Honey v. Honey's Heirs

• Decision Date: 31 October 1853
• Citation: 18 Mo. 466
• Parties: HONEY, Appellant, v. HONEY'S HEIRS, Respondents.
• Court: Missouri Supreme Court

18 Mo. 466

HONEY, Appellant,

v.HONEY'S HEIRS, Respondents.

Supreme Court of Missouri.

October Term, 1853.

1. n application for a review and new trial under the new code, must be made at the term at which the trial took place.

2. Surprise at the trial is no ground of relief in a court of equity upon a bill for a new trial.

Appeal from Jefferson Circuit Court.

This was a petition for the specific execution of a contract to convey land. John W. Honey, in his life-time, sold to E. T. Honey, the appellant, his interest in the real estate of their father (being one-fifth) in part payment of a debt. E. T. Honey entered into possession of the land after the purchase. Before a deed was executed, John W. Honey died, and this proceeding is against his heirs.

At the trial before the court, a witness for the defendants testified that E. T. Honey went into possession of the land as tenant of his father's administrator. The plaintiff claimed that he went into possession of two-fifths in his owu right, and of three-fifths as tenant, but having no witness present to prove the fact, the court dismissed his bill. On the same day, the plaintiff filed his motion for a new trial, on the ground of surprise, which was overruled, and the court immediately adjourned for the term. At the next term, he filed his motion for leave to file a petition for a review, which was accompanied by an affidavit to prove that he was in possession of one-fifth of the land as purchaser, and not as tenant. This motion was overruled, and the plaintiff appealed.

M. Frissell, for appellant.

The plaintiff showed enough to take the case out of the statute of frauds. He proved payment of the consideration and this is found by the court. He offered to prove possession under the purchase in the only way he could, under the circumstances. Payment of the consideration takes a case out of the statute. (Roberts on Frauds, p. 153.) So, also, taking possession under a parol purchase, with other acts which cannot be recalled, so as to place the party in his original situation. (3 Barb. Ch. 407.) The plaintiff had a right to file his petition for a review, under the 4th section of the 30th article of the new practice. The new practice act makes no provision in the nature of a bill of review, according to the old practice in chancery.

Whittelsey, Beal and Pipkin, for respondents.

I. The plaintiff has not properly saved his case, no application for a review having been made until the succeeding term. A bill of review is a new suit, alleging some error at the hearing, or something occurring after the trial, and notice is given to the parties.

II. The plaintiff did not show enough to take the case out of the statute of frauds. He must have shown...