Callaghan v. M'Mahan

• Decision Date: 31 October 1862
• Citation: 33 Mo. 111
• Parties: JOHN CALLAGHAN, Respondent, v. BERNARD M'MAHAN, Appellant.
• Court: Missouri Supreme Court

33 Mo. 111

JOHN CALLAGHAN, Respondent,

v.BERNARD M'MAHAN, Appellant.

Supreme Court of Missouri.

October Term, 1862.

Appeal from Jefferson Circuit Court.

J. L. Thomas, for appellant.

A. Green, for respondent.

I. The decree of the court is warranted by the facts proved. By the agreement, defendant was to enter eighty acres of land in Jefferson county for the plaintiff. The proof shows plaintiff furnished the money, and that defendant did enter the land, and for the plaintiff. It is no objection that defendant entered under the graduation act. If this be a fraud on the Government, defendant cannot take advantage of his own wrong. The plaintiff having furnished the money to enter the land with, under the agreement, a resulting trust arises in his favor by operation of law. (28 Mo. 578; Vallé v. Bryan, 19 Mo. 423; Paul v. Chouteau, 14 Mo. 580.)

II. The decision of the court overruling the demurrer was correct. The petition is not multifarious. The causes of action stated in the petition both arise out of the same transaction. (R. C., p. 1228, § 2; Martin v. Martin, 13 Mo. 36; 12 Mo., p. 3.)

III. It was not error in the court to permit plaintiff to amend his petition in the description of the land at the trial. It is not shown that such amendment took defendant by surprise. (R. C., p. 1253, § 2 & 3.)

BAY, Judge, delivered the opinion of the court.

Plaintiff filed his petition in the Circuit Court of Jefferson county, alleging that in February, 1854, he gave to the defendant the sum of one hundred dollars for the purpose of entering a tract of land in the county of Jefferson, in this State, to contain eighty acres, expecting that said land would be entered at the price of $1.25 per acre; that said land was to be entered in the name of the plaintiff; that in pursuance of said arrangement said defendant did enter with the money of said plaintiff a tract of eighty acres, particularly described in the petition, but that the entry was made in the name of the defendant contrary to said agreement and understanding and in fraud of plaintiff's rights, and that said entry was made under the graduation act, and at the price of ten dollars, leaving a balance of ninety dollars due plaintiff.

Plaintiff prays judgment for said sum of ninety dollars, with interest, and also a decree divesting defendant of the title in said land and vesting the same in plaintiff.

To this petition defendant filed a demurrer upon the ground that it was multifarious in this, that it contained a count in equity for land, and one at law for money had and received, which demurrer was overruled; whereupon the defendant answered, denying that he entered the land with the plaintiff's money, and denying all the allegations tending to establish a resulting trust. The answer also repeats the objections to the petition contained in the demurrer.

The court gave judgment for the plaintiff for the sum of $122.40, being the unexpended balance with interest, and also a decree divesting defendant of title, etc., and vesting same in plaintiff.

Motions for new trial and in arrest were filed and overruled, and the cause is brought here by appeal.

It appears from the bill of exceptions that after the evidence was closed and the cause submitted, but before the entry of the judgment, the court suggested to the plaintiff that he claimed in his petition the wrong land, whereupon the court permitted the plaintiff to amend his petition by substituting the words “south-west quarter of north-east quarter, and...