Burke v. Seely

• Decision Date: 31 July 1870
• Parties: EDMUND BURKE, Plaintiff in Error, v. JOHN S. SEELY et al., Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 334

EDMUND BURKE, Plaintiff in Error,

v.JOHN S. SEELY et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

Ewing & Smith, for plaintiff in error.

Draffen & Muir, for defendants in error.

BLISS, Judge, delivered the opinion of the court.

In 1859, one Evans took possession of two town lots in Tipton, the property of W. T. Seely, now deceased, and built a house upon the same, the said Seely furnishing the greater part of the lumber. Evans testifies that he went into possession with the knowledge of Seely; that there was no writing between them; that he expected to pay what the lots were worth, but no price was agreed upon, while the answer of Seely's heirs admits that the price was $100; but it is undisputed that the contract was verbal, if one was made; that Evans paid nothing upon it, and that Seely advanced for the improvements lumber of the value of $417, for which he received no pay. It also appears that Evans became involved; that sundry judgments were rendered against him in 1862; that executions were issued and levied upon Evans' interest in the property; and in October, 1863, said interest was bid in by Seely for the sum of $250. The said Evans at once gave up to Seely his interest in and the possession of the property, in payment, as he says, of what he owed him, and the latter and his heirs have ever since been in undisputed possession of the same as owners thereof. It also appears that in December, 1866, new executions were issued upon all the judgments against Evans, and in March, 1867, his interest in said property was again sold and bid in by the plaintiff for $44.

The plaintiff in the present suit presents his petition to the Moniteau Circuit Court for a specific performance of the contract between Evans and Seely, claiming that the contract is in full force and that he is the owner of Evans' equity by virtue of his said purchase. He does not tender the purchase money or bring any money into court, but says he is willing to pay the original $100 and interest. There is no charge of fraud in any of the transactions pertaining to the lots, and the plaintiff relies solely upon his equity as the purchaser of Evans' naked interest. The Circuit Court held that the first execution sales, under which Seely, in 1868, bid in Evans' interest, were irregular and passed no title, and gave the plaintiff a decree for specific performance. which was reversed in the District Court.

The judgment of...