Rosenberger v. Jones

• Decision Date: 11 December 1893
• Citation: 24 S.W. 203,118 Mo. 559
• Parties: Rosenberger v. Jones et al., Appellants
• Court: Missouri Supreme Court

24 S.W. 203

118 Mo. 559

Rosenberger v. Jones et al., Appellants

Supreme Court of Missouri, First Division

December 11, 1893

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed.

Johnson Smith & Drunert for appellant.

(1) The facts stated in the plaintiff's petition should be clear definite and positive, such as to leave no room or reasonable grounds for hesitancy, in the mind of chancellor, as to his right to recover. Defendant's demurrer should have been sustained. Forrister v. Scoville, 51 Mo. 268. Hagman v. Shaffner, 88 Mo. 24. (2) The purchaser at an execution sale, acquires no greater interest or right in the property sold than had the judgment or execution debtor and in an action by the purchaser for specific performance, a defense good as against the judgment or execution debtor is good as against the purchaser. A defense good against McClure is good against the plaintiff. Burke v. Seely, 46 Mo. 334. Hagman v. Shaffner, 88 Mo. 24. (3) The person purchasing land, with knowledge of a prior contract or agreement on the part or the vendor, is chargeable with all the equities arising therefrom. Hagman v. Shaffner, 88 Mo. 24. (4) The plaintiff purchased with full notice and took subject to prior and existing equities. Hagman v. Shaffner, 88 Mo. 24; Linville v. Savage, 58 Mo. 248, 256. (5) The plaintiff had no better claim than the defendant McClure would have had, in an action for specific performance, against the defendants, Juliet A. and J. L. Jones. Burke v. Seely, 46 Mo. 334. Hagman v. Shaffner, 88 Mo. 24. (6) The chancellor will deny the plaintiff's prayer and dismiss the bill, when the evidence discloses an outstanding equity that would render a decree, as prayed for, ineffectual. The equity of third parties must be considered. Intervening equities when disclosed must be considered. Hagman v. Shaffner, 88 Mo. 24; Brueggeman v. Jergenson, 24 Mo. 87. (7) The court could not inquire into the bona fides of transactions made with persons not parties to the suit. Brueggeman v. Jergenson, 24 Mo. 87. (8) Defendant's demurrer to plaintiff's evidence should have been sustained. The defendant, McClure, had no vendable interest in said premises. Burke v. Seely, 46 Mo. 334; Quell v. Hanlin, 81 Mo. 441; Morgan v. Bouse, 53 Mo. 219; Broadwell v. Yantis, 10 Mo. 398. (9) An equitable chose in action is not a subject of levy and sale under execution. McIlvane v. Smith, 42 Mo. 45. (10) The bill should have been dismissed. The answer of defendants and the equities presented by defendant's were amply sustained by the evidence. Burke v. Seely, 46 Mo. 334. (11) Bills for the specific performance appeal to the conscience and discretion of the court, and it would be altogether against conscience to take this property from defendants and give it to plaintiff upon payment merely of ($ 80.00 and interest) a nominal sum. Burke v. Seely, 46 Mo. 334. (12) There is no equity in the plaintiff's case. There is no charge of fraud, or wrongdoing, by anyone, in any of the transactions pertaining to the sale of the lot, or the loan, or advancement of the $ 250, which was used in the house and improvements, or the advancement of the $ 157 by Godfrey. Burke v. Seely, 46 Mo. 334. (13) A court of equity in adjusting property rights must treat the titles as it finds them to be, whether properly set forth in the pleadings or not. Ames v. Scudder, 11 Mo.App. 168; Ames v. Scudder, 83 Mo. 189. (14) It is a well recognized principle of equity, that a creditor who, in order to preserve his own security, is compelled to pay a prior incumbrance held by another, will be subrogated to the rights of such creditor, to the extent necessary, for his own protection. Reyburn v. Mitchell, 106 Mo. 365, and case cited; Lewis v. Chapman, 59 Mo. 371. (15) One who seeks to enforce an equity, must take it subject to prior equities. The plaintiff took McClure's interest, if he had any, subject to all its infirmities and burdened with all the equities existing and incident to it. Linville v. Savage, 58 Mo. 248. (16) He who seeks equity must come into a court of equity with clean hands. He cannot come tainted with inequity. Cassidy v. Metcalf, 1 Mo.App. 593.

J. D. Barnett for respondent.

(1) The demurrer was properly overruled. The petition states a complete cause of action. It states all the facts to establish the contract and the plaintiff's right to recover. Despain v. Carter, 21 Mo. 331; Charpiot v. Sigerson, 25 Mo. 63; Anderson v. Shockley, 82 Mo. 250; Adair v. Adair, 78 Mo. 633. (2) If a party makes a verbal contract for the purchase of land, and in pursuance of said contract enters into the possession of the same and makes valuable and lasting improvements on the same and pays the purchase money, he is entitled to the specific performance of the contract. In support of this proposition the foregoing authorities apply also. (3) The defendant McClure had a vendible interest in the land. It is immaterial whether it was a legal or equitable interest. Revised Statutes, 1879, secs. 2354, 2730, 2731 and 2767; Eneberg v. Carter, 98 Mo. 647. (4) The judgment lien attached October, 1883, and the land was levied upon before the lien had expired. The levy continued the lien until the writ was executed. Riggs v. Goodrich, 74 Mo. 108. (5) J. L. Jones acted as his mother's, Juliet A. Jones, agent in all her business transactions, and its was not necessary for her to authorize him in writing to contract for the sale of the land in order to bind her. Revised Statutes, 1879, sec. 2513. This section is now amended. Besides, she has ratified the contract throughout.

OPINION

Black, P. J.

The plaintiff brought this suit against Juliet A. Jones and Joseph C. McClure to compel specific performance of a contract for the sale of two lots in the town of Jonesburg. The plaintiff claims the right to specific performance on the following facts: In the spring of 1883, the defendant Juliet A. Jones sold to the defendant McClure the two lots for $ 80 to be paid thereafter. McClure took possession and built a small dwelling house upon them, but failed to pay the purchase price. The plaintiff became the purchaser of the property at a sheriff's sale made in 1887, upon an execution issued on a judgment rendered on the twenty-ninth of October, 1883, against McClure. After his purchase he tendered to Juliet A. Jones the $ 80 and interest and demanded a deed, which she refused to execute, and hence this suit.

From the other evidence it appears Thomas Jones died in the fall of 1882. He left a will whereby he devised this and other property to his wife, Juliet A. Jones. He also left two sons, J. L. Jones and J. T. Jones, who lived with their mother, Juliet. McClure was a relative of the Jones family. J. L. Jones, acting as executor of his father's will and as the agent of his mother, made the before mentioned sale of the lots to McClure. McClure took immediate possession and built the small house on them, and resided therein. He had no means of his own, and, to enable him to pay for the house, J. L. Jones loaned him $ 250, being money belonging to Mrs. Jones. At that time it was understood between McClure and J. L. Jones and Mrs. Jones that a deed should not be made to McClure until he paid the purchase price of the property and also the $ 250. The $ 250 were paid out by J. L. Jones in discharge of lumber and work bills, so that all of it went into the house. McClure was unable to pay for the property or to pay back the money borrowed, and he and J. T. Jones made a trade whereby McClure sold his contract to J. T. Jones, and the latter assumed and agreed to pay both debts. Pursuant to the agreement, McClure vacated the property and turned it over to J. T. Jones, who rented it out to different persons. There is some conflict in the evidence as to the date when McClure left the property, but it is all to the effect that he left and turned over possession to J. T. Jones before the date of the judgment under which the plaintiff claims, that is to say, before the twenty-ninth of October, 1883. The sale by McClure to J. T. Jones was made with the knowledge and approval of Mrs. Jones. The above transactions between McClure and Mrs. Jones and J. L. and J. T. Jones were of an informal character and rested in parol.

Thus matters stood until the seventh of November, 1883, which was after the date of the judgment, when a Mr. Wood presented a bill of $ 157 for lumber used in the house, and threatened to enforce his demand by way of a mechanic's lien. On that day McClure made his note for $ 80, payable to J. L. Jones executor, and to Mrs. Jones, due in twelve months after date, and J. L. Jones, as executor, gave...