Dazey v. Elvin

• Decision Date: 06 February 1911
• Citation: 153 Mo. App. 435,134 S.W. 85
• Parties: DAZEY v. ELVIN et al.
• Court: Missouri Court of Appeals

134 S.W. 85

153 Mo. A. 435

DAZEY v. ELVIN et al.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. JUDGMENT (§ 137) — DEFAULTS — SETTING ASIDE — STATUTES.

Under the direct provisions of Rev. St. 1909, § 2094, the circuit court in its discretion may before final judgment set aside a default, and allow the action to be defended.

2. JUDGMENT (§ 139) — DEFAULTS — SETTING ASIDE — DISCRETION OF COURT — EXERCISE OF DISCRETION.

It was not an abuse of the trial court's discretion to allow one claiming to be a bona fide purchaser of land without notice to intervene and defend an action against the land after default, even though a lis pendens had been filed, for the lis pendens only prevented him from holding the land to the plaintiff's injury, and, if he had a defense, he should be allowed to maintain it.

3. SPECIFIC PERFORMANCE (§ 8) — NATURE — DISCRETION OF COURT.

Specific performance of a contract is not a matter of right, but rests in the sound discretion of a court of equity, which should consider the interests of all parties concerned.

4. SPECIFIC PERFORMANCE (§ 4) — NATURE — EXISTENCE OF OTHER REMEDY.

One who has an adequate remedy at law cannot have specific performance of a contract, and hence one cannot have specific performance of a contract which would subject land in the hands of an innocent purchaser to the payment of damages for a breach of contract, if the one who broke the contract is solvent, and a money judgment against him can be collected, and the only relief sought is money damages with a lien on land to secure it.

5. SPECIFIC PERFORMANCE (§ 119) — RELIEF — BURDEN OF PROOF.

Where a petition seeking specific performance of a contract which would subject lands now in the hands of an innocent purchaser to the burden of a debt alleged that the seller was insolvent, which was put in issue by a general denial, the burden of proving insolvency is upon the plaintiff, for his right to specific performance depends upon insolvency.

6. APPEAL AND ERROR (§§ 181, 281) — PRESENTATION OF GROUNDS OF REVIEW IN LOWER COURT — FAILURE.

Error not presented at trial or in the motion for new trial cannot be raised on appeal.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by J. E. Dazey against Frank Elvin and another, in which F. A. Laurence intervened. From a judgment for defendants, plaintiff appeals. Affirmed.

Cole, Burnett & Moore, for appellant. Thos. J. Smith, for respondents.

COX, J.

The essential facts out of which this litigation grew are as follows: On December 23, 1907, the following contract was entered into between plaintiff and defendant Frank Elvin: "Findley, Illinois, December 23, 1907. I have this day sold to Frank Elvin my livery stock in Pontiac, Ill., for the sum of six thousand dollars to be paid in the following manner—$500.00 cash, $500.00 on or before April 1st, 1908, $2,000.00 in merchantable notes, $3,000.00 secured by mtge. on south half of Sec. 15, Ozark T. P. Barton Co., Mo., to run for a period of five years from Dec. 1st, 1907, int. at the rate of five per cent payable semi-annually. Said livery stock is to remain in possession of J. E. Dazey until deal is consummated. J. E. Dazey. Frank Elvin." Defendant Frank Elvin refused to comply with this contract and conveyed the land mentioned therein to his brother, J. C. Elvin, and also executed some form of statement setting forth that one J. H. Harlow was the owner of a one-third interest in the land. The deed to J. C. Elvin and the statement as to Harlow's interest were filed for record in Barton county. On defendant Frank Elvin's refusal to comply with the contract upon his part, plaintiff sold the livery stock mentioned in the contract at public auction, from which sale he realized $4,559.35, for which he gave proper credit, then brought this suit alleging the facts above set out, and further alleging that the conveyances of the property were fraudulent, alleged the insolvency of Frank Elvin and prayed an accounting and a decree of specific performance requiring defendant Frank Elvin to execute the mortgage provided for in his contract and for general relief. Personal service was had upon defendants Frank Elvin and J. C. Elvin, and a lis pendens was filed by plaintiff. On April 15, 1908, default judgment was entered for plaintiff. The cause was continued for two terms without final judgment having been rendered, and on January 11, 1909, F. A. Laurence was on his own application, and against plaintiff's objection, made a party defendant on the...