Irwin v. Chiles

• Citation: 28 Mo. 576
• Parties: IRWIN et al., Plaintiffs in Error, v. CHILES, Defendant in Error.
• Decision Date: 31 July 1859
• Court: United States State Supreme Court of Missouri

28 Mo. 576

IRWIN et al., Plaintiffs in Error,

v.CHILES, Defendant in Error.

Supreme Court of Missouri.

July Term, 1859.

1. A defendant can not introduce evidence to support a defence not set up in his answer. If the evidence discloses a defence not set up in the answer, the court may, in furtherance of justice, and on such terms as may be fit, allow the defendant to amend his pleading so as to make it conform to the facts in proof, provided the amendment does not substantially change the defence.

Error to Clay Circuit Court.

The facts sufficiently appear in the opinion of the court.

Ryland & Son, for plaintiffs in error.

Hovey and Sheley, for defendant in error.

RICHARDSON, Judge, delivered the opinion of the court.

This suit was commenced under the act of 1849, and having been tried without a jury, it was necessary that the court should find the facts on which its judgment was founded.

The plaintiff had recovered a judgment against Christopher L. Chiles in his lifetime, and the object of this suit was to subject to the payment of his judgment a tract of land which it is alleged in the petition was purchased by said Christopher of Henry T. Chiles. It is also alleged that said Christopher paid his own money for the land, amounting to three thousand dollars, but, for the purpose of cheating his creditors, and especially for the purpose of defeating the plaintiff in the collection of his demand, which accrued before that time, caused the conveyance to be made to his son, Richard B. Chiles, the defendant, who was at that time a minor. The defendant, in his answer, claimed the land as his own, alleging that he had purchased it of Henry T. Chiles. He denied that his father “purchased or contracted for the land either directly or indirectly, or that the land was paid for with the money of Christopher L. Chiles, or purchased for his use either directly or indirectly.” He further averred that being under age he advised with his father about the purchase, who was present a part of the time the negotiation was going on, but denied that the purchase was made with his father's money or that his father gave him the money or any part of it; that having been to California, he had by his own exertions made the money which paid for the land. The court found “that in the winter of 1849 and 1850, in the state of California, Henry T. Chiles sold to Christopher L. Chiles the above described land for the sum of three thousand dollars cash, and, upon payment of the purchase money, said Henry...