Clawater v. Tetherow

• Decision Date: 31 July 1858
• Parties: CLAWATER, Appellant, v. TETHEROW, Respondent.
• Court: Missouri Supreme Court

27 Mo. 241

CLAWATER, Appellant,

v.TETHEROW, Respondent.

Supreme Court of Missouri.

July Term, 1858.

1. A. purchased certain real estate in his own name and with his own money; at the date of the purchase he agreed with B. that if B. would before a certain specified time pay one-half of the purchase money he should be entitled to one-half of the land; held, that A., not paying any portion of the purchase money, had no interest, legal or equitable, in the land; that the contract of B. with A. was within the statute of frauds.

Appeal from DeKalb Circuit Court.

It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

Shambaugh, for appellant, cited 2 Story Eq. §§ 1050, 1201-1211, 385, 423, 439; Kent, Comm. 305-6; 2 Mo. 109; 15 Mo. 370; 21 Mo. 331; 1 Stark. on Ev. 74; 1 Greenl. Ev. §§ 27, 204; 19 Mo. 204; 14 Mo. 488; 2 Smith L. Cas. 544.

NAPTON, Judge, delivered the opinion of the court.

The petition in this case proceeds altogether on the assumption that James, from whom the plaintiff purchased, had an interest, equitable or legal, in the land which defendant had purchased from Clark. But looking at the petition and answer, and all the testimony in the case, which comes alone from James and Clark themselves, there is no ground for the assumption.

This is not a case of a purchase by one man in his own name with the money of another; nor is it the case of a purchase with one's own money in the name of another. The defendant purchased with his own money and took the title to himself. James, who acted as agent in negotiating the purchase, so far as we can see, had no interest in the land, equitable or legal. It seems, from the petition and answer, as well as the testimony of James, that there was a verbal understanding between defendant and James, that upon James' paying before the 1st of December, 1854, one-half of the purchase money and interest, he was to be a partner in the ownership of the land. Conceding this contract to be obligatory; it did not make James a partner at the time of his sale to plaintiff. The fact was, all the testimony shows, that he never paid a cent towards the purchase, nor even towards defraying the expenses of surveying and laying out the land into town lots.

There is an attempt in the petition to make the defendant's purchase the result of a fraudulent arrangement between defendant and James to cheat James' creditors; and, strange to say, James himself, who is the principal witness...