Rose v. Perkins

• Decision Date: 20 May 1889
• Citation: 11 S.W. 622,98 Mo. 253
• Parties: Rose et al., Appellants, v. Perkins
• Court: Missouri Supreme Court

11 S.W. 622

98 Mo. 253

Rose et al., Appellants, v. Perkins

Supreme Court of Missouri

May 20, 1889

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Reversed and remanded.

Massey & McAfee for appellants.

By the answer and replication, this suit was converted into an equitable proceeding for the specific performance of a contract for the conveyance of the real estate in controversy. Green-Myers Mo. Pleading and Practice, sec. 153. If the defendant asks for the enforcement of the title-bond contract, he must tender performance on his part. Delassus v. Poston, 19 Mo. 425; O'Fallon v Kennedy, 45 Mo. 129; Deichmann v. Deichmann, 49 Mo. 109. If of the verbal contract alleged, that contract must be established by competent proof, be clear, definite and unequivocal in its terms, and must have been fully performed on part of defendant or performance tendered. Underwood v. Underwood, 48 Mo. 527; Paris v Haley, 61 Mo. 454; Waterman on Specific Performance sec. 291; Sitton v. Shipp, 66 Mo. 297; Louthan v. Stillwell, 73 Mo. 493; Shropshire v. Brown, 45 Ga. 175. The alleged verbal contract is within the statute of frauds and defendant has shown no such performance on his part, complete or partial, as demands the interference of equity in his behalf. Same authorities, and Waterman on Specific Performance, sections 262, 268, 269 and 270. The court can enforce only the contract proven to have been made, none other. Waterman on Specific Performance, secs. 389 and 390. Whiteaker v. Vanschoiack, 5 Ore. 113; Riesz's Appeal, 73 Penn. Stat. 485.

Price & Kersey for respondent.

Brace, J. Sherwood, J., absent, and Barclay, J., concurs in the result.

OPINION

Brace, J.

This was an action of ejectment for forty acres of land in Greene county, commenced April 7, 1884, by plaintiffs, the widow and heirs-at-law of Reuben A. M. Rose, deceased. The defendant died after the case was appealed and his heirs and representatives have been made parties defendant. The petition was in the usual form. The defendant in his answer denied none of the allegations of the petition, but, in substance, set up the following facts: That in the year 1871, he and one Dollison being indebted in the sum of $ 1766, each severally conveyed their lands to Reuben A. M. Rose, the ancestor of the plaintiffs, by deeds absolute on their face, upon an agreement, however, that said Rose was to pay off said indebtedness and said deeds were to operate only as a mortgage to secure him; that the land sued for was the land conveyed by defendant; that said Rose, having paid said indebtedness, possession thereof was delivered to him; that afterwards, on the thirteenth of February, 1875, the deceased executed and delivered to defendant and Dollison a written obligation in which he bound himself in the sum of seventeen hundred and sixteen dollars, upon the payment of that sum according to the tenor of their notes, to make them a deed to the lands therein described, which description included the land in suit; that in the beginning of the year 1880, it was agreed between defendant and said Rose, that the amount of defendant's indebtedness to him on account of the transaction aforesaid was three hundred dollars and he should pay that amount in discharge thereof, at such time as he could conveniently do so; that thereupon defendant, by the consent of said Rose, took possession of the land under said agreement and now holds the same by reason thereof; that shortly after said agreement was made, he paid said Rose fifty dollars, and was preparing to pay him the remainder of said three hundred dollars when he died. And prayed the court to make such orders in the premises in reference to the payment of the balance due said Rose at his death as to the court shall seem just, and that title be decreed to defendant upon such payment.

All the facts set up in the answer were denied in the reply. The case was tried before the court, and a decree rendered "that all the right, title and interest in said land in said R. A. M. Rose at the time of his death be vested in said Perkins from and after the death of said R. A. M. Rose, deceased. And it is further ordered, adjudged and decreed that said plaintiffs, as such heirs and widow of said R. A. M. Rose, deceased, have and recover of and from said defendant two hundred and fifty dollars, balance of such purchase price of said land and the further sum of ninety-seven and seventy-five hundredths dollars interest thereon, and that the same be charged on said land, and that plaintiffs have execution therefor and costs of suit, and also that this judgment bear ten per cent. interest till paid."

The obligation filed with the answer contains no description of the notes therein referred to. It appears from the evidence introduced by the defendant in support of this answer, that in October, 1879, Rose sold the land described in the obligation, other than the land in controversy, being the land conveyed to him by Dollison, for sixteen hundred dollars; that he died on the twelfth of March, 1881, at a place called The Mill; that at that time no one was living on the premises in controversy; that Perkins was then a tenant of Rose, and living at his home place; that in the following May, Rose's widow moved to the home place, and Perkins moved to the premises in controversy, on which, prior to the fall of 1880, a man by the name of Clark had been living as the tenant of Rose. There was no evidence to warrant a finding that the...