Harvey v. Morris

• Decision Date: 31 October 1876
• Citation: 63 Mo. 475
• Parties: M. D. HARVEY, Respondent, v. RANDLE MORRIS, Appellant.
• Court: Missouri Supreme Court

63 Mo. 475

M. D. HARVEY, Respondent,

v.RANDLE MORRIS, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jasper Court of Common Pleas.

Lay & Belch, with J. W. Sinnet, for Appellant, cited: Smith vs. Busby, 15 Mo. 244, 378; Luckett vs. Williamson, 31 Mo. 54: Same, 37 Mo. 388; Wellmans, Adm'r, vs. Dismukes, 42 Mo. 101.

W. H. Phelps, for Respondents cited; Isler vs. Egger, 17 Mo. 332; McJudae vs. Morman, 26 Wis. 588.

NORTON, Judge, delivered the opinion of the court.

This suit was instituted in the court of common pleas for Jasper county, on three promissory notes, one for $2,400, one for $11,152.72, and one for $50.50.

The defendant, in his answer, admits the execution of the notes, and also admits plaintiff's right to recover on the note for $50.50, but by way of defense to the other two notes, alleges that they were given in consideration of land purchased by defendant of plaintiff, in Jasper county, specifically described in the answer; that at the time of the purchase plaintiff executed his title bond, containing a covenant that on the full payment of the purchase money he would execute and deliver to defendant a good and sufficient warranty deed, conveying to him the title to said land; that he has ever been ready to pay said notes when a good title was made by plaintiff; that defendant had no title to said land, except the one-fifth interest to all but one forty-acre tract--the title of which was in one William Harvey. The answer further alleges that the defendant had made improvements on said lands amounting to $3,360; that he had paid on said notes the sum of $346.64, and also $1,697.16.

Plaintiff, in his replication, denies that payments were made, as alleged in the answer; admits that the notes were given in consideration of land sold to defendant, and that he executed the title bond as alleged, and states that at the time of its execution defendant was put in the peaceable and exclusive possession of said land, and that he was still in the occupancy and enjoyment of it. The replication denies all the other allegations of the answer, and avers the readiness of plaintiff to comply with the terms of his bond. The cause was tried by the court, and judgment rendered for plaintiff for the sum of $2,378, from which defendant appeals to this court.

On the trial evidence was introduced tending to show that plaintiff only had title to a portion of the land sold, and it was admitted that defendant was and had been in peaceable possession of the land in controversy, from the date of the contract of sale to that time. During the trial various exceptions were taken to the action of the court in refusing to admit evidence, and in giving and refusing instructions, which will not be noticed, as the sole question presented for the determination of this court is, whether the defense set up in the answer of defendant was sufficient to prevent a recovery of the notes sued on, without an abandonment of the possession of the land contracted for, and an offer to rescind the contract.

Where a purchaser of land, by virtue of the contract of purchase, is put in possession of the land purchased, he cannot resist the payment of the purchase money without offering to restore the possession thus acquired by him to the vendor. He cannot be permitted to...