Newham v. Kenton

• Decision Date: 31 October 1883
• Citation: 79 Mo. 382
• Parties: NEWHAM v. KENTON, Appellant.
• Court: Missouri Supreme Court

79 Mo. 382

NEWHAM

v.KENTON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

John L. Mirick for appellant.

Hale & Sons for respondents.

PHILIPS, C.

This is a bill in equity. The petition states that plaintiffs are husband and wife; that the wife contracted with the defendant Kenton, to the effect that, as her agent and trustee, he would purchase certain described real estate in the town of Norborne, in Carroll county; that she furnished the money, and the title was to be taken in the name of the defendant, and immediately thereafter he should convey to her; that the money was accordingly furnished, the purchase made by defendant and the title conveyed to him by the vendor. The petition then averred that soon after said purchase the plaintiff, with the consent of defendant, entered into the possession and enjoyment of the premises, and had ever since so held the same, making large and lasting improvements thereon, such as erecting a house, etc., at the outlay of about $1,000. It is averred that the defendant, though often requested thereto, has wholly failed, refused and neglected to make conveyance to the plaintiff Margaret, as he had agreed to do, and as in equity, etc., he was bound to do. The prayer of the petition is for a decree requiring the defendant to execute to her a good and sufficient deed vesting in her the right and title so acquired by defendant, and for proper relief. The answer is a general denial.

The bill of exceptions recites that: “The plaintiffs, to sustain the issues on their part, offered evidence tending to prove the facts set forth in the petition. The defendant, to sustain the issues upon his part, offered evidence to sustain the allegations pleaded in his said answer. This was all the evidence offered.”

Upon this state of the case the court rendered the following decree:

“Now at this day come the parties, by attorneys and in person, and each party being ready for trial on the pleadings, and the court, after hearing the testimony for plaintiffs and defendant, and the argument of counsel, finds the facts to be as follows: That on or about the 17th day of January, 1876, the defendant, under and by virtue of a verbal contract, entered into between him and the plaintiff Margaret P. Newham, purchased of one M. C. Huff and wife the real estate described in the petition for and on account of the plaintiff at and for the sum of $230; that by the contract and agreement between the said M. P. Newham and defendant, the deed to said real estate was made to defendant as trustee for the plaintiff, and that said deed has been duly made and recorded in Carroll county, but that said deed does not express said trust; that shortly after said purchase as aforesaid, a further contract and agreement was made and entered into between plaintiff M. P. Newham and the defendant to this effect: That plaintiff M. P. Newham and the defendant would erect and build a two story frame storehouse, of the kind and character mentioned in the petition, on said lot; that each party was to bear half of the cost of the building and the defendant to pay one half of the purchase money for said lot, and each to be and become equal owners of said house and lot. The plaintiff M. P. Newham, in the summer and fall of 1876, built and erected said storehouse at a cost of $800; that defendant Kenton furnished labor and material for said building to the amount of $100 only; that plaintiff has held and occupied said building from sometime in the fall of 1876 up to the present time; that defendant has failed and refused to carry out said contract either by executing a deed to plaintiff for an undivided half of said lot or by paying his half of the balance of the cost of said building; and that the balance due from defendant to plaintiff M. P. Newham on half the cost of lot and building, after a full settlement of lot and house transaction, is the sum of $339 up to date. It is, therefore, ordered, adjudged and decreed by the court that the said defendant, Thomas Kenton, execute and deliver to plaintiff a good and sufficient deed conveying to said plaintiff, Margaret P. Newham, an undivided one half of said real estate, to-wit: Twenty-five feet off the south end of lots numbered 9, 10, 11 and 12, in block number 16, in the town of Norborne, Carroll county, Missouri, and that, in default of the execution of said deed, all the right and title of the defendant, Thomas Kenton, in and to said undivided one half of said real estate be divested, and vested in plaintiff Margaret P. Newham. And it is further ordered and adjudged that plaintiff, M. P. Newham, have and recover of the defendant, Thomas Kenton, judgment for the sum of $339, together with the costs of this suit, which are taxed at the sum of $____, and that execution issue therefor.”

From this decree, after an ineffectual motion for a new trial and in arrest, the defendant has appealed. The question to be decided is, as to the propriety and right of this decree.

It was ever the rule in equity to set out with particularity and the utmost circumspection as to truth, the facts forming the gravamen of the complaint. The bill being addressed to “the...