Durretts v. Hook

• Decision Date: 31 January 1844
• Citation: 8 Mo. 374
• Parties: DURRETTS v. HOOK.
• Court: Missouri Supreme Court

8 Mo. 374

DURRETTS

v.HOOK.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM SALINE CIRCUIT COURT.

HAYDEN, for Appellants. 1. The court permitted the complainant, upon the hearing of the cause, to read and give irrelevant and incompetent proof. 2. The finding of the facts, by the court, was against the evidence. 3. The decree of the court is against equity, and is not warranted by the evidence. 1st. The complainant has laid no foundation in his original or amended bills of complaint to warrant the reading of the paper writing, which he read as and for the will of Elijah Hook; he has not stated in his bill that said Elijah made a will, nor has he made an exhibit of a will in the bill of complaint; nor stated a reason or cause why, if there be a will, he did not produce it as an exhibit; nor, in fact, has he stated, that the said Elijah devised by will the land mentioned in the bill. Therefore, the paper writing read as a will was foreign to the facts charged in the bill. See 21st section of the statute, Practice in Chancery, p. 510, of the Digest of 1835; 1 Wheeler's Dig. 320; 1 Bibb, 173; 1 A. K. Marsh. 325. 2nd. The answer of Richard Durrett not having been replied to by complainant, stands admitted and is conclusive, and therefore the evidence of Thomas, so far as it may appear to cotradict his answer, is to be wholly disregarded. 1 Wheeler's Ch. Dig. 341; 2 Cowen, 711; 1 Bibb, 277; 2 Cowen, 118. But even if the answer of Richard Durrett were denied by replication, so as to make it proper for the court to look into the evidence of Thomas, the court will perceive, that the demand spoken of by the witness was not a demand of a deed for the tracts of land mentioned in the bill of complaint, but was a demand of a deed of conveyance for a tract of land stated by the witness as having been purchased by said Richard Durrett of said Clark, whereas, the complainant, in his own bill, does not pretend, that the purchase of the land was made by Richard Durrett, but that it was made by Benjamin L. Durrett of said Clark, so that his evidence is inapposite and irrelevant to the cause; but, as a matter of course, it cannot be looked into as against the defendant, Richard Durrett. 3rd. The decree is against equity, and not warranted by the proofs in the cause. In the first place, it is most manifest, from the answers of defendants, and proofs, that complainant has no claim to the decree against Richard Durrett, for, by the answer of him, R. Durrett, which is to be regarded as true, the complainant has not complied with the contract made by McAlexander with defendants, nor did the said McAlexander, his assignor. And it is equally clear, that the decree against the defendant, Benjamin, is unwarranted. First, because the contract was by parol, and the bond for title was not delivered to McAlexander by Richard Durrett, with the assent of said Benjamin L. Durrett, but on the contrary, it was taken by McAlexander from the table of Richard Durrett, without his consent: but had it been taken with the consent of R. Durrett, it would not have amounted to a delivery binding on Benjamin L., because Benjamin L. expressly limited the agency of of Richard Durrett to the preparing and signing the bond, under positive directions to him not to deliver it, but to keep it to be delivered by him, Benjamin L. Durrett, himself, to McAlexander. Second. If the bond had been delivered by the authority of Benjamin, the contract was not complied with by McAlexander; but, on the contrary, a studied system of unfairness, as well in obtaining the consent of Benjamin verbally, to sell the land, as also to violate it on the part of McAlexander, and of which complainant was fully advised and had notice. A system of conduct wholly and utterly irreconcilable with the principles of good faith and honesty, and such as to deprive the complainant of all claims to the assistance of a Court of Chancery to compel a spcific performance of the contract. See the following authorities: 6 Johns. Ch. R. 222, et seq., Seymour v. Delancy, and the authorities there cited.

S. M. BAY, also for Appellants. 1. The specific execution of a contract in equity, is matter not of absolute right in the party, but of sound discretion in the court, and this descretion must be exercised according to the general rules and principles of Courts of Chancery. See 2 Story's Eq. Jur. pp. 39, 47, 53, 79, 81; 1 Sugden on Vendors, 247; Seymour v. Delancy, 6 Johns. Ch. R. 222. In this case, Chancellor Kent remarks: “It is a settled principle, that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances.” 2 Bibb, 78; 11 Peters, 229. 2. Unless the agreement is fair and just in all its parts, and equitable under all the circumstances, courts of equity will not decree specific performance, but will leave the party to his remedy at law. Ibid. In Baxter v. Lister, 3 Atk. 385, Lord Hardwick remarked that nothing was better established in chancery, than that every agreement or contract of sale, ought to be certain, fair, and just in all its parts, and if any of those ingredients were wanting in the case, the court would not decree a specific performance. 10 Vesey, 292; 18 ibid., 10; 4 Peters, 328. 3. In this case, it is evident, that there was a design on the part of McAlexander, complainant's vendor, and complainant, to overreach and mislead the defendant, Benjamin, by leaving upon his mind the impression that he was to receive a part of the consideration in money. The conduct of McAlexander throughout the whole transaction was unfair and unjust, and such as no honest man would have resorted to. He expressly declares that he agreed to pay the balance of the purchase money in a day or two, and that at the time of the purchase, he purposely avoided saying anything about making payment in notes on the defendant, Benjamin. 4. Admitting, that the agreement was such a one as a court of equity would compel the parties to specifically perform, yet the decree of the Circuit Court essentially changes the terms of the agreement, by permitting the complainant to credit a part of the consideration of the land, on the bond of the defendant, Benjamin, to complainant. Instead of decreeing the specific performance of the agreement between McAlexander and Bejamin Durrett, the court has decreed the execution of that which never was the agreement of the parties.

TODD, for Appellee. 1. The offer to pay Benjamin L. Durrett the sum of $280 which McAlexander owed him on the purchase of the land, in Durrett's own notes then due, without any pretended offset, is a good payment. 2. The facts and circumstances do not disclose any fraud in procuring the contract of sale from Durrett, by not disclosing a projected engagement to purchase his notes to make the payment. 3. By the will of E. Hook, the complainant is devisee of this contract; and it is no objection to the will, that it was a joint testament, for the benefit of the survivor. 4. Offer is fully proved of the payment of the last installments, as no objection was made at the time; but the party need not tender, when he is informed that it would be unavailing. 6 Litt. Cases, 204. 5. The statute of frauds does not protect Benjamin Durrett, who holds an equity only, and he procuring and assenting to the sale of the legal title. 6. That McAlexander, the assignor of the title bond, is a competent witness, being released in full of the liability by the assignment; and his being a party in the suit is formal only. 7. If both parties are in default, neither can take advantage of non-performance. 4 Bibb, 413. 8. Benjamin L. Durrett, the holder in equity, encouraging McAlexander to buy the legal estate, cannot set it up against Hook, and is not within the statute of frauds. 2 Sugden on Vendors, 299; 1 Johns. Ch. R. 354; 3 Litt. 55.

TOMPKINS, J.^a1

On the 11th day of June, in the year 1838, William Hook commenced this suit against Richard Durrett and Edmund McAlexander, in the Circuit Court of Saline county, on the chancery side thereof. In his bill he states, that on the 25th day of October, 1834, Richard Durrett made and executed to Edmund McAlexander his writing obligatory, by which he bound himself to execute and make to said McAlexander a good and lawful deed to a certain tract of land in said county, containing one hundred and twenty acres; and that, for a good and valuable consideration paid by Elijah Hook and William Hook, the complainant, the said McAlexander assigned to them the said writing obligatory; and the said conveyance having to be made by the said Richard Durrett on demand, and Elijah Hook, one of the assignees thereof, having departed this life on the first day of July, 1835, the complainant William, on the first day of January, 1838, demanded of the said Durrett a deed for the same, according to the terms of said writing, and the said Durrett refused to make the same, &c.

The complainant further alleges, that he is sole devisee and executor of the said Elijah Hook, and that the said Richard Durrett, by said writing obligatory, admitted, that he had been fully paid for the said land by the said McAlexander; and the complainant states, that the same is true, or that, if he has not, it has been by the fault, negligence or consent of the said Durrett, and by his connivance, to form a pretext for not conveying to the complainant. The bill concludes in the usual manner, praying that the defendant be caused to answer, to convey, &c., and that McAlexander also answer, &c.

Richard Durrett answered, praying that Benjamin L. Durrett be made a party to the bill of the complainant, and stated, that the land mentioned in the bill was purchased by him, from one Richard Clark, for the consideration of four hundred and ten dollars; two hundred dollars of which said Benjamin paid to said Clark in cash, and executed his two notes, with this defendant as security, for the...