McConnell v. Brayner

• Decision Date: 31 October 1876
• Citation: 63 Mo. 461
• Parties: J. R. MCCONNELL, Appellant, v. WM. BRAYNER, et al., Respondents.
• Court: Missouri Supreme Court

63 Mo. 461

J. R. MCCONNELL, Appellant,

v.WM. BRAYNER, et al., Respondents.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Pettis Circuit Court.

Ewing, Smith & Pope, with Montgomery & Felix, for Appellant, cited: 1 Greenl. Ev., § 284 a and note; Lewis vs. Gray, 1 Mass. 297; Lapham vs. Whipple, 8 Met. 59; Rollins vs. Claybrook, 22 Mo. 405; Moss vs. Green., 41 Mo. 389; Barker vs. Bradley, 42 N. Y. 316; 6 Ind. 468; 30 Ind. 438; 15 Mass. 84; 3 Wash. Real Prop. 327; 15 Iowa, 22; 35 Mo. 316; 49 Mo. 212; 26 N. Y. 378; 23 Cal. 475; 21 Cal. 47; 16 Wend. 460; 44 Mo. 120; 34 Mo. 76; 1 Chit. Pl. 75, 76 and 138; Bunce vs. Beck, 43 Mo. 266.

Crandall & Sinnet, for Respondents, cited: Wolf vs. Robinson, 20 Mo. 457; 29 Mo. 307; Bunce adm'r of Beck vs. Beck, Ex'r, 43 Mo. 266 and cas. cit.; Helmrichs vs. Gehrke, 56 Mo. 79; Gooch vs. Conner, 8 Mo. 39; Fauve vs. Martin, 3 Seld. 310; Baxley vs. Stephen, 31 Mo. 201; Martin vs. Divelly, 6 Wend. 9; Higgins vs. Peltzer, 49 Mo. 152; Dewey vs. Carey, 60 Mo. 224.SHERWOOD, Judge, delivered the opinion of the court.

In January, 1870, Frank W. Hickox and plaintiff were the owners as tenants in common of certain blocks of ground in the town of Lamont, and of a tract of land adjacent to such blocks. They conveyed the above mentioned land by a deed in usual form describing the blocks as such and the tract by metes and bounds to the defendant Clarissa Brayner. The consideration expressed in the deed to have been received from the grantee was $1,050, and the description of property conveyed, concludes with the words “containing in all, including said lots, thirty acres more or less.”

The plaintiff claims that the contract of sale was made with the husband of the grantee, Wm. Brayner, and that it was stipulated between the parties that the blocks and tract of ground should be purchased at $35 per acre, they estimating that the whole of the real estate contained thirty acres, and that if upon subsequent survey, it should be ascertained that there were more than that number of acres, then Hickox and plaintiff were to be paid for the excess at the above rate per acre. If, on the other hand, the quantity should be found less than thirty acres, then they were to return to Brayner an amount sufficient to pay for the deficiency at the same rate per acre; that the conveyance, at the request of Brayner, was made to his wife, the money paid, and that upon a survey being made as agreed on, the quantity of land was found to be in excess of what the parties had estimated by 7 74-100 acres. Plaintiff also claims that Brayner thereupon paid to Hickox his share of the excess at the rate per acre agreed on being $135.45, but refused to pay plaintiff for his share a like sum, wherefore he brings his suit.

The answer denied the chief allegation of the petition save that in relation to paying Hickox the above sum. The petition was amended by striking out that portion which sought the enforcement of a vendor's lien. At the trial, after reading the deed in evidence, plaintiff offered to prove that prior to, and at the time of making the deed to Mrs. Brayner, a verbal agreement with respect to the land was made, as before stated, between the grantors in that deed and defendant Wm. Brayner; that the survey agreed on was made and was attended by the result above mentioned, that Brayner paid Hickox his half of the money arising from the excess in quantity of land, but refused to pay plaintiff, and that defendants took possession of the land under the contract thus made.

The introduction of such evidence was successfully resisted by defendants on these grounds:

1st. That the parol contract was void because of the statute of frauds. 2nd. That all prior and cotemporaneous verbal agreements were merged in the deed and could not be introduced to vary or contradict it. 3rd. That the deed being made to a married woman, a verbal agreement cannot be enforced against her; 4th. That the contract was jointly made with Hickox and plaintiff, and both should have joined in the suit. The plaintiff took a non-suit with leave, etc.

I.

The defendants are not in a position to object because Hickox was not joined as party plaintiff. This alleged defect being apparent on the face of the petition, advantage should have been taken of the supposed non-joinder by demurrer (Wagn. Stat., 1015, § 10) failing in this, they must be “deemed to have waived the same.”

In the case cited by defendants (Dewey vs. Carey, 60 Mo. 225,) the point was expressly raised by demurrer, and was of course held well taken. There the suit was instituted by only one of the obligors in an injunction bond, on which no damages had even been assessed, and as there were three obligors to the bond, if a suit by one for damages could be maintained, the same result would follow as to each of the obligees, and thus the obligor be subjected to three suits instead of one. Here the case is essentially different. The petition charges what the answer admits to be true, by failing to deny that Hickox had been fully paid for whatever was due him in consequence of the land exceeding in quantity thirty acres, and the plaintiff also, as above seen, attempted to prove the same thing in reference to Hickox having been thus paid. Under such circumstances, it would have been but an idle and useless ceremony to have joined Hickox as party plaintiff, when the facts alleged show that he had no interest in the suit, and in consequence was not a necessary party thereto.

II.

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