Kinney v. Murray

• Decision Date: 17 December 1902
• Parties: KINNEY, Appellant, v. MURRAY et al
• Court: Missouri Supreme Court

71 S.W. 197

170 Mo. 674

KINNEY, Appellant, v. MURRAY et al

Supreme Court of Missouri

December 17, 1902

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

W. M Williams with Rathbun & Allen and W. D. Tatlow for appellant.

(1) (a) A court of equity, having obtained jurisdiction over the person in an equitable action, will, if the equities require it, compel such person to convey land situated in another State, by a deed executed according to the laws of such State. This right, authority and jurisdiction of a court of equity is now, and has been for a century or more, settled by the consensus of judicial opinion in both England and America. The ground of this jurisdiction is that courts of equity have authority to act upon the person: "aequitas agit in personam." And although the court can not bind or affect the title to the land itself by its decree, yet it can bind the conscience of the party in regard to such land to exactly the same extent as if the land was situated in the territorial jurisdiction of the sovereignty, wherein the court sits. It is the deed of the person, not the decree of the court, that affects the title to the land. Penn v Lord Baltimore, 1 Ves. Sen. 444; Earl of Kildare v Eustace, 1 Vern 419; Arglasse v. Muschamp, 1 Vern 75; Lord Cranstown v. Johnson, 3 Ves. Jr. 170; Ex parte Pollard, 4 Deacon 27; Massie v. Watts, 6 Cranch 148; Phelps v. McDonald, 99 U.S. 298; Mead v. Merritt, 2 Paige 402; Mitchell v Burch, 2 Paige 606; Ward v. Arredonda, 1 Hop. 213; DeKeyn v. Watkins, 2 San. Ch. 185; Khattuck v. Cassidy, 1 Edw. Ch. 152; Sutpen v. Howler, 9 Paige 280; Davis v. Headley, 22 N. J. E. 115; Wood v. Warner, 15 N. J. E. 81; Bullock v. Bullock, 51 N. J. E. 444; McGree v. Sweeney, 84 Cal. 100; Smith v. Davis, 90 Cal. 25; s. c., 27 P. 26; Enos v. Hunter, 4 Gillman (Ill.) 211; Cooley v. Scarlett, 38 Ill. 316; Johnson v. Gibson, 116 Ill. 294; Baker v. Rockabrand, 118 Ill. 365; Cloud v. Greasley, 125 Ill. 319; s. c., 17 N.E. 826; Craft v. Railroad, 166 Ill. 580; s. c., 46 N.E. 1132; Pillow v. King, 90 Tenn. 280; s. c., 16 S.W. 469; Pillow v. King, 55 Ark. 639; Poindexter v. Burwell, 82 Va. 513; 2 Story's Eq. Juris. (13 Ed.), pp. 632 to 636; 1 Perry on Trusts (2 Ed.), secs. 71 and 72; Eaton v. McCall, 86 Me. 346; s. c., 29 A. 1103; Reed v. Reed, 75 Me. 264; Frank v. Peyton, 82 Ky. 151; Olney v. Eaton, 66 Mo. 563; Newton v. Bronson, 13 N.Y. 587; Gardner v. Ogden, 22 N.Y. 332; 3 Pomeroy's Eq Juris. (2 Ed.), sec. 1318. Such decree can only be enforced by the process of the court that rendered it. By the execution of the conveyance as directed, such conveyance is effective in the situs rei, but not the decree. The court rendering the decree can not appoint a commissioner to execute a conveyance for such party, in case of his refusal to do so, and the deed of such a commissioner would not convey the title to such land. Bullock v. Bullock, 51 N. J. E. 444; s. c., 27 A. 435; Lindsley v. O'Reilly, 50 N. J. L. 641; s. c., 15 A. 379; Watts v. Waddle, 6 Pet. 389; Watkins v. Holman, 16 Pet. 25; Freyer v. Meyers, 13 S.W. 1025; Morris v. Hand, 70 Tex. 483; s. c., 8 S.W. 210; Jones v. Jones, 30 N.Y.S. 177; Ross v. Railroad, 53 Ga. 514. (b) The power, and right of a court of equity, having jurisdiction over the person, to regulate and control his conscience, and compel him to convey foreign real estate, is illustrated by another line of authorities, which really involves the identical principle -- that is, a court of equity will enjoin parties from prosecuting an action in another State. In such cases the court does not claim the power to control the foreign court, but only the parties before it. All that is required is for the party to show a clear equity. Wonderly v. Lafayette Co., 150 Mo. 653; Sandage v. Studebaker, 142 Ind. 157; Taeger v. Landsley, 69 Iowa 725; Dehorn v. Foster, 4 Allen 545; Claflin v. Hamlin, 62 How. Pr. 284; Kettle v. Kettle, 8 Daly 74; Snook v. Snetzer, 25 Ohio St. 520; Cole v. Cunningham, 133 U.S. 107; Phelps v. McDonald, 99 U.S. 298; Miller v. Gittings, 37 A. 372; 16 Am. and Eng. Ency. of Law (N. S.), pp. 420-1 and 2; Densmore v. Neresheimer, 32 Hun (N. Y.) 204. In the last case, the court enjoined the prosecution of an action in the court of another State, brought to avoid a decision of the New York court, differing from the rule upon the same subject in that State. (2) Oral contracts exactly like the one pleaded and proven in this case have been repeatedly specifically enforced in equity by the courts of this and other States on the ground there was such part performance as to take them out of the statute of frauds. Sharky v. McDermott, 91 Mo. 647; Healy v. Simpson, 113 Mo. 340; Nowack v. Berger, 133 Mo. 24; Sutton v. Hayden, 62 Mo. 101; Davis v. Hendricks, 99 Mo. 478; Wright v. Tinsley, 30 Mo. 390; Gupton v. Gupton, 47 Mo. 37; Fuchs v. Fuchs, 48 Mo. 23; Teats v. Flanders, 118 Mo. 669; Hall v. Harris, 145 Mo. 621; Hiatt v. Williams, 72 Mo. 214; Alexander v. Alexander, 150 Mo. 579; Carmichael v. Carmichael, 72 Mich. 76; 16 Am. St. Rep. 528; Wright v. Wright (Mich.), 58 N.W. 54; Svenburg v. Fossen (Minn.), 78 N.W. 4; Vandyke v. Veerland, 11 N. J. E. 370; s. c., 12 N. J. E. 142; Davidson v. Davidson, 13 N. J. E. 246; Vantyne v. Vantyne (N. J.), 15 A. 249; Owens v. McNally, 113 Cal. 444; 45 P. 710; Kolfka v. Rosicky (Neb.), 59 N.W. 789; Britton v. Van Cotton, 33 P. 218; Weeks v. Lund, (N. H.), 45 A. 249; Quinn v. Quinn (S. D.), 58 N.W. 808; Burns v. Smith, 21 Mont. 251, 53 P. 742; Gates v. Gates, 54 N.Y.S. 454; Johnson v. Martin, 48 N.Y.S. 102; Godine v. Kidd, 19 N.Y.S. 335; Warren v. Warren, 105 Ill. 568; Brown v. Southerland, 129 U.S. 238; Rhodes v. Rhodes, 3 Sand. 279; Jaffee v. Jacobson, 48 Fed 21; Haines v. Haines, 6 Md. 535; Oakford v. Hackney, 92 F. 39; Slingerham v. Slingerham (Minn.), 39 N.W. 146; 3 Pom. Eq. Juris. (2 Ed.), sec. 1402. (3) (a) It is of course elementary that matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitations, etc., are governed by the law of the place where the suit is brought. Wharton on Con. Law, sec. 764; Dicey on Con. Law, pp. 711 and 714; Westlake on P. I. L., secs. 348, 362, 363 and 364; Pritchard v. Norton, 106 U.S. 127; Ruche v. Buck, 124 Mo. 178; Williams v. Railroad, 123 Mo. 573; Richmond, etc., v. Mitchell, 18 S.E. 290; Johnson v. Railroad, 59 N.W. 66; Helton v. Railroad, 12 So. 277; Musser v. McRea (Minn.), 38 N.W. 103. (b) The Illinois and Virginia statute of frauds, offered in evidence by the defendants, only relate to the remedy or the nature and quality of evidence required to establish such a contract (as the one relied upon by the plaintiff) in those States; and hence, only apply in the States where enacted, and do not have any extraterritorial force or effect. Such is the great weight of authority. Leroux v. Brown, 12 C. B. 801; Bain v. Whitehaven, 3 House of Lords 17; Heaton v. Eldridge (Ohio), 46 N.E. 638; Buhl v. Stephens, 84 F. 922; O'Bear v. Bank (Ga.), 33 L. R. A. 384; Downer v. Cheesebrough, 39 Conn. 39; s. c., 4 Am. Rep. 29; Townsend v. Hargraves, 118 Mass. 325; Hoodley v. N. T. Co., 115 Mass. 304; Williams v. Haynes, 27 Iowa 251; Bird v. Monroe, 66 Me. 340; Des Moines v. L. Ins. Co., 50 P. 210; Hunt v. Jones, 12 R. I. 635; 34 Am. Rep. 634; Galloway v. Combs, 1 Dug. 348; Kingley v. Cousins, 47 Me. 91; Wright v. Jones, 105 Ind. 28; Jones v. Loyd, 117 Ill. 597; 7 N.E. 119; Emery v. Burbank (Mass.), 39 N.E. 1026; Nowack v. Berger, 133 Mo. 38; Cash v. Clark, 61 Mo.App. 636; Moore v. Mount Castle, 61 Mo. 424. Even where the statute declares in so many words that the contract is void, it does not make it so, as it has universally been held that it is only voidable. Cohn v. Broadhead, 71 N.W. 746. (4) (a) Admitting that the Illinois statute of frauds governs in this case, the case is in no different position than if the Missouri statute was the governing statute. If the respondents had simply offered in evidence the Illinois statute of frauds (it being identical with the Missouri statute) the facts pleaded and proven by the plaintiff would take the case out of that statute as readily as out of the Missouri statute; so it is the Illinois decisions, not the statute, upon which respondents rely. If you place the Illinois decisions, offered in evidence by respondent, in juxtaposition with the decisions of this court, you will find that both courts hold: First. That such contracts are valid and binding, and will be specifically enforced against the parties, their heirs, legatees and devisees. Second. That such contracts are within the statute, if not in writing. Third. The equitable rule is that an oral contract affecting an interest in lands may be enforced, notwithstanding the statute of frauds, if it is so far performed, that to permit the other party to repudiate the contract, would itself be a fraud. Wallace v. Rappleye, 103 Ill. 229; Pond v. Sheean, 132 Ill. 312; Dicken v. McKinley, 45 N.E. 134 (Above cases were offered in evidence by them); Martin v. Martin (Ill.), 48 N.E. 924; Winton v. Winton, 53 N.E. 722; Gains v. Kendall, 176 Ill. 228; Keith v. Miller, 51 N.E. 151. (b) The doctrine of "part performance," with reference to the statute of frauds, is an equitable one, originally recognized only by courts of equity. The question is not, has there been part performance; but does the part performance, with its attending circumstances, make such a case that, unless the equitable doctrine of estoppel be applied, and the defendant estopped from relying on the statute, he will be permitted to perpetrate a fraud on the plaintiff? It rests on estoppel and fraud, two of the most ancient grounds of jurisdiction in equity. Green v. Jones, 76 Me. 563; Woodbury v. Gardner, 77 Me. 68; Townsend v....