Harrison v. Town

• Decision Date: 31 October 1852
• Citation: 17 Mo. 237
• Court: Missouri Supreme Court
• Parties: HARRISON, Respondent, v. TOWN & DIXON, Appellants.

17 Mo. 237

HARRISON, Respondent,

v.TOWN & DIXON, Appellants.

Supreme Court of Missouri.

October Term, 1852.

1. Mere inadequacy of consideration, unconnected with any circumstances of unfairness, overreaching or oppression, is no objection to enforcing the specific performance of a contract, when the parties stand upon an equality, with equal means of information, and not in any confidential relation, and when no artifice is practiced.

2. The defendants, who are resisting the specific performance of a contract, cannot object to a decree because it gives to the complainant a greater interest in the contract than he is entitled to, as against other parties who are also entitled under the contract.

Appeal from St. Louis Circuit Court.

This was a bill, filed by Harrison, October 3, 1846, for the specific performance of the following agreement, dated August 30, 1838, acknowledged March 22, 1839, and filed for record June 13, 1840:

“Agreement between Ephraim Town, of the one part, and John Smith, William Smith, Henry Smith and Dalzell Smith, of the other part. The parties of the second part hold a note given by the party of the first part, dated August 20, 1817, payable thirty-six months after date, to William Smith, agent of the Steam Mill Company, for the sum of three hundred dollars. This note was given in part consideration of lot No. 3, on the plat of the town or addition to St. Louis, laid out by William Smith, Manuel Lisa and Frederick Bates. A suit has been brought in chancery in the St. Louis Circuit Court, by the party of the first part, to obtain a decree for the title to said lot. Now it is agreed between the parties hereto that, if a decree in said suit shall be obtained for the said party of the first part, for the title to the said lot, the parties of the second part shall surrender to the party of the first part the said note, and the party of the first part shall convey to the parties of the second part, the one undivided half of said lot of ground; but if said party of the first part shall fail in said suit, then the costs of the suit shall be borne by the parties of the second part paying one half. The above note, in case of failure of said suit, is to be paid by the party of the first part.”

The bill stated that the above agreement was executed during the pendency of a suit in chancery, brought by Town against the heirs of William Smith, Manuel Lisa and Frederick Bates, to enforce the specific performance of a contract dated August 20, 1817, made by said Smith, Bates and Lisa, while they lived, to convey the said lot upon the payment of three notes for three hundred dollars each, of which the note mentioned in the above agreement was the only one remaining unpaid. The Smiths mentioned in the above agreement were the heirs of William Smith. The complainant claimed to have acquired their interest in the agreement.

Town, in his answer, stated that the agreement was written by William Smith, one of the parties of the second part, and signed by him without reading the same, and that he was not aware, until long after its execution, that it contained a provision by which he was bound to pay off the note even though he might fail in his chancery suit against the heirs of Smith, Bates and Lisa. He claimed that the agreement was without any consideration, and was entirely for the benefit of said Smiths; that it was inequitable, unconscientious and a hard bargain, and therefore ought not to be decreed to be specifically performed. He also stated that, at the time of the execution of the agreement, the portion of the lot called for in the agreement was worth largely more than the note which was to be given up to him.

The cause was heard on the bill, answers and replications.

On the hearing, the complainant proved himself to be the owner of the interest of John and William Smith in the agreement above set forth, and also in the lot of land therein described. He also proved the death of Henry Smith, which occurred before 1840, and that his heirs at law were the aforesaid John, William and Dalzell Smith. He also gave in evidence a deed of assignment dated the 21st June, 1841, and duly acknowledged and recorded, executed by said Dalzell Smith and wife to Andrew Elliott, for the benefit of Smith's creditors, by which said Smith and wife conveyed, for the purposes set forth in the deed, the following described real estate, to-wit: All their remaining unsold and undivided right, title and interest in and to the real estate of the late William Smith, deceased, of the city of St. Louis, and situate in Smith, Bates and Lisa's Addition to said city, acquired by said Dalzell, as an heir of said William, deceased, and owned by him as tenant in common, together with the other legal representatives of said William, Frederick Bates and Manuel Lisa, all deceased. Also a deed from Andrew Elliott to complainant, dated May 11th, 1846, and duly acknowledged and recorded, purporting to have been executed under and by authority of said deed of assignment and to convey all the interest of said Dalzell Smith in and to the aforesaid lot, to said respondent.

The defendants gave in evidence a will of said Henry Smith, duly probated August 23, 1845, and dated July 1, 1837, whereby he devised to said Dalzell Smith and his heirs, all the real estate which he owned, whether lands, tenements or hereditaments, or which was coming to him from the estate of his deceased father, William Smith, excepting a lot which he devised to his niece, but which was not the lot in controversy in this suit. And after making other bequests, he devised and bequeathed all the rest, residue and remainder of his estate, real, personal and mixed, unto his aforesaid brother, Dalzell Smith.

It also appeared that, at the time of the trial, the lot in question was worth $100 per foot; that property in Smith, Bates and Lisa's Addition, which was bought in 1828, for $2,800, was sold in 1833-4, for $6,000, and was worth in 1838, from forty to fifty dollars per foot; that the value of property there, after that, remained stationary until about the year 1840; after that date it rose rapidly in value. The above was testified in regard to property to which the title was good.

It also appeared that the suit brought by Town against the representatives of Smith, Bates and Lisa, to enforce their contract of August 20, 1817, was commenced on the 7th of February, 1836. Also, that on the 28th of March, 1843, Town conveyed all his interest in the lot in question to Mrs. Dixon, his daughter, and wife of D. W. Dixon, both of whom were defendants in the suit. Natural love and affection constituted the consideration for said conveyance.T. Polk, for appellant. 1. Inadequacy of consideration is sufficient to prevent the specific performance of a contract, although it might not be great enough to set it aside. Seymour v. Delancey, 6 Johns. Ch. R. 224. St. John v. Benedict, ib. 117. 1 Story's Eq. § 161. 2 ib. §§ 769, 770. Buxton v. Lister, 3 Ark. 385. Osgood v. Franklin, 2 J. C. R. 23. Mortlock v. Buller, 10 Vesey, 292. Day v. Newman, 2 Cox, 77. A change in the value of the land ought to have great weight with a court in the matter of decreeing specific execution. Brashier v. Gratz, 6 Wheat. Rep. 539. 2. The court below treated the contract as realty, not affected by the will of Henry Smith, which only operated on such real estate as he owned at the date of its execution. By this construction, too small an interest was recognized in the minor heirs of Dalzell Smith. If the contract was a chose in action, then Henry Smith's portion passed by his will to his legatee, Dalzell Smith, and the minor heirs of the latter are entitled to one half of the contract.

Geyer & Dayton, for respondent. The alleged inadequacy of consideration is the only part of the defence upon which there is any evidence; but inadequacy of consideration alone would not defeat the contract, except where it is so gross as to amount in itself to conclusive and decisive evidence of fraud. 1 Story's Eq. § 245 to § 249. 2 ib. § 751, § 783. White v. Thompson, Dev. & Batt. Eq. Rep. 493. Fupp v. Fupp, Rice's Eq. Rep....