Perry v. Price

• Decision Date: 30 November 1825
• Citation: 1 Mo. 553
• Parties: PERRY v. PRICE.
• Court: Missouri Supreme Court

1 Mo. 553

PERRY

v.PRICE.

Supreme Court of Missouri.

November Term, 1825.

ERROR FROM WASHINGTON CIRCUIT COURT.

MCGIRK, C. J.

This case may be decided and finally disposed of by passing on the deed from Austin to Bryant and Ruggles. The deed was received in evidence, and Price's counsel called on the court to instruct the jury, that the deed was void, for want of a moneyed consideration; because it is a deed of bargain and sale, &c. There must, in such a deed, be a moneyed consideration; for that “for and in consideration that the party has been bound in a recognizance” is not sufficient, which is alleged to be the consideration of this deed. The court so declared the law to be, and instructed the jury, “that nothing passed by the deed.” The deed was offered to prove title in the defendants. The operative words of it are, “that the said Austin, in trust for the payment of $2500, for which sum Bryant and Ruggles have become appearance bail for Moses Austin and Stephen H. Austin, have granted, bargained and sold, aliened, enfeoffed, confirmed, and do, by these presents, grant, bargain, sell, alien, enfeoff and confirm to them and their heirs, &c., forever.” To prove that the deed is void, for want of a moneyed consideration, many cases have been cited. The view which we are disposed to take of this deed, is to see, first, if it can operate as a deed of bargain and sale; and secondly, if it cannot operate as a bargain and sale, then to see if it can operate or enure in any other way--as, for instance, a deed of feoffment.

In considering the first point, we will first take a view of that which is alleged to be the consideration of this deed. The words are, that the said Austin, in trust for the payment of $2500, for which sum Bryant and Ruggles have become appearance bail. This is all that is said about, or looks like a consideration. Here is a clear trust created; and the following words point out the objects of the trust, to wit: that Bryant and Ruggles shall pay $2500 for Austin, in case he is condemned in the action, or, perhaps, it is assumed by the contracting parties that Austin will inevitably be condemned in that sum, and that the land is to be the fund in their own hands to raise and pay that much money. If this view is correct, the words, “in trust,” &c., only create the trust, and point out the object thereof, and do not touch the question of consideration. So, then, the deed stands without considation expressed on the face of it. Yet it may operate as a good bargain and sale. It is, indeed, laid down in many books, that a pecuniary consideration is necessary, but it is doubtful if this is law. But where a deed is silent as to consideration, it is competent to aver a proper consideration and prove it. (See Cruise Dig., vol. 3. 178). But no consideration was proved on the trial. We must take the record as it is, and for want of this, the deed cannot have effect as a bargain and sale. Can it then enure as a deed of feoffment? The exact line of distinction between a bargain and sale and a feoffment, is not readily, in all cases,...