Morris v. Morris

• Decision Date: 31 January 1859
• Parties: MORRIS, Defendant in Error, v. MORRIS, Plaintiff in Error.
• Court: Missouri Supreme Court

28 Mo. 114

MORRIS, Defendant in Error,

v.MORRIS, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1859.

1. Where a cause is properly triable by the court, the parties are not entitled as a matter of course to have issues framed and submitted to a jury. The cases in which it is peculiarly appropriate to direct issues to be submitted to and tried by a jury are those in which single material facts are disputed and the evidence is conflicting.

2. Issues submitted to a jury should be framed in language plain and perspicuous.

3. Instructions given to a jury should contain no comments on the evidence.

4. Resulting trusts are not within the statute of frauds.

Error to Lawrence Circuit Court.

This was an action by Jesse E. Morris against Zachariah Morris, John P. Campbell, L. J. Morrow and W. Morrow. Campbell died and the suit was finally dismissed as to all the defendants except Zachariah Morris. The plaintiff in his petition set forth in substance that one Robert Morrow entered a certain tract of land in the land office; that at the time of the entry by Morrow plaintiff was in possession of said land and had a portion thereof in cultivation and had improvements; that afterwards the plaintiff purchased said land from said Morrow, and was to pay him therefor the money the latter had paid upon its entry, with interest thereon; that plaintiff employed one Asa Smith to accompany said Morrow to the town of Springfield to pay said Morrow the purchase money and get a deed from Morrow to the plaintiff; that he instructed them to apply to John G. Campbell to write the deed and attend to the taking of the acknowledgment; and that he would pay Campbell for his trouble and expenses; that Smith as agent of the plaintiff paid said Morrow the said purchase money; that Morrow agreed to make and deliver a deed to plaintiff and leave the same with Campbell; that Campbell fraudulently inserted his own name in said deed; that Campbell conveyed said land to Zachariah Morris, who took with notice. Plaintiff prayed for a decree of title.

The following issues were submitted to the jury: “1st. Did plaintiff purchase the land in question, and procure John G. Campbell to write the deed, pay the purchase money, and have possession of the land at and before the purchase? 2d. Had the defendant notice that plaintiff had purchased said land from Morrow and procured Campbell to write the deed previous to the defendant's purchase from Campbell? 3d. Had plaintiff possession of the land when Morrow executed the deed to Campbell?” All these issues were found for plaintiff.

Crawford, Edwards & Ewing, for plaintiff in error.

I. Campbell's heirs should have been made parties to the suit, because, if the facts set forth in the bill are true, Zachariah Morris would have a remedy over against them in the event that Jesse Morris succeeded, and they should have been parties. Plaintiff in this bill does not aver that he paid Smith the purchase money to pay to Morrow, nor does he aver that the money paid to Morrow for the land was his money. The facts are not sufficiently stated to take the case out of the statute of frauds. (See Johnson v. Magruder, 15 Mo. ____.) The proper issues were not presented to the jury. Defendant relied upon the statute of frauds as to the alleged purchase of Jesse Morris from Morrow, but such issue was [not] presented to the jury by the court. Every issue presented in the case may be found for the plaintiff and still the plaintiff would not be entitled to recover. The statute of frauds was well pleaded to the action. There is no pretence that the contract between Jesse Morris and Morrow was in writing; and the plaintiff fails to make such a case as will take the case out of the statute of frauds. The court erred in refusing to permit the witness to answer the question put in relation to the general character of A. Z. Smith for truth and veracity. The court erred in giving the instructions asked by the plaintiff. They were not warranted either by the evidence or the law.

SCOTT, Judge, delivered the opinion of the court.

If J. P. Campbell loaned the money to Smith with which he says he paid for the land and took the deed in his own name for his indemnity by an arrangement with Smith, who was the agent of the plaintiff, then it would seem that this action has been misconceived, as the plaintiff could not expect to recover without reimbursing Campbell or those claiming under him. The testimony of Smith as preserved in the record is very unsatisfactory. He does not say who furnished the money which he paid for the land. Whether, by contract with the plaintiff, Smith was to furnish the money for him, or whether the plaintiff himself put the...