Freeland v. Mitchell
| Decision Date | 31 January 1844 |
| Citation | 8 Mo. 487 |
| Parties | FREELAND v. MITCHELL, ADMINISTRATOR OF THOMAS. |
| Court | Missouri Supreme Court |
APPEAL FROM PLATTE CIRCUIT COURT.
S. L. LEONARD & E. L. EDWARDS, for Appellant. The Circuit Court erred in overruling the demurrer. 1 Chitty's Pl. 353-6; Johnson v. Wygant, 11 Wend. 48; Champlin v. Rowley, 13 Wend. 258; Cunningham and others v. Morrell, 10 Johns. R. 203; ibid. 258.
HICKMAN, for Appellee. The only question now presented for the consideration of this court, worthy of notice, is--was the delivery of the possession of the land mentioned in the contract upon which this writ is founded, a condition precedent to a right to recover upon the contract? To show that it is not such a condition, a great many authorities might be produced, if deemed necessary. We refer to the case of Hancock v. Vanta, Hardin's R. 510; Bennett v. Executors of Pixley, 7 Johns. R. 249; Cook v. Johnson, 3 Mo. R. 239, 242.
Mitchell, administrator of Thomas, brought an action of debt against the appellant, upon the following agreement: “Article of Agreement made and entered into this 20th of November, 1839, between Valentine Thomas of the one part, and John Freeland of the other part, and both of the county of Platte and State of Missouri: The said party of the first part has, on the date aforesaid, bargained and sold to the said party of the second part all his right, interest and claim to one quarter section of public lands, to include where the said Thomas now resides, and bounded as follows, to wit: [here the boundaries are given] and the said Thomas binds himself in the sum of six hundred dollars to give said Freeland possession of the boundary aforesaid, on or before the first day of June next, and also is to give said Freeland privilege to make any improvements he may think proper previous to the time of getting full possession; and the said Freeland binds himself to pay to the said Thomas three hundred dollars, as follows, to wit--one hundred dollars in hand, and one horse beast at its valuation, and the balance on or before the the first day of June next. In witness whereof, &c. Signed and sealed by
THOMAS and FREELAND.”
The declaration did not aver any delivery of the possession on the first day of June; a demurrer was filed and overruled, and the court gave judgment for the plaintiff on the demurrer for the sum of $150 debt and $28 12 1/2 damages. The case is brought here by appeal.
The only question is, whether delivery of the possession of the land...
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