Gallaher v. Hunter

• Decision Date: 30 September 1838
• Citation: 5 Mo. 507
• Parties: GALLAHER & MCCABE v. HUNTER.
• Court: Missouri Supreme Court

5 Mo. 507

GALLAHER & MCCABE

v.HUNTER.

Supreme Court of Missouri.

September Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY.

SCOTT & ZIEGLER, for Plaintiffs in Error. Several questions are presented: 1. Did not the sale, by George Gallaher to McCabe, of the interest of James Gallaher, with his knowledge and consent while under age, accompanied by his ratification and approval when of age, give McCabe a good title? 2. Could not McCabe, on the verbal ratification of the sale by James and his receipt of his pay (McCabe being in possession), have enforced a specific performance as against James? and, if so, was it not competent for him to take a deed for what he could have enforced in equity? 3. Was not the possession of McCabe notice to Haverstick and Hunter of his prior right, and did they not purchase of James with both actual and constructive notice? 4. Was it not competent for McCabe to perfect his title by deed from James, in pursuance of his prior contract, even if he had known of the existence of the bond of James to Haverstick? 5. Had McCabe any notice, actual or constructive, of the transactions between Haverstick and James Gallaher or Hunter? 6. Had not Haverstick and Hunter both acted in bad faith; and can they, not having clean hands, ask a decree? 7. Has not McCabe acted in good faith, and who has the superior equity in the case?

P. COLE, for Defendant in Error. The defendant below, McCabe and Gallaher, make a general assignment of error; but it appears to me there are but two points in his defense: 1. That he is a purchaser from George Gallaher, who, he alleges, sold the land of James when a minor; but James affirmed the sale after he came of age; yet the witnesses and his sale to Haverstick proved that he disaffirmed it. 2. That he, McCabe, bought the land in suit of James Gallaher himself, without notice.

TOMPKINS, J.

Hunter commenced his suit in chancery against Gallaher, McCabe, and one Haverstick. Haverstick failing to answer, the bill as against him was taken as confessed, and the Circuit Court entered up a decree against Gallaher and McCabe, on the bill, answer, and evidence given in the case; and to reverse that decree this appeal is prosecuted. The complainant states in his bill, that some time in the year 1825, one David Gallaher died possessed of a certain tract of land in said county of Washington, being intestate, and leaving a widow and several children; and that on or about the 21st day of February, in the year 1835, James Gallaher, the defendant, one of the heirs of the said David, by writing, under his hand and seal, acknowledged that he had sold to Jacob Haverstick all his interest in the said tract of land, which is described in said writing as the land on which said McCabe then lived; and that afterwards (to-wit, on the 6th July, 1835), said Haverstick sold and transferred all the interest he had acquired in said land to said Hunter; and that after the sale by ...