Ellis v. Bray

• Decision Date: 31 October 1883
• Parties: ELLIS, Appellant v. BRAY.
• Court: Missouri Supreme Court

79 Mo. 227

ELLIS, Appellant

v.BRAY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

Jere C. Cravens for appellant.

C. W. Thrasher and H. C. Young for respondent.

RAY, J.

This is an action in the nature of a suit in equity, originally brought in the Newton circuit court, and afterward, by change of venue, transferred to Greene circuit court, the object and purpose of which will be best understood by plaintiff's amended petition, which is substantially as follows:

That in the spring or summer of 1873, the defendant Bray claiming to have a tax title to the following described tracts of land situate in Newton county, Missouri, to-wit: The south half, southeast quarter section 23, and southwest quarter, southwest quarter section 24, and northwest quarter, northwest quarter section 25 and north half, northeast quarter section 26, all in township 27, range 33, containing in all 240 acres of land, proposed to sell plaintiff an undivided one-half of same for the consideration of $300, representing at the time, that for the consideration aforesaid, he could and would secure and obtain from one Goodrich, the former owner of said land, a good and perfect title to the same; that the plaintiff, after visiting and inspecting said land, in company with said defendant, accepted said proposition, with this further understanding and agreement between them, that the plaintiff, for the consideration aforesaid, was to have his choice of 120 acres of said land, and when so selected, the defendant Bray was to cause the same to be conveyed directly to plaintiff, by said Goodrich, with further understanding also that plaintiff should not be required to pay any part of said $300 until said defendant had so caused the title to said land to be perfected by conveyance from said Goodrich; that afterward, to-wit, on the 30th day of September, 1873, at the special instance and request of said defendant, and for his special accommodation, the plaintiff advanced and paid to defendant on said contract the sum of $165.

The petition then further states that the plaintiff, sometime thereafter, in 1874, and before said defendant had obtained any conveyance from said Goodrich, selected the following tracts of said land, to-wit: “Southeast quarter, southeast quarter section 23, and northeast quarter, northeast quarter section 26, all in township 27, range 33,” and thereupon the said defendant, at the instance and request of plaintiff, and on the further advancement and payment to defendant, by plaintiff, of the sum of $35, executed and delivered to plaintiff, in partial performance of said contract, a quit-claim deed for the land so selected, with the distinct understanding and agreement, however, that the said former contract and agreement on the part of defendant to perfect the title to said lands, by conveyance from said Goodrich, should remain and be in full force and effect.

The petition also, further states that said defendant Bray afterward, in April, 1875, obtained from said Goodrich, the former owner of said land, a deed to himself for all of said land, except the eighty acres so quit-claimed by defendant to plaintiff, as aforesaid; and at the same time, the said defendant Bray, in disregard and violation of his said contract with plaintiff, and for the purpose of cheating and defrauding the plaintiff of his just rights in the premises, caused said Goodrich to convey to the defendant B. F. Kinder, a near relative of the defendant Bray, the eighty acres of land last above described, as aforesaid; that said conveyance to said Kinder was made at the special instance and request of said Bray, and without any consideration whatever from said Kinder, who well knew the obligations of said Bray to cause the same to be conveyed to plaintiff; that plaintiff has often requested said Bray to comply with his part of said contract, and that he has always been ready and willing, and has offered to perform the same on his part, and now brings into court here for defendant the sum of $100, the balance of purchase money, so agreed upon. Wherefore plaintiff prays that whatever interest the said B. F. Kinder acquired in and to said eighty acres of land be divested and for naught held, and that the same be vested in plaintiff, and that, by the proper decree of the court, the title to an undivided one-half interest in and to said lands so conveyed to said Bray by said Goodrich, as aforesaid, be decreed to and vested in the plaintiff, and for other and proper relief.

To this petition the defendants filed separate answers. That of Bray was as follows:

Comes defendant, James Bray, and for separate answer to plaintiff's amended petition, denies each and every material allegation in said petition contained, except as hereinafter admitted, limited or explained. Defendant further answering says that on the 12th day of June, 1873, he held a tax title on the lands described in said petition, which fact was well known to plaintiff; that he, the defendant, entered into a contract in writing, with plaintiff, to sell to plaintiff and convey to him by quit-claim deed for $200 any two of the forty acre tracts named in said written contract which plaintiff should select, the lands named in said contract being the same as described in the petition--the deed to be made when the $200 should be fully paid. Said plaintiff was to pay interest at ten per cent on all deferred payments. This contract was executed by the said Bray and delivered to plaintiff, whereupon plaintiff paid defendant $5 as a part of the purchase money of said lands; that subsequently, and about the 30th day of September, 1873, plaintiff paid defendant $165 in pursuance of said contract, for which defendant gave plaintiff a receipt in writing. That in the spring of 1874 plaintiff paid the balance of said $200, at which time defendant and his wife executed and delivered to plaintiff a quit-claim deed conveying to plaintiff all the right, title and interest of this defendant in and to the southeast quarter, southeast quarter section 23 and northeast quarter, northeast quarter section 26, all in township 27, range 33, which deed the plaintiff accepted as a full compliance on the part of this defendant with the said contract. And defendant further answering denies that he ever made any such contract with plaintiff as is set forth in said amended petition, either verbal or in writing; and this defendant insists that no verbal contract for the sale of said land would be binding upon this defendant; denies that Ellis ever agreed to pay him the sum of $300 for said land, and denies that he ever agreed to convey to plaintiff one-half interest in the land described in said petition; denies that he ever agreed to procure from the former owner of said land a deed to plaintiff, or in any manner for plaintiff's benefit; denies that he ever made any contract with plaintiff in reference to said lands, except as hereinbefore set forth; avers that the contract between plaintiff and defendant in reference to said land has been fully executed, and plaintiff has already obtained all the interest in said land which this defendant ever agreed to convey to him. Defendant, therefore, prays judgment against plaintiff and for other proper relief.

The separate answer of Kinder was as follows, to-wit:

Defendant denies each and every material allegation contained in said amended petition, except as hereinafter admitted, limited or explained. Defendant further answering says that he purchased from C. G. Goodrich, through the defendant James Bray, the following portions of said lands, to-wit: Southeast quarter, southeast quarter section 23 and northeast quarter, northeast quarter section 26, all in township 27, range 33; that he paid a valuable consideration for the same; that at the time of said purchase he did not know of and did not have any information of any contract, or understanding, or promise between the plaintiff and said Bray, with reference to said land; that he bought and paid for the same, and took a deed therefor in good faith, believing that said Goodrich had a right to sell and convey the same to this defendant, and believing that no person in the world would be injured and defrauded thereby. Defendant therefore prays judgment, etc.

The replication of each of these answers is a general denial of all new matter set up therein.

The evidence, at the trial in the court below, as we gather from the bill of exceptions, is in substance as follows:

Daniel Ellis, the plaintiff, in his own behalf, testified substantially to the agreement and facts, as stated in his petition. Among other things he said he met defendant Bray, in the law office of J. P. Ellis, in the spring of 1873; that Bray said he owned 240 acres of land in Newton county near Joplin in Jasper county; that he wanted to sell it; and offered it to him at $2.50 per acre. To induce him to buy, he said it was right in the lead region, and he thought there was lead on it. I told him, if he could make me a good title, I thought I would buy. He said he had two or three tax deeds on the land, and was entitled to another; that the land was formerly owned by Mr. Goodrich, who had not paid the taxes for several years, and he was satisfied, when he knew of the tax title against it, he would make a conveyance for little or nothing. I told him I would go with him to examine the land, and did so. After looking over it, I told Bray that I would pay him $300 for a half interest in the 240 acres, just as soon as he would get Goodrich's title; I was not to pay anything until he perfected the title; he accepted my proposition, and said he would soon arrange the matter with Goodrich. His testimony is full and explicit, to the effect, that the half interest in said land, which was the subject matter of said contract, was that of the fee, and not a mere tax title, and extended to all of said lands. He explicitly says that his...