Chambers v. Lecompte

• Citation: 9 Mo. 575
• Parties: CHAMBERS ET AL. v. LECOMPTE.
• Decision Date: 31 October 1845
• Court: United States State Supreme Court of Missouri

9 Mo. 575

CHAMBERS ET AL.

v.LECOMPTE.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS CIRCUIT COURT.

GOODE & CORNICK, for Plaintiffs. 1. The case described in the bill comes within one of the classes of cases in which chancery will decree a specific performance, notwithstanding the statutes. See Fonbl. Eq. 150, top page; Sugden on Vendors, bottom page, 114, 115; 2 Story's Eq. Com. 66. 2. Even if the contract described in the bill had not been specific in its terms, it could not be dismissed. See 2 Story's Eq. Com. 70, note 3, and the authorities there cited; Parkhurst v. Van Cortland, 1 Johns. Ch. R. 283. 3. If M. P. Leduc had been living when the bill was filed, there was no necessity for making him a party, as under the statute he had no interest. See Digest of 1835, p. 119, § 1.

NAPTON, J.

This was a bill in chancery to compel the specific performance of a verbal contract. The bill charges that in the year 1823, Hyacinth Lecompte conveyed a lot in St. Louise, on First street, formerly owned by one Periconneau, to Cecile Compare for life, with cross-remainders over to her two daughters, Catharine and Louise, and her son, Hyacinth. This last person died in 1835, a minor, and without leaving issue.

On the 17th February, 1841, Catharine and Louise Compare conveyed to M. P. Leduc, for the use of their mother, Cecile Lecompte (who had previously to this time married said Hyacinth Lecompte), all their reversionary interest in said lot of ground on First street. Both Catharine and Louise were at this time minors. Louise afterwards married George W. Wilson, and became of age on the 1st of February, 1842.

On the 3rd of June, 1841, said M. P. Leduc, Hyacinth Lecompte and Cecile, his wife, conveyed the lot on First street to T. J. White, in consideration of one thousand dollars paid in cash, and a lot on Mound street, previously conveyed by T. J. White and wife to Leduc as trustee of said Cecile Lecompte. The bill alleges that the bargain was a bad one on the part of Lecompte and wife, the difference in value between the two lots being really four thousand instead of one thousand dollars. It is not stated in the bill what interest is given by the deed from White to Leduc, for the use of Cecile Lecompte, to the children of said Cecile Lecompte. Shortly after this conveyance from Hyacinth Lecompte and wife, and Leduc to White, the latter conveyed to E. Tanner, and on the 9th June, 1841, Leduc, Hyacinth and Cecile Lecompte, conveyed to R. C. Gist, as trustee for Edward Tanner, the Mound street lot, which had been conveyed to them by White, as a security for a release from Catharine Compare and Louise Wilson, formerly Compare.

The bill then proceeds to represent that considerable efforts, and some very unfair ones, were used by the mother, Cecile Lecompte, to procure the release or ratification of a former conveyance from her daughter, Mrs. Wilson; and that finally the said Cecile (the mother) told said George W. and his wife Louise, that if they would confirm said deed, which was executed as heretofore stated by Catharine and Louise Compare, she, said Cecile, would by deed, grant to said George W. and his wife the same interest in said lot on Mound street, to be enjoyed at once, which they would be entitled to at the death of said Cecile, and that she would give immediate possession, and that she would pay to George W. and wife that portion of said sum of one thousand dollars, paid as aforesaid by T. J. White, as the difference in value between the lots exchanged, to which they would be entitled at her death; and that if unable to pay the five hundred dollars in hand she would secure its payment.

The said George W. and wife thereupon executed their deed of ratification on the 21st February, 1842, but the said Cecile Lecompte refused to perform her part of said agreement. This bill is brought by George W. and his wife and one Chambers, to whom the said George W. and wife had made a conveyance as trustee for the benefit of themselves jointly, and their survivor and their heirs, &c. Hyacinth Lecompte had died before the filing of the bill.

At the April term, 1845, the defendant filed her demurrer to the bill, and on the 31st May, the following special causes of demurrer were assigned: 1st. That the real estate, mentioned in the said bill, on Mound street, was and is held by the defendant for her life, and the remainder in said real estate goes to the said wife of Wilson, and the said Catharine Compare, or the survivor of them, and the said defendant has no power to convey said property, or any part thereof, prior to the death to either of the persons entitled in remainder. 2nd. Because the bill does not show that the person entitled to the remainder consented to the agreement set up in the bill. 3rd. Because the complainants have a remedy at law. 4th. Because the said agreement in relation to said real estate is void by the statute of frauds 5th. Because the said H. W. Chambers ought not to be a party to said bill. The demurrer was sustained and the bill dismissed, and from this decree the complainants have appealed.

The first question which arises in this case, is whether the defendant can by demurrer avail herself of the benefit of the statute of frauds. Where the bill sets out the contract in general terms, the presumption of law is that it is a legal and valid contract, and therefore, if a contract in relation to land, that it is in writing and signed by the party to be charged therewith; consequently, if the defendant in such case desires to set up the statute as a defense, it must be done by a plea in bar, or insisted on in the answer. But where the complainant in the bill shows a contract not in writing, and so expressly describes it, the defendant may demur; and unless the facts set forth in the bill are sufficient to withdraw the contract from the operation of the statute, the demurrer must prevail. Corine v. Graham & Bleeker, 2 Paige, 177.

In this case the bill in terms sets up a verbal contract, and is therefore a fit subject for demurrer. The only question is whether the facts and circumstances mentioned in the bill are sufficient to take the case out of the statute.

The usual ground upon which courts of equity have withdrawn contracts from the operation of the statute of frauds is part performance; but in what this part performance consists, has been a question upon which a great variety of opinions has prevailed. In former times, and especially during Lord Hardwick's administration of this branch of the law in England, it was supposed to be well settled that the payment of a considerable portion of the purchase-money was such a partial performance of the contract as exempted it from the operation of the statute; but this opinion soon encountered opposition, and appears to have been finally, entirely...