Ray v. Bowles

• Decision Date: 31 October 1884
• Citation: 83 Mo. 166
• Parties: RAY et al., Appellants, v. BOWLES et al.
• Court: Missouri Supreme Court

83 Mo. 166

RAY et al., Appellants,

v.BOWLES et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Marion Circuit Court.--HON. THEO. BRACE, Judge.

AFFIRMED.

Thomas H. Bacon for appellant.

(1) The letter of Foster Ray in evidence is the only new matter pleaded. By it respondents' case must abide. They cannot sustain the defence by evidence alien to the issue. Kuhn v. Weil, 73 Mo. 213; Clement v. Yeates, 69 Mo. 623; Weil v. Posten, 77 Mo. 284. (2) The answer set forth an absolute independent written agreement and defendants could not graft a verbal one on it. Henning v. United States, etc., 47 Mo. 425; Stix v. Matthews, 75 Mo. 96. Having claimed a written proposition defendants were bound to prove it. Hook v. Turner, 22 Mo. 233. (3) The oral testimony did not claim any other contract than that expressed in the letter. It simply showed the witnesses' mistaken construction of the letter. State v. Lefaivre, 53 Mo. 470; Willi v. Dryden, 52 Mo. 319. (4) The answer converted the case into an equitable proceeding. Hodges v. Black, 76 Mo. 537; Freeman v. Wilkerson, 50 Mo. 553. (5) The court erred in refusing appellants' declaration of law as to the question of limitation. (6) The oral testimony even if pleaded would not have constituted a defence. Ellis v. Pacific R. R., 51 Mo. 200.

No brief for respondent.

EWING, C.

This was a suit in ejectment to recover the possession of the southwest quarter of section 26, township 58, range 5, west. The petition was in the usual form.

The answer is as follows: The defendants, Robert M. Bowles and John L. Bowles, for their amended and separate answer to the plaintiffs' amended petition, herein state: 1st. That on the 1st day of April, 1858, one Foster Ray, who was the ancestor of the plaintiffs herein, and under whom they claim title to the lands in the petition named and described, claimed to be the owner of said lands (with others by him held under the same title). Said last named day the said Foster Ray, at the county of Marion, in the town of Lebanon and state of Kentucky, made to one Thomas T. Phillips, by the name Thomas Phillips, then in the county of Marion, in the state of Missouri, his proposition or offer in writing of that date, and now here to the court shown, by the terms of which he, the said Foster Ray, proposed and offered to sell to the said Thomas T. Phillips, by the name of Thomas Phillips, aforesaid, the said lands in the plaintiff's petition named (with said other lands before mentioned), for the price or consideration of three hundred dollars, and a certain amount of interest thereon from the _______ day of _______________, 18--, to be by him, the said Phillips, paid to him, said Ray, within a reasonable time thereafter, and did further propose and offer to him, the said Phillips to execute and deliver to him, said Phillips, a deed of quit-claim for said lands on the payment of the said sum of money hereinbefore named, by the said Phillips, to him, said Ray.

That afterwards, to-wit: On the ______ day of _______, 1858, the said Foster Ray, and the said Thomas Phillips, otherwise called Thomas T. Phillips, came together in person at said county of Marion, in the state of Missouri, and the said Phillips then and there assented to and accepted said proposition or offer so made, as aforesaid, by said Ray, to him said Phillips, as hereinbefore recited, and did then and there pay to him, the said Foster Ray, the said sum of three hundred dollars, and the interest thereon from the _______ day of _____________, 18--, making in the aggregate the sum of___________ dollars, and the said Foster Ray then and there accepted and received the said sum of money in full payment for and consideration of said lands under and according to the terms and stipulations of the said proposition and offer in writing aforesaid.

That afterwards to-wit: On the ______ day of ______, 1858, the said Foster Ray left the state of Missouri for his home in said state of Kentucky without having executed and delivered to said Phillips his said quit-claim deed for said lands or any of them, as by the terms of his said offer or proposition, he had agreed to do, and afterwards, on the _______ day of ___________, 186--, departed this life at said state of Kentucky without ever having executed and delivered to said Phillips said deed of quit-claim or any other conveyance for said lands or any of them.

That afterwards, to-wit: On the 30th day of September, 1869, and on the 14th day of October, 1867, the said Phillips, by his certain deeds of the days aforesaid, conveyed the said lands in this his answer named and described to those defendants, and those under whom they claimed for a valuable consideration, and delivered him the possession thereof, and he has since said date continued to hold, occupy and possess the same as his property.

A jury being waived, the plaintiffs, to maintain the issues in their behalf then introduced and read in evidence various conveyances; but as the case does not turn on the plaintiffs' title, but solely on the equitable defence set up in the answer, it is not...