Paris v. Haley

• Decision Date: 31 October 1875
• Citation: 61 Mo. 453
• Parties: ELI G. PARIS, Respondent, v. GEO. HALEY, Appellant.
• Court: Missouri Supreme Court

61 Mo. 453

ELI G. PARIS, Respondent,

v.GEO. HALEY, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Lawrence County Circuit Court.

J. C. Cravens, for Appellant.

Ewing & Smith, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This action was by a vendor against a vendee, to compel specific performance by the vendee of a parol agreement concerning land.

The plaintiff avers that he has the fee simple title to certain lots which he specifically describes, consisting of six lots in the town of Mount Vernon and one lot adjoining the town particularly described by metes and bounds; that on the 19th day of November, 1864, he verbally sold these lots and land to defendant for the sum of $3,000, for which sum the defendant gave his three notes, all dated on the day of the sale--one payable on the 25th of December following, another payable in twelve months from date, and the third payable in twenty-four months from date. The agreement was, as the petition alleges, that plaintiff was to put defendant in possession of these several pieces of land, some of them in the town having buildings on them, and upon full payment of the notes for the purchase money, was to execute a deed conveying the title. It is alleged that possession was then given which has ever since been retained, and that defendant made two payments on the notes, and that excepting these two payments defendant has failed and refused to pay the purchase money. The plaintiff states his readiness to convey, upon full payment, the lots and land specified. A decree is therefore asked to compel defendant specifically to perform his contract, and to pay the remainder due with interest, and in default thereof that the land and lots be sold to satisfy the debt, or that said contract be rescinded and for naught held, and that your petitioner be placed in the possession of said land and lots and the appurtenances thereof, and for such other relief, &c.

The answer of the defendant admits the execution of the notes for $3,000, and concedes that the property described in the petition was partly the consideration therefor, but avers that the agreement was for the purchase of these lots and a ten-acre lot of wood land adjoining, which is in the answer described by metes and bounds. The answer asserts that the defendant was put in possession of all these lots, including the ten-acre lot, and that he has continued in possession ever since and still is in possession. The answer avers that the purchase money for all these lots was $3,000, for which the notes referred to were given.

The answer then proceeds to enumerate various payments claimed on the notes, and a bill of items for work, and labor, and board, and money loaned and paid, which, in the aggregate, it is claimed, greatly overpaid the purchase money, and a judgment is asked for this overplus, and a decree divesting the plaintiff's title to the lots claimed to have been sold by plaintiff to defendant, as stated in the answer.

A replication was duly filed, putting in issue these defences.

The following, among other issues, was submitted to a jury: “whether part of the consideration, for which the notes sued on were given, was ten acres of land off from the west half of the northeast quarter of section 31, township 28, range 26,” which was the lot asserted in defendant's answer to have been sold along with the others.

Other issues were submitted to the jury in regard to payments alleged on one side and denied on the other, and in regard to the state of accounts between the parties. As our determination is entirely independent of these questions, it is unnecessary to state them particularly, or the evidence which was given in respect to these issues in support of one side or the other.

The verdict of the jury on the issues is not stated in the record, but we may infer from the decree that it was for the plaintiff.

The decree recites that, a motion to set aside the verdict of the jury having been disregarded, it is ordered and decreed by the court, upon the finding of the jury and the evidence, that the ten acres of land mentioned in defendant's answer, (describing it), was not embraced in the contract made between plaintiff and defendant. The decree then proceeds to state the credits on the notes, which the court allows, and that the consideration of the notes was the property as stated by the plaintiff and not as stated by defendant; that defendant was placed in possession; that there remained due on the notes $2,203.17. It was therefore ordered, adjudged and decreed that the plaintiff recover of defendant the said sum; and further, that upon the payment of the sum found due by defendant, the plaintiff execute a deed, &c., for the land so sold, and in default of such conveyance that the plaintiff be divested of all title to the same, and the same be vested in defendant. It was further decreed, that upon the defendant's failure to pay said sum and costs within sixty days from the date of the decree, the said lands, or a sufficient amount thereof to satisfy this judgment, be sold; that the proceeds of the sale be applied as follows: first, that the plaintiff's costs be paid, and second, this judgment, and third defendant's costs, and the residue, if any, to defendant; and if the property is insufficient to pay this, then to be levied of any other goods and chattels, lands and tenements of defendant.

The bill of exceptions contains a great deal of testimony relative to the state of accounts between the parties, which need not be recited. The only direct testimony in regard to the land sold was given by the plaintiff, and the defendant stated in his examination, as he stated in his answer, that the sale included the ten-acre wood lot adjoining the grass lot, both of which were outside of the town of Mount Vernon, but immediately adjoining it, and that he took possession of the wood lot as well as the other lots. Two witnesses stated that the defendant employed them, after the date of this purchase, to cut wood in the ten-acre lot, and they and others cut wood and poles during the winter and hauled them for Haley, the defendant. Another witness for defendant (Hendricks) stated that he was called on to draw up the notes for the purchase money of some real estate. Something was said about the plaintiff giving a title bond, and all this witness knew about the real estate was, that he understood from both parties “that defendant was buying the plaintiff out.”

The plaintiff, on his examination, stated positively that the ten acres was not included in the purchase; “that Hendricks drew up the notes, and that was the wind-up of the matter so far as that ‘deal’ was concerned.”

A witness for the plaintiff who admitted himself to be on bad terms with the defendant, stated that Haley told him whilst working on his barn that “the ten-acre tract east of the blue grass lot he could have got from Eli Paris if he had only thought of it.”

This is all the evidence in the record on the subject.

It appears to be well established that a vendor may maintain a suit for a specific performance in all cases where the vendee can sue for a specific performance--that the remedy is mutual, upon the doctrine of courts of equity, that the vendor is a trustee for the purchaser as to the land, and the vendee a trustee for the vendor as to the purchase money. Suits of this kind by a vendor are, however, not frequent, especially where notes for the purchase money have been given, and where the remedy at law would seem to be complete, except so far as the...