Cloud v. Ivie

• Decision Date: 31 July 1859
• Citation: 28 Mo. 578
• Parties: CLOUD, Plaintiff in Error, v. IVIE, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 578

CLOUD, Plaintiff in Error,

v.IVIE, Defendant in Error.

Supreme Court of Missouri.

July Term, 1859.

1. The statute of frauds does not embrace resulting trusts.

2. Where two proprietors of land agree that one of them shall enter under the graduation law of Congress an adjoining tract of government land, each furnishing one-half the sum required to pay the graduation price, and that the one who enters shall convey one-half the tract to the other, and the entry is made under this agreement; held, that there will be a resulting trust as to one-half of the land entered.

Error to Newton Circuit Court.

The petition in this case is substantially as follows: Plaintiff states that he is the owner of and occupies for agricultural purposes a certain forty acre tract; that on the ____ day of ____, 1858, a certain forty acre tract of government land [describing it] was subject to entry at the graduation price of one dollar per acre; that the same is adjacent to plaintiff's farm above described; that, on the day and year aforesaid, the defendant agreed with plaintiff that if plaintiff would furnish him twenty dollars he would enter the forty acres above described and make to plaintiff a good deed of conveyance of the south half thereof; that, confiding in the integrity of defendant and believing that he would perform his part of the contract, plaintiff delivered to defendant, for the purpose aforesaid, the sum of twenty dollars; that, confiding in the integrity of defendant, he proceeded to prepare a portion of the south half of the lot aforesaid for cultivation, clearing off the brush, timber, making rails, &c. that defendant did enter said tract, but has refused to make to plaintiff a deed as agreed.

The evidence adduced supported the petition. The court instructed the jury as follows: “Admitting all the evidence in the case to be true, the plaintiff can not recover.”

The plaintiff took a nonsuit, with leave, &c.

Hendrick, for plaintiff in error.

I. The court erred in instructing the jury. The petition was sufficient. The evidence sustained the petition.

NAPTON, Judge, delivered the opinion of the court.

The instruction given by the court, which caused the plaintiff in this case to take a nonsuit, does not disclose the grounds upon which it proceeded. Whether it was based upon a construction of the statute of frauds, or upon the act of Congress under which the land was entered, does not appear.

The statute of frauds does not embrace resulting or implied...