McQueen v. Chouteau's Heirs

• Citation: 20 Mo. 222
• Parties: MCQUEEN, Respondent, v. CHOUTEAU'S HEIRS, Appellants.
• Decision Date: 31 January 1854
• Court: United States State Supreme Court of Missouri

20 Mo. 222

MCQUEEN, Respondent,

v.CHOUTEAU'S HEIRS, Appellants.

Supreme Court of Missouri.

January Term, 1854.

1. Where a bill is filed for the specific performance of a contract to convey land, the court cannot make an order requiring derendants before the court to defend for all parties interested.

2. Under the chancery practice which formerly prevailed, an answer, if responsive to the bill, was to be taken as true, if no replication was filed.

3. Where a tenant disclaims the title of his landlord, and asserts a title in himself, he cannot, when defeated, receive compensation in a court of equity for improvements.

4. A contract to convey to A. a quarter section of land, to be selected by him, cannot be assigned to B. so as to entitle him to make a selection.

5. Where a party files a bill in equity for the specific performance of a contract for the conveyance of land, knowing at the time that it is not in the power of the defendant specifically to perform the contract, the court will not, in ordinary cases, decree to him compensation in damages, but will leave him to his remedy at law for a breach of the contract.

Appeal from Audrain Circuit Court.

This was a bill in equity filed in the Pike Circuit Court in 1844 by McQueen against the heirs of Auguste Choutean, for the specific performance of a contract to convey a quarter section of land.

On the 25th of June, 1829, the administratrix of Auguste Choutean leased to John J. Grimes, for the term of one year, for the annual rent of one dollar, a league square of land granted to said Chouteau by the Spanish government, but then unconfirmed. The league square comprehended four quarter sections, the grant having been disregarded by the United States surveyors. On the same day, the heirs of Choutean entered into an agreement under seal with Grimes, by which, after reciting the lease from the administratrix, it was stipulated that if the title of said heirs shold be confirmed by the United States, they would make to Grimes a good title to one of the quarter sections to be selected by him, he paying therefor at the rate of three dollars per acre, “one-half in cash at the delivery of the deed, and the other half twelve months afterwards.” If the claim of the heirs should not be confirmed, but they should be entitled to a pre-emption right on account of the improvements made and to be made upon the land, then they covenanted to convey to Grimes one-fourth of the land to which they should thus become entitled, at the same rate and upon the same conditions that they should obtain it themselves. Grimes, on his part, covenanted to clear, improve and cultivate enough of each of the four quarter sections to entitle the heirs to a pre-emption right to all of them, in case their claim should not be confirmed. He covenanted not to cut any timber, except, such as he might want for his improvements and the support of his farm. If the heirs should fail to make a good title to Grimes, according to the provisions of the agreement, upon the tender of the money, then they covenanted to pay Grimes for his improvements according to a valuation by three disinterested persons.

Under this lease and agreement, Grimes entered into possession of the land and made improvements. In 1832, he sold his improvements to McQueen, the complainant, and assigned to him all his interest in the agreement. McQueen entered into possession and made further improvements. The league square was subsequently confirmed to the heirs of Chouteau. Partition was made among the heirs, and the legal title to the entire tract vested in Thomas F. Smith, one of the defendants, for the benefit of all the heirs.

The bill, after setting out the facts, averred that both Grimes and the complainant had kept all the covenants in the agreement on their part; that the defendant, Smith, had told the complainant that he was willing to comply with the agreement by conveying one of the quarter sections, and that he had a power of attorney from the other heirs to do so; “that complainant informed Smith that he was ready to take the conveyance and pay down one-half of the consideration money, but that Smith did not offer to make the deed nor exhibit his power to do so.” The complainant, in his bill, made selection of a particular quarter section, and prayed a decree for a specific performance, if it should be found that the defendants could make a good title; if not, he prayed a decree for the value of his improvements and for general relief.

The defendants answered, admitting the agreement, but denying that the complainant had complied with his part of it. They charged that he had committed waste; that Smith, who held the title, had offered to convey to him a quarter section, if he would pay down half the consideration money, but that he had neglected to do so; and that, instead of complying with the agreement and purchasing one of the quarter sections, the complainant had claimed title in himself to the whole of them under a pretended and fraudulent pre-emption right, and in an action of ejectment brought by Smith, had set up said fraudulent title as a bar. They also alleged that there were other heirs of Auguste Chouteau who had not been made parties to the suit.

At the April term, 1848, upon a petition filed by the complainant, setting forth that, by reason of the death of some of the original defendants and the marriage of others, the parties had become so numerous as to render it difficult, if not impossible, to bring them all before the court, an order was made directing the defendants already before the court to defend for the others.

At the April term, 1849, the cause was taken by change of venue to Audrain county. Upon the hearing at the October term, 1852. the complainant read in evidence the lease from the administratrix of Chouteau to Grimes, the agreement between Chouteau's heirs and Grimes, and the assignment thereof to the complainant. He then proved the value of his improvements. It was admitted that the defendants had conveyed away the land before the filing of the bill, so that it was not in their power to make a title to the plaintiff for any portion of it. The defendants gave evidence tending to show that the complainant never had made a tender of any portion of the purchase money. There was evidence tending to show that the complainant had committed waste upon the land, and evidence to the contrary. The defendants read in evidence the record of an ejectment suit brought by Smith against complainant for the four quarter sections, in which he had filed a plea of “not guilty” and in which there was a judgment for the plaintiff.

The defendants asked the court to declare the law to be, that the contract between Grimes and the defendants could not be assigned, and that the complainant could not have a decree unless he proved a tender. These declarations were refused, and the court declared that the contract was assignable in equity, and that no tender was necessary, “if the defendants had shown a determination not to perform the contract, or had deprived themselves of the power of performing it.”

A decree was rendered in favor of the complainant for $1350 as the value of his improvements, and the defendants appealed to this court.

Glover & Richardson, ( with G. Porter,) for appellants.

If the complainant was entitled to a decree, it was either because, at the institution of the suit, the contract set out in the bill was a subsisting one which he had performed on his part, or because it had been rescinded, and the parties, at the time, were mutually entitled to receive back what had been advanced on the faith of it. The decree cannot be sustained on the ground of performance by the complainant, because: 1. No tender of one-half the purchase money is alleged in the bill. The payment or tender of the money was a precedent condition to the acquisition of an...