Boeckeler v. McGowan

• Decision Date: 29 June 1882
• Citation: 12 Mo.App. 507
• Parties: ADOLPHUS BOECKELER, Respondent, v. MICHAEL MCGOWAN ET AL., Appellants.
• Court: Missouri Court of Appeals

12 Mo.App. 507

ADOLPHUS BOECKELER, Respondent,

v.MICHAEL MCGOWAN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 29, 1882.

1. A memorandum of sale of real estate which consists of two papers must contain such a reference from one to the other as will serve to connect the two, and such as will conduct a searcher from one to the other with reasonable certainty.

2. Schroeder v. Taaffe (11 Mo. App. 267) explained.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

A. R. TAYLOR, for the appellant.

LOUIS GOTTSCHALK, for the respondent.

THOMPSON, J., delivered the opinion of the court.

After rehearing, we are satisfied that we were wrong in holding that the memorandum of the sale made by Mrs. McGowan in the office of the Lafayette Mutual Building Association was of itself sufficient to take the case out of the statute of frauds, because it does not contain the name of the vendor. But it contains a reference to the trustee's sale which had taken place on the same day. The reference, we think, sufficiently connects the memorandum made by the auctioneer upon the advertisement at the time of the bidding with this memorandum. The two, taken together, are certainly sufficient to furnish all the facts relating to the sale, which a conveyancer would need in order to draw a formal deed. Such a memorandum clearly takes the case out of the statute of frauds. The principle laid down in Schroeder v. Taaffe (11 Mo. App. 267), that the memorandum which takes the case out of the statute, if consisting of more than one paper, must either be physically connected, or else the one must refer to the other, does not, we think, require an express or explicit reference, such as would make the two papers one contract; but it is sufficient if the reference would conduct the searcher to the other memorandum with reasonable certainty. This is clearly shown by the case of Wiley v. Roberts (27 Mo. 388), where there was no reference in the particular memorandum to any other paper, but only to a partition suit, and this was held to connect the papers in that case with the memorandum. It is also shown by the case of Briggs v. Munchon (56 Mo. 467), where the memorandum was not sufficient in itself, because it did not contain a description of the property; but it referred to the property as the lots remaining unsold of the Briggs estate. This was held to connect this memorandum with the recorded plat of the Briggs estate, although no such plat was referred to, and so the memorandum was helped out and held sufficient. The correct principle under this head seems to be that declared in Thayer v. Lun (22 Ohio St. 62), “that several writings may be construed together for the purpose of ascertaining...