Minor v. Edwards

• Decision Date: 31 July 1848
• Citation: 12 Mo. 137
• Parties: MINOR v. EDWARDS & PRICE.
• Court: Missouri Supreme Court

12 Mo. 137

MINOR

v.EDWARDS & PRICE.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO COLE CIRCUIT COURT.

HAYDEN, for Plaintiff.

1st. The court erred in sustaining the demurrer to the first and fourth counts of the plaintiff's declaration at the November term, 1847, of the court. The defendants having pleaded to the merits of those two counts, and issue having been taken upon the pleas of defendant thereto; the pleas not having been withdrawn by defendant, nor issues thereon disposed of. 2nd. The court erred in refusing to instruct the court sitting as a jury to try the cause in manner and form as prayed for in the motion of the plaintiff. 3rd. The court erred in pronouncing and declaring the law to be as the same was declared and pronounced by the court.

STRINGFELLOW, for Defendants. The only issue submitted to the court sitting as a jury was the acceptance of the deed made by Paulsel and others to Edwards by Edwards in discharge of the condition of the bond sued on. The instruction given by the court properly presented this issue. The court might and ought to have declared the evidence insufficient to show such an acceptance. The judgment liens given in evidence by the defendants were competent and relevant, without such evidence; indeed, the plaintiff had shown a strict compliance with the condition of the bond. It was for the defendant to show the incumbrances and thus present the question as to the acceptance of the deed. By the condition of the bond and under the issues in this case, it devolved upon the plaintiff to show a discharge from the performance of the condition. If there had been no incumbrances upon the land, it would only have been necessary to show title in the obligees and the delivery of a deed conveying the title to Edwards. But incumbrances being shown, it became necessary to show more, to show that the deed was made by one party and taken by the other as a specific performance of, or satisfaction of the condition.

NAPTON, J.

This was an action of debt instituted upon a bond for the payment of thirteen hundred and ninety dollars. The consideration of the bond was the sale of certain lots in Jefferson City by the payees to the defendant, Edwards, and it was made payable upon the execution of a deed conveying a clear title in fee simple to these lots. The plaintiff was the assignee of the bond.

The pleadings in the case are fully stated in the former opinion delivered by this court, 10 Mo. R. 671. After the case was remanded to the Circuit Court, a trial was had upon the issues made up in the second and third counts of the declaration. The first and fourth counts were considered by the Circuit Court as out of the case, in consequence of the opinion expressed by this court of their insufficiency. The defendants withdrew the pleas previously filed and put in the general statutory plea.

Upon the trial the plaintiff read the bond and assignment and a deed to Edwards for the lots, and proved by Enos B. Cordell that as an agent of the payees or their attorney, he delivered to Edwards the deed given in evidence, which Edwards received without objection, and without any conversation passing between them on the subject of the deed; that the witness said to Edwards “here is a deed for you,” to which Edwards made no reply. It also appeared from the indorsement on the deed that it was filed in the recorder's office shortly after its delivery. The defendants then proved that there were considerable incumbrances in the shape of judgment liens upon the property at the time of the acceptance of this deed. This evidence was objected to, but admitted. No other evidence was given on either side, whereupon the court declared the law to be as follows:

“The law of this case is, that if the defendant, Edwards, accepted the deed read in evidence, before the commencement of this suit, in discharge of or as a compliance with the proviso in the instrument sued on, the plaintiff is entitled to recover, if the note sued on was assigned to the plaintiff as alleged. But if the said Edwards, although he may have taken such deed into his possession, when handed to him by the witness, Cordell, did not accept the same in discharge of or as a compliance with the said proviso, the defendant is entitled to a verdict, if the fact be, that at the time of the delivery of the deed there were judgment liens on the land, which continued in force up to the trial or commencement of this suit.”

A good many instructions were asked by the plaintiff, some of which were given and some refused; but as the opinion given by the court covered the whole case, or at least contained the views entertained by the court of the proper question to be submitted to the jury, it is unnecessary to copy these instructions at large. The plaintiff took a non-suit, and afterwards moved to set it aside, which being refused, he appealed to this court.

The instruction given by the court leaves the jury to determine upon the facts in evidence, whether there was a waiver on the part of Edwards or not. There is, perhaps, some obscurity in its phraseology, but I understood the court to declare that the defendants were entitled to a verdict if the jury believed that Edwards did not accept the deed from the Paulsels as a compliance with their contract, provided that it also appeared to their satisfaction that there were incumbrances on the land. The proposition of the court, transposing the language a little, may be stated thus. If there were incumbrances upon the land conveyed to Edwards, the deed of the Paulsels (the payees in the bond) did not convey such a title as their bond called for; but if the jury believe that Edwards accepted this deed as a compliance with his contract, the plaintiff must recover. It is obvious that the instruction of the court assumes that whether Edwards accepted the deed as a compliance with his contract, or not, was a question of fact, to be determined by the jury.

What acts or what declarations amount to a...