was a plea or not, it nevertheless was a profert and tender of a sufficient deed to satisfy the covenant; and if he had a right to discharge it, as we insist, at that time, by making a deed, the court should have given judgment against Barret merely for costs, and ordered the deed into the possession of the other party.

THOMAS T. GANTT, for Appellee.

TOMPKINS, J.

This is an action of covenant, brought in the Circuit Court of St. Louis county, by John R. Browning against Richard F. Barret. Judgment was there given against Barret, and to reverse it, he appealed to this court.

The declaration states, that the said Barret did, for the consideration of three hundred dollars to him paid by the plaintiff, covenant and agree, to and with the said plaintiff, to convey to the said plaintiff, by a good and sufficient warranty deed, a certain lot of ground described in said writing obligatory, as lot No. 4, in block No. 67, in the town of Warsaw, in the county of Hancock, in the State of Illinois. Yet the defendant, although often requested, to wit: at the county aforesaid, on the first day of February, 1842, and afterwards, to wit: on the 1st day of March, 1842, at the county aforesaid, hath not conveyed to the said plaintiff the said lot of ground in the said covenant mentioned.

To this declaration, the defendant pleaded, 1st. Non est factum, without an affidavit to support his plea. 2nd. He pleaded, that he has been at all times ready and willing, and still is ready and willing, to convey, &c., the said lot of ground in the declaration mentioned, by a good and sufficient warranty deed, and herewith tenders to the plaintiff such a deed for the said lot, averring, that the plaintiff did not, at any time before the institution of this suit, request him to make such conveyance, &c. 3rd. That before the institution of this suit, to wit: on the 1st day of March, 1842, he was ready and willing, and offered to convey to the said plaintiff the said lot of ground in the declaration mentioned, by a good and sufficient deed, &c., but that the agent and attorney of the said plaintiff refused to accept, &c. 4th. That the plaintiff did not, at any time before the institution of this suit, request the defendant to convoy, &c. 5th. That when the plaintiff first requested the defendant to convey the said lot of ground, as in the declaration is alleged, the defendant did not refuse to make the said conveyance, &c. on the contrary, the defendant was ready and willing to convey the said lot of ground, &c. but the defendant did not and would not allow the plaintiff a reasonable time to have the said conveyance prepared, and did not afterwards, before the institution of this suit, again request the defendant to make the said conveyance. 6th. That when the plaintiff first requested the defendant to convey the said lot of ground, he did not refuse to make the said conveyance; on the contrary, the defendant was ready and willing to convey, &c. but the plaintiff, after the lapse of a reasonable time for the preparation of the said conveyance, and before the institution of this suit, did not again request the defendant to make the conveyance, &c.

The plaintiff took issue on the defendant's first plea, and replied to the second plea, denying the defendant's readiness and willingness, as in that plea alleged.

The plaintiff replied also to the third plea of the defendant, denying that the defendant did tender to the agent of the plaintiff a deed for the said lot, as in that plea is alleged. To the fourth, fifth and sixth pleas of the defendant, he demurred, and the defendant demurred to the plaintiff's replications to the second and third pleas of the defendant. The Circuit Court, deciding the second and third pleas to be bad, overruled the defendant's demurrer to the plaintiff's replications to those pleas. That court also sustained the plaintiff's demurrer to the defendant's fourth, fifth and sixth...