Gibbs v. Sullens

• Decision Date: 31 July 1871
• Parties: WILLIAM S. GIBBS, Respondent, v. J. C. SULLENS, Appellant.
• Court: Missouri Supreme Court

48 Mo. 237

WILLIAM S. GIBBS, Respondent,

v.J. C. SULLENS, Appellant.

Supreme Court of Missouri.

July Term, 1871.

Appeal from Morgan Circuit Court.

J. C. Campbell & Pemberton, for appellant.

Defendant cannot be ejected after he has laid out his money on the contract. It would work a fraud upon him. (25 Mo. 63; 23 Mo. 423.) There was part performance of the verbal contract, and it ought to be enforced entire. (28 Mo. 134, 604; 35 Mo. 316.)

The payments made to plaintiff the law required to be applied to the individual indebtedness in the absence of directions to the contrary. There is no evidence that defendant knew that plaintiff was a member of the firm, or that defendant was indebted to it. (2 Pars. Cont. 631-4, and notes.)

A. W. Anthony, for respondent.

CURRIER, Judge, delivered the opinion of the court.

This is an action of ejectment. The defendant relies upon an equitable defense. His answer sets out, in substance, that the defendant is in possession of the premises sued for, as the plaintiff's vendee under a contract of purchase, and that the purchase money has been fully paid. He asks that the title may be decreed to him. The averments of the answer were put in issue by a replication.

The questions discussed here arise upon the action of the court in giving and refusing instructions. On the main issue the jury were told, in effect, that their verdict should be for the defendant in case they found from the evidence the existence of the alleged contract of purchase, and that the defendant had either “paid some considerable portion of the purchase money, or had made such valuable and lasting improvements on the premises as would work materially to his injury if he should be ejected.” This was certainly sufficiently favorable to the defendant. The theory of his answer is that the purchase money was paid in full, and that the plaintiff was, in consequence of that fact, bound to convey. If he had neither paid any considerable part of the contract price, nor made such valuable and lasting improvements upon the property that his ejectment would work material injury to him, what pretense can there be that the defense was made out? There is no claim set up that the time in which the payments were to be made had not fully elapsed. The contract of purchase was made in 1867, and the plaintiff testifies, and on that point is not contradicted, that the payments were to be made within one year from the making of the contract. Where a party goes into possession under a contract of purchase, and makes default, he is liable to be turned out by an ejectment. In such an action by the vendor against the vendee, the latter can alone defend his possession by showing a performance of the contract on his part, and that he is not in default. (Glascock v. Robards, 14 Mo. 350; Tyler on Eject. 565.)

The defendant based his right of possession solely upon the ground of his purchase and equitable ownership. The instruction, therefore, in relation to the supposed tenancy, was properly refused. Besides, it is perfectly apparent that the...