Clay v. Mayer

• Citation: 81 S.W. 1066,183 Mo. 150
• Parties: CLAY, Plaintiff in Error, v. MAYER et al
• Decision Date: 20 June 1904
• Court: United States State Supreme Court of Missouri

81 S.W. 1066

183 Mo. 150

CLAY, Plaintiff in Error, v. MAYER et al

Supreme Court of Missouri, First Division

June 20, 1904

Error to DeKalb Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed and remanded (with directions).

J. F Harwood for plaintiff in error.

R. A Hewitt, Jr., and J. T. Blair for defendants in error.

(1) Plaintiff is not entitled to specific performance. There is nothing to specifically perform. There is no suggestion that the land was Mrs. Mayer's separate property. Even her contract to convey could not be specifically enforced. Gwinn v. Smurr, 101 Mo. 550; Rush v. Brown, 101 Mo. 586; State v. Clay, 100 Mo. 571; Craig v. Van Bebber, 100 Mo. 584; McReynolds v Grubb, 150 Mo. 362. (2) Plaintiff is not entitled to an accounting since she was not in possession. Clay v. Mayr, 144 Mo. 380. (3) There is no prayer for a money judgment and where the case goes out on demurrer none can be supplied or implied from the prayer for general relief. Rush v. Brown, 101 Mo. 590.

OPINION

MARSHALL, J.

The plaintiff brings this case to this court by a writ of error, and asks a review of the judgment of the circuit court, sustaining a demurrer to her petition, she having refused to plead over.

The petition is as follows: "Plaintiff for cause of action and bill in equity states that the defendants are husband and wife and were so at all times hereinafter mentioned.

"That on the twenty-seventh day of January, 1894, the defendants were the owners and in the possession of the following described tracts or parcels of land situate in DeKalb county, Missouri. (Here follows description of the land which is unnecessary to quote.)

"That on said last-mentioned date, the plaintiff contracted with the defendants to purchase said lands for the price and sum of seven hundred dollars, to be paid as follows: The sum of three hundred and forty dollars and fifty cents to be paid to one Thomas L. King, who held a mortgage to that amount against said lands; the balance, three hundred and fifty-nine dollars and fifty cents, to be paid to the defendants.

"That possession of said land was to be delivered to plaintiff by defendants on the first day of June, A. D. 1894. That in consequence of the lateness of the season, when possession was to be given to plaintiff, she employed defendant, Otto Mayer, to make improvements and to plant crops on such land to be grown during the crop season of 1894 and paid him therefor altogether the sum of thirty dollars. That it was agreed between the plaintiff and defendants that when plaintiff had assumed the payment of the mortgage aforesaid to the satisfaction of said Thomas L. King, and the balance of the purchase price of seven hundred dollars, to-wit, three hundred and fifty-nine dollars and fifty cents, paid to the defendants, then the defendants would make and execute to the plaintiff a general warranty deed to the lands described. That the plaintiff at the time of such contract of purchase and sale paid the de-defendants one dollar to bind the bargain. That afterwards on the twenty-first day of February, 1894, she paid defendants on account of such bargain and sale, the sum of ninety dollars. That afterwards on the twenty-eighth day of February, 1894, she paid the defendants on account of such bargain and sale, the sum of one hundred and ninety-five dollars. That in the meantime plaintiff paid for defendants the sum of three dollars for an abstract of title to said lands, which defendants had agreed to furnish. That on or about February, 1894, the plaintiff at the instance and request of the defendants, and in company with them went to said Thomas L. King and assumed the payment of said mortgage, and obtained from said King an extension of one year's time in which to pay the same, which arrangement was satisfactory to all the parties concerned.

"That afterwards on the fifteenth day of May, 1894, the defendant, Mary Mayer, came to the city of St. Joseph, Missouri, where the plaintiff lived, and there on the same day, made and acknowledged and delivered to the plaintiff a general warranty deed to such lands, at which time plaintiff paid to said defendant Mary the sum of seventy dollars, and also paid for said defendant Mary the sum of one dollar and fifty cents, the fee for drafting and taking the acknowledgment to said deed. That on the next day, May 16, 1894, the plaintiff went from the said city of St. Joseph to the city of Stewartsville, DeKalb county, Missouri, and took said deed there in order to have same executed by the defendant, Otto Mayer. That on said day said defendant Otto did sign said deed and acknowledge the same before Benjamin Clark, a notary public of DeKalb county, Missouri. That said deed was left in the possession of the said notary for a time sufficient to endorse thereon and certify his official certificate of the fact of such execution, and acknowledgment by said defendant Otto, and in the meantime the plaintiff left said notary's place of business.

"That in a short time plaintiff returned to said notary, expecting to receive said deed, and was informed by said notary that during plaintiff's absence, the defendant, Mary Mayer, had called for said deed and that he had given it to her. That on the same day, to-wit, the sixteenth day of May, 1894, plaintiff went to the defendant, Mary Mayer, and requested and demanded of her the delivery of said deed to plaintiff. That there and then the said defendant Mary refused to deliver said deed to plaintiff and has ever since refused so to do, and has since destroyed said deed by burning the same.

"That plaintiff often afterwards demanded said deed from the defendants, but at all times the defendants refused to deliver the same, or to deliver the possession of such land to plaintiff or to her husband, William Clay, or to return to plaintiff the money she had paid defendants for such land. That when plaintiff found that she could not obtain her deed to said land, and that defendants were determined to defraud her out of the land and also keep the money she had paid them for the same, she, on or about July, 1894, went to the said Thomas L. King and purchased the said mortgage he held against said land and at plaintiff's request said King assigned said mortgage to plaintiff's agent and trustee, one G. E. Gleason, who, afterwards, as such assignee advertised said lands to be sold under the terms of such mortgage, on the eighteenth day of August, 1894, so that the plaintiff might obtain title to said lands. But before the day of such sale the defendants to further consummate their fraudulent designs to cheat and defraud the plaintiff out of the title to said lands, paid the amount of such mortgage to plaintiff's agent and trustee, said G. E. Gleason, and prevented such sale.

"That on or about the fifteenth day of June, 1895, plaintiff's husband, William Clay, under the advice of his attorneys, instituted in the circuit court of DeKalb county, Missouri, against defendants, a suit in ejectment for the possession of said lands, joining the co-plaintiff with himself, this plaintiff, who was then his wife. That said action was tried in said court at the October term thereof, 1895, and judgment rendered in favor of the defendants upon a demurrer to the evidence on the part of plaintiffs, on the ground that ejectment was not the proper remedy.

"That said judgment was affirmed in the Supreme Court of Missouri in or about the month of June, A. D. 1898. That during all of the times herein mentioned and set forth, and until the month of February, A. D. 1900, plaintiff was a married woman and the wife of William Clay, but that the plaintiff is now single and unmarried, having been granted a divorce from said husband. Plaintiff further states that defendants are still in possession of such land, and have always refused to surrender the same to plaintiff, and have kept all of the money she paid them for same. That the yearly value of the rents and profits of said land is the sum of one hundred dollars. The plaintiff has no adequate legal remedy to obtain her just rights.

"Wherefore, plaintiff prays that this court will take an accounting between plaintiffs and defendants, and charge defendants with the rents and profits of said land from the first day of June, 1894, together with the money plaintiff paid for putting in the crop of 1894, and allow them credit for the amount of said mortgage, and to render a judgment or decree, vesting the title to said land in the plaintiff upon the payment of such sum, if any, found due to the defendants, and plaintiff prays for all further and other relief meet and proper in the premises."

The demurrer interposed is as follows: "Come now the defendants in the above-entitled cause and demur to the petition of the plaintiff herein for the following reasons, to-wit:

"1. Because the petition fails to state facts sufficient to constitute any cause of action whatever against these defendants.

"2. Because the petition above shows on its face that plaintiff is...