Hook v. Turner

• Citation: 22 Mo. 333
• Parties: HOOK, Plaintiff in Error, v. TURNER, Defendant in Error.
• Decision Date: 31 January 1856
• Court: United States State Supreme Court of Missouri

22 Mo. 333

HOOK, Plaintiff in Error,

v.TURNER, Defendant in Error.

Supreme Court of Missouri.

January Term, 1856.

1. The defendant may rely upon the statute of frauds as a defence to a petition for the specific performance of a parol contract to convey land, although he does not set it up in his answer, but simply denies the contract.

2. A contract in consideration of refraining from bidding at a judicial sale is void.

Error to Calloway Circuit Court.

Petition for the specific performance of a contract to convey a portion of land purchased by the defendant at a sale, alleged in the petition to have been made at the court-house door in the town of Fulton for the purpose of distribution among the heirs of Elijah Dawson, deceased. The petition stated that the plaintiff and defendant both wanted a part of the land to be sold, and that it was agreed between them before the sale, that they would run the land up to a certain price, and that defendant should bid in the land in his own name, and should afterwards convey to the plaintiff the part sought to be recovered in this suit, upon the same terms that he himself obtained it, and that the plaintiff had made a tender of the price agreed upon. The defendant, in his answer, denied the contract, as well as the tender. The trial was by the court without a jury, and the facts found as stated in the opinion of Judge Ryland.

J. F. Jones, for plaintiff in error.

1. The statute of frauds does not operate in cases of either fraud or trust. (16 Mo. 544; 4 Kent, 305-7; 1 Lomax Dig., 200-3; 20 Mo. 84;15 Ves., 50; 6 B. Mon., 106; 2 Sto. Eq., 759; 1 Johns. Ch'y., 149; 1 Vern., 159; 2 Vern., 445; 4 Conn., 568; 1 P. Wms., 771; 1 W. & S., 136; 2 Coms., 821; 3 Gilm., 529; 11 Paige, 431.)

Hardin, for defendant in error.

1. The relief sought is the performance on the part of the defendant in error of a parol agreement for the conveyance of land. It is not claimed by plaintiff that he had possession of, or made improvements on the land under the agreement; nor that there was even part payment of the purchase money; nor that defendant even owned the land when the agreement was made. Beyond these facts courts cannot compel performance, when the defendant by his answer denies the agreement, or, if admitting it, claims protection under the statute of frauds. (Sug. on Vendors, p. 127; 3 A. K. Marsh., 445.) 2. Where no bill of exceptions is preserved, and where the record does not show any exceptions taken by the plaintiff in error to the opinions or decisions of the court, upon motion made by plaintiff, the judgment must be affirmed. (13 Mo. 424.)

RYLAND, Judge, delivered the opinion of the court.

There are two objections to the relief sought by the plaintiff in this action, both fatal to his right of recovery. In the first place, the contract as set forth in the plaintiff's petition is a verbal contract, not reduced to writing; nor is there any memorandum or note thereof in writing, signed by any one; it is a verbal contract respecting the sale of land: at least, it is of and concerning an interest in land. It is clearly within the statute of frauds and perjuries. The defendant denies the alleged contract in his answer. He expressly states that there never was such a contract entered into as set up in the plaintiff's petition, or any contract of any kind for the land aforesaid by and between plaintiff and defendant.

The court that tried the case found the following facts: That “Turner agreed with Hook that if Hook would not bid against him for a tract of land, situated between their farms, he would buy the tract, and divide it between them in a manner agreed upon by them at...