Callahan v. Shotwell

• Decision Date: 31 May 1875
• Citation: 60 Mo. 398
• Parties: ELIZABETH A. CALLAHAN, et al., Respondents, v. JOHN W. SHOTWELL, Adm'r, etc. of AUSTIN A. KING, deceased, Appellant.
• Court: Missouri Supreme Court

60 Mo. 398

ELIZABETH A. CALLAHAN, et al., Respondents,

v.JOHN W. SHOTWELL, Adm'r, etc. of AUSTIN A. KING, deceased, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Ray Circuit Court.

E. F. Esteb & J. W. Shotwell, for Appellant.

I. The court erred in referring this cause without the written consent of the parties. (Wagn. Stat., 1041, § 18; Caulk vs. Blyth, 55 Mo., 293.)

II. If plaintiffs had any right of action in the premises, it was to set aside the quit-claim conveyance to Gov. King upon the payment of reasonable compensation for services actually rendered.

C. T. Garner, with Doniphan & Reed, for Respondents.

I. Defendant's objection to the reference, to avail, must have been made at the time of the order of reference.

II. It is unequitable and against the law for the estate to hold the land and not refund the amount of the unearned services, for which the land was conveyed; and equity will compel a re-payment of such amount. (58 Barb., 233; 59 Barb., 574; 2 Mo., 198; 4 Mo., 304.)NAPTON, Judge, delivered the opinion of the court.

The suit, during its progress, seems to have assumed a variety of phases; but it grew out of, and is based on, the following contract made by Gov. King in 1869:

“Whereas Elizabeth H. Callahan, formerly Elizabeth Nutter, and James M. Callahan, her husband, have this day conveyed by quit-claim deed to me, as tenant in common with Tilton Davis, the following tract of land in Lafayette county (here follows a description of the land, 200 acres); now, therefore, this agreement witnesseth, that in consideration of said land and conveyance, as aforesaid, I do hereby agree with said Elizabeth Callahan, her heirs, etc., to give my personal services, without any additional charge therefor, to the following cases pending and commenced in the different courts of Lafayette County, Mo., to-wit: Lewis Megede vs. said Elizabeth A. Callahan; E. H. Nutter vs. Thomas & Samson; Sallie M. Nutter vs. E. H. Nutter and others; State of Mo. vs. William H. Warner; S. G. Wentworth, Adm'r vs. M. Chapman and others; Sallie M. Nutter vs. J. & E. M. Callahan; and also to all and any cases that may hereafter arise, affecting or designed to affect the title of said E. A. Callahan, formerly Nutter, in and to the land conveyed to her by her brother Samuel M. Nutter, by deed dated sometime in July or August, 1868; and also agree and bind myself to convey said lands herein described to said Eliz. A. Callahan, her heirs or assigns, by quit-claim deed thereto, so soon as said suit of Sallie M. Nutter vs. E. M. Nutter and others, involving the validity of said transfer by said Samuel M. Nutter to said E. H. Nutter, now Callahan, is finally decided in court, or the further prosecution thereof, as commenced, is abandoned by said Sallie M. Nutter, provided, however, this obligation to re-convey said land as aforesaid, is based and conditioned upon the fact of the payment to me, my heirs or legal representatives, of the sum of $2,000, with interest thereon at eight per cent. from August 1, 1869, within six months after such final decision or abandonment of said suit as aforesaid; so that should said E. H. Callahan, her heirs or assigns pay to me, my heirs or legal representatives, the said sum of $2,000, with interest thereon, as aforesaid, within six months next after said case commenced by said Sallie M. Nutter against E. H. Nutter, now Callahan, and others, shall have been finally decided in court or by her, said Sallie M. Nutter, abandoned, and no further prosecution is commenced or instituted, then this agreement to be void and of no effect or force in law.

Witness my hand and seal, this 8th day of Sept. 1869.

AUSTIN A. KING.”

The petition was amended three or four times, and the answers...