Olney v. Eaton

• Decision Date: 31 October 1877
• Citation: 66 Mo. 563
• Parties: OLNEY v. EATON, et al., Appellants.
• Court: Missouri Supreme Court

66 Mo. 563

OLNEY

v.EATON, et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Atchison Circuit Court.--HON. HENRY S. KELLEY, Judge.

Vinton Pike, for appellants.

1. The decree cannot be sustained upon the evidence. Plaintiff in his form of action affirms the contract, seeks its specific performance, and has failed to clearly make it out. The evidence is clear and positive that the contract was as the defendants plead it, and the petition should have been dismissed. ( Paris v. Haley, 61 Mo. 453.)

2. The court erred in the law of the case. Defendants set up the contract as it was, and relied upon it as their defense. The title to real estate in a foreign jurisdiction was not involved; nor do defendants seek, necessarily, the enforcement of a contract respecting it. Yet this court may indirectly act upon real estate situate in a foreign jurisdiction through the instrumentality of its authority over the person of a party. Story's Conflict of Laws, §§ 543, 544, 545; Story's Eq. Jur., §1291; Story's Eq. Pldg., § 489; 2d Kent. Com., 581 (463) and note b; Frye on Sp. Perf., §§ 60 to 63; Penn v. Lord Baltimore, 1 Vesey (Sr.,) 444, also reported in 3 Lead. Cases in Equity, 664; Massie v. Watts, 6 Cranch 148; Mitchell v. Bunch, 2 Paige 606; The Church v. Wily, 2 Hill Ch. Rep. 584; Guerrant v. Fowler, 1 Hen. & Mun. 5; Bailey v. Ryder, 10 N. Y. 363; D'Ivernois v. Leavitt, 23 Barb. 63; DeKlyn v. Watkins, 3 Sandf. Ch. 185; Lord Portarlington v. Soulby, 3 My. & K. 109; Dickens v. King, 3 J. J. Marsh. 591; Mason v. Chambers, 4 Id. 408; McGregor v. McGregor, 9 Ia. 78, 79, 80; Sturdevant v. Pike, 1 Carter (Ind.) 278; McLean v. Bank, 3 McLean 622; Stansberry v. Fringer, 11 Gill & J. (Md.) 149; Carrol v. Lee, 3 Gill & J. 504; Sutphen v. Fowler, 9 Paige 280; Fickett v. Durham, 109 Mass. 419; Bank v. Poyntz, 60 Mo. 532; Cranstown v. Johnson, 3 Vesey (Jr.) 170.

Henry Flanagan and John P. Lewis for respondent.

1. The clear weight of the testimony shows that the Atchison county sale and the proposed 20 acre trade in Kansas, were to be performed as two independent transactions, and that the $400 balance on Atchison county lands was due September 1, 1871.

2. This is not a case where a court of equity can assume jurisdiction over lands without the State, in order to settle disputes between the parties. I Story, Eq. Juris., § 744 a; N. Ind. R. R. Co. v. Mich. C. R. R. Co., 15 How. (U. S.) 233; 2 Wag. Stat., § 3, p. 1005.

1. EQUITY PRACTICE: vendor's lien: cross-bill: harmless error of trial court.

HENRY, J.

This was a suit in the Atchison circuit court to enforce a vendor's lien for $400, with interest, from the first of September, 1871, against a tract of land in said county, purchased of plaintiff by Joseph C. Eaton, which he afterwards conveyed to his co-defendant, Timothy C. Eaton, who, plaintiff alleged, had notice, when he purchased, that said balance of $400 was then due and unpaid. The consideration for the land was $4,000, of which plaintiff alleged that $3,600 was paid in property and cash, and in the assumption by Joseph C. Eaton of $640, for which the county of Atchison had a lien on the land. Defendants admitted the purchase, but denied that any balance was due from Joseph on the land, alleging that in addition to the sums of money and the lands, and the assumption by defendant of the $640 due Atchison county, plaintiff was to receive in payment of said $4,000, twenty acres of land in the State of Kansas, owned by defendants, at $40 per acre, and that this, with the other payments, was $400 in excess of the consideration for the tract that Joseph purchased of plaintiff; that he had offered to make plaintiff a deed for said twenty acres of land, which plaintiff refused to receive, and again in court tendered to plaintiff a deed, duly executed and acknowledged, conveying to plaintiff said land, and asked the court to decree a specific performance of the contract. Timothy C. Eaton denied that he knew that said amount of $400, or any part of the consideration for the land purchased by Joseph C. Eaton of plaintiff, was unpaid. Plaintiff replied, denying all the material facts stated in defendant's answer, admitting that there was a contract of purchase of the twenty acres, but averring that it was not in writing, and that it had no connection with the sale which he made to defendant of the land in Atchison, and pleading the statute of frauds as a defense to that portion of defendant's answer asking a specific performance of that contract. The evidence on the part of plaintiff, conduced to prove the allegations in his petition and replication, while that for the defendants tended to prove the facts stated in their answer. The court found all the issues for plaintiff, and as plaintiff, who testified to the facts stated in his petition and replication, was corroborated by three disinterested witnesses, and defendants were themselves the only witnesses who testified to the facts stated in their answer, we cannot say that the finding of the court was against the weight of evidence. Appellants' counsel contends that there was no evidence to warrant the finding that Joseph C. Eaton was indebted to plaintiff in the sum of $488. The plaintiff...