Bryan v. Jamison

• Citation: 7 Mo. 106
• Parties: BRYAN v. JAMISON.
• Decision Date: 31 August 1841
• Court: Missouri Supreme Court

7 Mo. 106

BRYAN

v.JAMISON.

Supreme Court of Missouri.

August Term, 1841.

APPEAL FROM THE BOONE CIRCUIT COURT.

KIRTLEY, for Appellant. That Jamison brought the lot into market by showing it to the sheriff as Donohoe's. He induced the sale, and consequently the purchase by the complainant, and cannot now defeat his title. See Fonblanque's Eq.; 3 Littell, 55; Bobb's Heirs v. Morrison, 1 Johns. R. 351; Harrison & Gray v. Edwards, 4 Monroe, 196; 2 Starkie's R. 841; 1 Johns. C. C., 354; J. J. Marshall, 36; 3 Monroe, 515; 1 J. J. Marshall, 216; 5 Monroe, 437. The case is not within the statute of contracts and promises. 3 Littell, 55; Bobb's Heirs v. Morrison, 1 Johns. Ch. R. 352. To prove the position, averments of Jamison inducing the purchase and sale of the lot, not directly denied by the answer, one witness is sufficient. 3 Monroe, 225; 6 Monroe, 22; 4 Monroe, 176; 1 Bibb, 290; 4 Bibb, 357, Lawrence v. Lawrence.

HAYDEN, for Appellee. 1st. That by the purchase of the lot under the sheriff's sale, the complainant derived no better title to the lot than Donohoe had to it, and that as Donohoe could not have compelled a conveyance of the lot from Jamison without having paid the consideration money to Jamison, which he, Donohoe, had agreed to pay him for it, that, therefore, complainant could not enforce the conveyance without having paid it, or offered to do so prior to the filing of the bill. 2nd. The complainant cannot demand a decree for the conveyance of the lot upon the testimony of Maupin, for two reasons: 1. Because at best it showed nothing but a parol license or authority from Jamison to Maupin to sell the lot under the execution, and, therefore, not binding upon him by reason of the statute of frauds and perjuries, which is relied upon by him. 2. Because the authority so to sell it Jamison claims in his answer, and the answer stands opposed alone by the testimony of Maupin. And, as a third reason, Maupin does not pretend in his deposition that he sold the lot as the lot of Jamison, under the license, but that he sold it as the lot of Donohoe, under and by virtue of the execution. 3rd. That in this case the court cannot and will not reverse the judgment of the Circuit Court, because the complainant acquiesced in the decree of the Circuit Court, and did not move for a rehearing, or a new trial of the cause, and therefore this court ought to affirm the judgment or dismiss the appeal. See Woodson and others, v. Administrator of McClelland, 4 Mo. R. 495, 504.

TOMPKINS, J.

Bryan, in his bill, states that in February, 1833, an execution issued from the Circuit Court of Boone county, in favor of Garton B. Maupin, against William Donohoe, which was levied on lot No. 279, in the town of Columbia, as the property of the said Donohoe, and the same was sold by virtue of said execution, on the 26th day of June, 1833, and that he became purchaser, and that Jamison, the defendant in this suit, sets up a claim to the said lot; and that before the sale of the lot on execution, Jamison had sold the lot to Donohoe, and received payment, and executed his bond to said Donohoe for a title; that Jamison was equally with said Donohoe bound to said Maupin for the debt for which the aforesaid execution issued, though the judgment had not been obtained against him, and that Jamison knowing himself to be ultimately bound for the amount of the debt, and being informed that property belonging to Donohoe could not he found, desired the sheriff to levy the execution on said lot as the property of Donohoe, and that he would see that the title should be made good to the purchaser; and that the levy was made in pursuance of his advice, and the complainant became purchaser as above stated, confiding in this promise of Jamison through the sheriff, who said Jamison had authorized him to make such statement. That before Donohoe had become indebted to Maupin, Jamison had sold this lot to Donohoe; and that the said Donohoe became indebted to Maupin in the manner following, to-wit: That after Donohoe became indebted to Jamison for the lot, Jamison, on some account, became indebted to Maupin, who, pressing Jamison for money, Jamison demanded of Donohoe pay for the lot; that Donohoe thereupon applied to Maupin to borrow one hundred dollars for Jamison; that Maupin informed Donohoe the money Jamison wanted was for him, and that he could make the arrangement with Jamison, and let Donohoe have the benefit of that arrangement; that Maupin, Donohoe and Jamison came together: that Maupin cancelled one hundred dollars...