DeSpain v. Carter

• Decision Date: 31 July 1855
• Court: Missouri Supreme Court
• Parties: DESPAIN, Defendant in Error, v. CARTER & OTHERS, Plaintiffs in Error.

21 Mo. 331

DESPAIN, Defendant in Error,

v.CARTER & OTHERS, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1855.

1. Possession, valuable improvements made, and part payment, under a parol contract for the sale of land, entitles the purchaser to a specific performance.

2. Where the facts specially found by a court or jury are sufficient to support a decree for a specific performance, it will not be reversed because of a defective statement of the contract in the petition. (SCOTT, J., dissenting.)

Error to Buchanan Circuit Court.

Petition by Sarah Despain against the administrator of Lewis Despain and John Carter for the specific performance of a contract for the sale of a piece of land. Robert W. Donnell and Hugh D. Louthen, purchasers from Carter, with notice pending suit, were afterwards made co-defendants. The facts are sufficiently developed in the opinion of the court.

Loan, for plaintiffs in error.

Vories, for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

This is a suit for the specific performance of a parol sale of land, upon the ground of possession taken, lasting improvements made, and part payment of the consideration money.

The plaintiff below obtained a decree for the specific execution of the contract, and the defendants bring the case here by writ of error.

The principal objection made by the plaintiff in error to the decree of the court below, is upon the face of the plaintiff's petition, that it does not set forth any specific and definite contract for the sale of any land by the defendant, Carter, to the plaintiff, Sarah Despain; that the petition leaves the matter doubtful, whether the plaintiff, Sarah, was an original purchaser of the land in her petition mentioned from the defendant, Carter, or a sub-purchaser under her son, Lewis Despain.

In looking over the petition, there is some ground for this objection. It contains a very loose and garrulous narrative of the transaction between the defendant, Carter, and the son of the plaintiff, and the plaintiff herself. The counsel for the plaintiff below, respondent here, in answering the objection, admits that, under our new code, he stated in the petition the facts just as the old lady, his client, told them to him. The defendant, Carter, denies every important statement in the petition on which the plaintiff relies for relief. Although this case is one of the class most properly and most usually decided by the court, without the intervention of a jury, yet a jury was demanded, and to its verdict the issue was submitted.

The court gave the following instruction of its own accord:

“If the jury believe from the evidence, that about the first of November, 1847, the defendants, John R. Carter, Lewis Despain and plaintiff made a contract, under and by virtue of which defendant agreed to convey to plaintiff the south half of the north half of the north-west quarter of section thirty-one, (31,) in township 58, in range 35, in Buchanan county, in consideration of her paying fifty dollars, to be paid in rails, and the further consideration of her paying the entrance money to enter the same at the land office, at $1 25 per acre, and that under and by virtue of said contract she went into the possession of said land with defendants' consent, and made lasting and valuable improvements on the same, they will find the issue for the plaintiff, and incorporate the facts found in their verlict. If they find as above, they will also find the value of the improvements made by plaintiff; the amount paid by plaintiff to defendant, under the contract, if any thing; how much remains due and unpaid, if any thing; and if any part of the consideration is unpaid, whether the plaintiff offered or not to pay defendant the amount so unpaid before this suit was brought, and when. They will also find whether the second payment of the money to enter the land was offered to defendant before the 1st of January, 1850, and whether the third payment was offered before the 1st of January, 1851. Unless the jury believe as in the first instruction, they will find for defendant.”

The instruction given on the part of the plaintiff, and the one alluded to, is as follows:

“The plaintiff moves the court to instruct the jury that the facts stated in plaintiff's petition, that defendants, Robert W. Donnell and Hugh D. Louthen, purchased or pretended to purchase the land in said petition mentioned, with a full knowledge of plaintiff's rights, and in order to defraud and litigate plaintiff out of her rights in said land, not being denied in their answers, are to be taken as true, for the purpose of the trial of the cause.”

The jury returned the following verdict: “We, the jury, find that a special contract was made by defendant, Carter, with plaintiff, to convey to said plaintiff the south half of the north half of the north-west quarter of section 31, in township 58, in range 35, in Buchanan county, in consideration of which plaintiff was to pay fifty dollars, to be paid in rails, and furnish the entrance money to enter said land at the land office in Savannah, at $1 25 per acre; and that under and by virtue of said contract, plaintiff went into the possession of said land with defendant's consent, and made lasting and valuable improvements thereon. We also find the value of improvements made by plaintiff on said premises to be one hundred and thirty dollars, and that plaintiff paid defendant rails to the amount of thirteen dollars and fifty cents on said contract, and seventeen dollars in full for first payment of entrance money, in pursuance of said contract, and that the sum of twenty dollars remains due and unpaid upon the fifty dollars; and that plaintiff did, by her agent, tender to defendant the amount so due, in the fall of the year 1849. We also find that second and third payments, due land office, were tendered to defendant in the fall of 1849. We also find that plaintiff was in peacable possession of said land at the time defendant sold the same to Donnell and Louthen, and that they knew of plaintiff's rights.”

The court then found further that the amount of money necessary to enter the said land named in said finding of the jury is forty dollars, and the court declares the law to be that, upon the payment of the said sum due by plaintiff on her said purchase, so found by the jury, and the money necessary to pay for entering said land at the land office, which is in all sixty dollars, she is entitled to a conveyance of said land from said defendants, John R. Carter, Robert W. Donnell and Hugh D. Louthen, of all their right, title and interest in and to said land.

Without stating the whole of the evidence on the record, there is, in my opinion, evidence putting the matter beyond doubt that the plaintiff entered into possession of the land in controversy, with the knowledge and consent of the defendant, Carter; that she made lasting and valuable improvements thereon--a hewed log house, with brick chimney and shingle roof--had a well dug some twenty-two feet deep, and fenced in a small lot. These...