Graham v. Roseburgh

• Decision Date: 31 October 1870
• Citation: 47 Mo. 111
• Parties: ALEX. R. GRAHAM, Respondent, v. WILLIAM ROSEBURGH et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 111

ALEX. R. GRAHAM, Respondent,

v.WILLIAM ROSEBURGH et al., Appellants.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

H. S. Lipscomb and J. F. Benjamin, for respondent.

James Carr, for appellants.

WAGNER, Judge, delivered the opinion of the court.

This was a suit for specific performance, and the petition states substantially that John Graham, the father of the plaintiff, resided in Pittsburg, Pa., and died in February, 1869; that he was seized in fee simple of several tracts of land lying in the State of Missouri, among which was a tract in Shelby; that by the provisions of his last will and testament, dated March 20, 1866, he devised the residue of all his estate to defendants as executors and trustees, for the use and benefit of his three sons, one of whom was plaintiff, during their respective lives, and, at their deaths, to be distributed to their children then living; that defendants accepted the trust, and that one of the sons of the testator died previous to the death of the testator, leaving no descendants; that in August, 1868, the testator promised and agreed in writing, that in consideration of natural love and affection, and the further consideration that one McMurtry, who was the father-in-law of plaintiff, would deed to plaintiff forty acres of timber land near the tract before mentioned, he would convey to plaintiff the same tract as soon as he was able to come to Missouri, and that he authorized plaintiff to take possession of said land and make improvements thereon; that by virtue of said promise he took possession of the land, the same being all prairie, and erected thereon an expensive dwelling, and made other valuable improvements, and is still in possession; that the condition contained in the promise, that McMurtry should convey the forty acres of timber land, has been fully complied with, and that the testator came to Missouri in the fall of 1868, for the purpose, among other things, of executing a deed conveying the land to plaintiff, but upon his arrival in this State he was prostrated with sickness and unable to do so, and that he lingered and finally died without making the deed. The bill, in conclusion, asked for a decree vesting the title in the plaintiff.

The answer denied all the allegations in reference to the agreement or promise for the conveyance of the land, and for a further defense set up that at the time of making the will, and at the time of the death of the testator, the testator was seized and possessed of a large amount of real, personal, and mixed property; that he owned a large and valuable tract of land in Ralls county, which he devised to defendants as trustees for the use of the plaintiff, for and during the term of his natural life, and then to his descendants; that, in addition to the foregoing specific devise to the defendants as truste...