Carter v. Mills

• Decision Date: 31 July 1860
• Citation: 30 Mo. 432
• Parties: CARTER, Plaintiff in Error, v. MILLS et al., Defendants in Error.
• Court: Missouri Supreme Court

30 Mo. 432

CARTER, Plaintiff in Error,

v.MILLS et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1860.

1. In order that a third party, not an original party to a suit, may be permitted to come in and set up his claim to the subject matter in controversy or his defence, it is not required that he should be a necessary party.

2. Where a party seeks the specific enforcement of a contract to convey land, and a third person, not a party to such suit as originally instituted, who claims the same land by an alleged superior title under the person against whom such specific enforcement is sought, desires to be made a party, he may well be permitted to come in and defend; if a decree as between the original parties to the suit would affect his rights injuriously--as by casting a shadow on his title--he would have a right to be heard.

3. One M., residing in the year 1856 in the state of California, owned certain lots adjoining the city of St. Joseph, Missouri. He had in St. Joseph an agent authorized to sell said lots for a specific sum. An uncle of M., a surgeon in the United States army, stationed at Fort Columbus, New York harbor, was also made acquainted with his wish to dispose of said lots. An offer by one G. to purchase said lots was transmitted through said uncle to M. in California. M. thereupon executed a deed dated in California, October 6, 1856, conveying said lots to G., and forwarded the same by mail to the uncle at Fort Columbus, where it was received by him about December 1, 1856, and immediately handed over to Gibbs upon his paying the purchase money. In the mean time, the agent of M. at St. Joseph had, on the 20th of October, 1856, in good faith, entered into a written contract to sell said lots to one C. C., on the 29th of Nov'r, 1856, instituted a suit against M. for the specific enforcement of this contract. M., being a nonresident, was notified by publication, but made default. G., on his own motion, was admitted to defend, against the objection of the plaintiff. Held, that G. was, under the circumstances, properly admitted to defend; that having the legal title and a prior equity--the acceptance of the offer of G. being prior to the contract with C.--his title would prevail over the naked agreement to convey to C.

4. An order of publication against absent defendants does not operate as notice to purchasers until it is executed.

Error to Buchanan Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Loan, for plaintiff in error.

I. The court should have overruled the motion filed by Gibbs to be made a party defendant in this suit. No authority has been shown to authorize such a proceeding. If he had the legal title, as he asserts, a judgment against Mills could not affect him. He had no standing in a court of equity. (Gamble v. City of St. Louis, 12 Mo. 617; Taylor v. Ulrici, 19 Mo. 89; Drake v. Jones, 19 Mo. 428; 17 Mo. 562.) If he had not the legal title, then he is not in a position to question the plaintiff's rights. This proceeding is not the way to settle the prior equity between Carter and Gibbs. (20 Mo. 222; 24 Mo. 87.) If the doctrine contended for be correct, then a final conveyance to a third person would always be sufficient to defeat an action for a specific performance of a contract for the sale of land, however fraudulently obtained or insufficient it may be as against the plaintiff. The argument is this. The plaintiff can not question the validity of Gibbs' deed, because the plaintiff has established no right against Mills, and he can establish no right against Mills because Gibbs' deed is a bar. Can this be law? Or is the plaintiff authorized to establish his right against Mills and then be permitted to question Gibbs' title? In such case Gibbs' deed, if he had one, is prima facie good against the world, and, if not set aside by Mills or his representatives, will hold the property. In such a case there can be no trust resulting in favor of the plaintiff, because it does not appear that Gibbs had knowledge of Carter's rights. If Gibbs' deed was fraudulent as against Mills, no trust would result in favor of the plaintiff, because in equity Mills as against Gibbs is entitled to have the deed canceled. The motion to strike out Gibbs' answer should have been sustained.

II. The letter to Dr. Mills should have been excluded. A. J. Mills was an adverse party to the plaintiff. His co-defendant Gibbs could not call him as a witness; nor would his declarations be admissible. The exhibit filed with Sugwell's deposition, purporting to be a copy of the original deed from Mills to Gibbs, was improperly admitted in evidence. The declarations of law asked by plaintiff should have been given. Those given for defendant should have been refused.

Hall, for defendants in error.

I. Gibbs was properly made a party. If Gibbs' title is superior to Carter's, then he is interested in the suit adversely to plaintiff, because Carter, by obtaining a decree, would get a perfect title on record, and, by selling to an innocent purchaser for value, could defeat Gibbs' title. If Gibbs' title is inferior to Carter's, still Gibbs is interested in the suit, because in the case last supposed he and not Mills would be entitled to the purchase. (11 Wheat. 304; 2 Brock. 42; 16 Mo. 249; 3 Cod. R. 172.) Gibbs, having received his deed after the commencement of this suit, was properly made a partner under section 24 of article 11 of the practice act. Gibbs had an interest in the suit. (15 Mo. 640; Adams' Eq. 166; 2 Sug. Vend. 98.) Carter was not injured by making Gibbs a party. The court was thereby enabled to decide the whole controversy. The deed to Gibbs took effect from its date, October 6, 1856. Plaintiff did not contract until October 20, 1856. (4 Kent, 454; 2 Mass. 447; 9 Mass. 295; 15 Wend. 658; 13 Johns. 284; 1 N. H. 358; 4 Day, 66; 5 Ired. Eq. 304.) If it took effect from its delivery only, still it is good against Carter. Gibbs has the legal title; he acquired it without knowledge of Carter's equity; having paid the purchase money, his equity is at least equal to Carter's, and having the legal title his rights are superior to Carter's. The letter to Dr. Mills is sufficient of itself to defeat plaintiff's action. Gibbs' equity is superior, being prior in point of time. Carter, having paid no part of the purchase money, is to be taken as having contracted with notice of Gibbs' prior contract. (Paul v. Fulton, 25 Mo. 163.) The execution of the deed was sufficiently proved. (Clardy v. Richardson, 24 Mo. 296.) The question of lis pendens does not arise in this case. No notice until process is served or publication completed. (4 Bibb, 499; 9 Paige, 513; 15 Ala. 24; 2 Rand. 104; Adams' Eq. 154; 1 Sto. Eq. § 406.)

NAPTON, Judge, delivered the opinion of the court.

Andrew J. Mills was the owner of ten acres of land, laid off into lots, adjoining the city of St. Joseph. He resided in California, but he had an agent named McClelland, in St. Joseph, who was authorized to sell these lots for one thousand dollars. His uncle, Dr. Madison Mills, a surgeon in the United States army, stationed, at the date of this transaction, at Fort Columbus, New York harbor, was also made acquainted with his wish to dispose of these St. Joseph lots, and a correspondence ensued between the uncle and nephew which resulted in a sale of the lots for $700, to M. Gibbs, and a deed from A. J. Mills to Gibbs, dated in California on the 6th of October, 1856. This deed was forwarded by mail to Dr. Mills, at Fort Columbus, where it was received about the 1st of December, 1856, and immediately handed over to Gibbs upon his payment of the purchase money. Gibbs had the original deed forwarded by mail to the recorder of deeds at St. Joseph, to have the same placed on record, but it appears that the letter was never received by the clerk or recorder to whom it was directed.

Meanwhile, McClelland, as agent for Mills, on the 20th day of October, 1856, made a contract in writing, with the plaintiff, Carter. for the sale of these lots at the price of $1,000. This suit is brought against Mills to compel a specific execution of this contract, and to get a decree for the title in Carter upon his paying the one thousand dollars. Mills, being a nonresident, was notified by publication, but made default, and Gibbs moved to be admitted to defend and set up the facts as we have just stated them. This the plaintiff objected to, but the court allowed it, and the title, as between Gibbs and the plaintiff, was examined, and the result of the investigation was the establishment of Gibbs' title and the refusal of the court to decree a specific performance against Mills.

This permission of the court to let in Gibbs as defendant presents the main question in the case. The plaintiff insists that the proceeding is without precedent; that if Gibbs has the legal title, any decree which he may obtain against Mills will not affect it, and therefore Gibbs has no right to interplead; and if Gibbs' title depends upon his superior equity, this is not a proceeding in which it can be considered.

This objection to the proceedings of the court, coming from the quarter it does, certainly presents to us the appearance of a singular anxiety for self-sacrifice in order to preserve order and regularity in judicial proceedings. The plaintiff asks the interposition of the court to procure him a title, for which he offers to pay one thousand dollars, and brings the money into court, and yet he considers it entirely immaterial to his case whether this title shall be a good one or a worthless one. Gibbs proposes to have this question settled, and therefore applies to the court for leave to come in and defend. But the plaintiff objects, and says it matters not whether Gibbs has the title or not;...