School District Number One v. Holt
| Decision Date | 15 March 1910 |
| Citation | 126 S.W. 462,226 Mo. 406 |
| Parties | SCHOOL DISTRICT NUMBER ONE, Appellant, v. ANDREW J. HOLT |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. William C. Ellison Judge.
Reversed and remanded (with directions).
Anthony & Ford for appellant.
(1) The contract is fully performed and is therefore taken out of the statute. Farrar v. Patton, 20 Mo. 81; Bless v Jenkins, 129 Mo. 647. (2) The district took possession of the site sued for, and this possession was taken in pursuance of the contract sued on. School District v Holmes, 53 Mo.App. 487. Taking possession is sufficient part-performance. Young v. Montgomery, 28 Mo. 604. (3) The old site could not be abandoned until a new one was acquired. R. S. 1899, sec. 9852. (4) The board could not change the site. Siebert v. Botts, 57 Mo. 430. (5) The court erred in dismissing plaintiff's bill. Some relief should have been granted. McDaniel v. Lee, 37 Mo. 207; Savings Institution v. Collonius, 63 Mo. 295.
L. C. Cook for respondent.
(1) The agreement sought to be enforced was for the sale of land. It was not in writing, and no memorandum thereof was ever signed by Holt, the person to be charged therewith, or by any other person for him. It is, therefore, clearly within the Statute of Frauds. R. S. 1899, sec. 3418. (2) Plaintiff district has no record of the agreement, and it is conceded that whatever agreement was made, was between the individual members of the board and the defendant. A school district is a quasi corporation, and the powers of its directors are limited by statute. Buchanan v. School Dist., 25 Mo.App. 85. The procedure necessary to change a schoolhouse site, is fixed by statute, and is vested in the annual meeting, after certain things, mentioned in the statute, are done. R. S. 1899, sec. 9755. It is thus clearly seen that the board of directors had no power to make the agreement, even in a board meeting. How then can it be said that the individual members, acting separately, had such authority? It is not contended that the matter was ever discussed at a meeting of the board, or that a meeting was ever held. State ex rel. v. Lockett, 54 Mo.App. 202. (3) There was no legal proof of any agreement, for the "action of a school board can only be shown by the record which the statute requires the clerk to keep." (4) The agreement, even though made, was without consideration. (5) There is not a word of testimony in this record, of a single act or deed, on the part of any party, even squinting at any attempted performance.
This is a suit to enforce specific performance of a verbal contract between plaintiff and defendant for the purchase by plaintiff of a schoolhouse site, the consideration to be the conveyance to the defendant of the old schoolhouse site of said school district.
In its petition plaintiff alleges that in December, 1857, Solomon Schell conveyed to Nodaway county, Missouri, certain land to be held in trust by said county for the use and benefit of the plaintiff district, which land was described in the deed of conveyance as follows: Beginning at a point twenty rods north, and nineteen rods east, of the southwest corner of section 5, township 64, range 36, Nodaway county, Missouri, and running north sixteen rods; thence east ten rods; thence south sixteen rods; thence west ten rods, to the point of beginning, and containing one acre. That this land was occupied by plaintiff from 1857 to 1899, and used as a school site. That it was agreed by and between plaintiff and defendant that plaintiff's buildings should be removed to another site which defendant was to convey to plaintiff, and in consideration whereof plaintiff was to convey to defendant the land described above. That in 1899, in accordance with said agreement, plaintiff removed its schoolhouse and other buildings from the land formerly occupied by it, and erected new buildings on what was supposed to be the land which defendant had agreed to convey to plaintiff, but that it was afterwards discovered that, by mistake, said schoolhouse was not located on the land intended. That defendant offered, and plaintiff, at its annual meeting, held on the 5th day of April, 1904, accepted -- more than two-thirds voting therefor -- a proposition which, in substance, was as follows: Plaintiff agreed to convey to defendant the land held by the county for its use and benefit, and which is described above, and in consideration thereof defendant agreed to convey to plaintiff the land on which its schoolhouse is situated, and which it has occupied since the year 1899, and is still occupying, and which is described as follows, to-wit: "Beginning at a point seventeen rods north, and twenty feet east, of the southwest corner of section 5, township 64, range 36, Nodaway county, and running thence east ten rods; thence north sixteen rods; thence west ten rods; thence south sixteen rods, to the point of beginning, and containing one acre."
The petition then alleges that the land formerly owned and occupied by plaintiff is now in possession of the defendant, and that plaintiff has tendered and still tenders him a deed for the same. It further alleges that plaintiff has fully performed its part of said agreement, and that defendant refuses to comply with his part thereof. Plaintiff prays for judgment compelling the defendant to convey to plaintiff the land last described, and, upon his failing to execute said conveyance, that he be divested of all right, title and interest in and to the same, and that plaintiff be vested of the title thereto, and for all further and proper relief.
Defendant, in his answer to the petition, admits that, in the year 1899, he and plaintiff entered into a verbal contract, but avers that by the terms of said contract plaintiff was to convey to him the school site described in the petition, consisting of one acre, then occupied by it and that in consideration therefor he, the defendant, was to convey to plaintiff "one" acre of land in the southwest corner of said section 5, the same to be owned and used by plaintiff as a school site. Defendant further avers that the terms and conditions of the contract between him and the plaintiff have been fully performed by both except as to the delivery of deeds; that plaintiff removed its school building from said original site to the site so acquired, and that defendant took possession of the said original site; that he has at all times been ready and willing to give plaintiff a warranty deed for said acre of land in the southwest corner of section 5, and that he tendered such deed to plaintiff before suit, but that plaintiff refused to accept the same, and that he now tenders the same in court. Further answering, he denies that he ever at any time offered to plaintiff the proposition set forth in the petition, and says that "the agreement, even if made as recited in plaintiff's petition, is within the Statute of Frauds, and void."
The main facts, as developed at the trial, are as follows:
In 1899, the plaintiff school district was the owner, and in possession, of a certain acre of land situated about twenty rods north of the south line, and nineteen rods east of the west line, of section 5, township 64, range 36, in Nodaway county, Missouri, and had a schoolhouse and other necessary buildings thereon, and was using the same for school purposes. Said acre was, in 1857, conveyed by one Solomon Schell to Nodaway county for the use and benefit of the plaintiff school district, the same to be used as a school site. The defendant, Holt, was the owner of the lands surrounding said school site, so that ingress into and egress from the schoolhouse was had by passing over his land. In the spring of 1899 it was determined by plaintiff's board of directors and the defendant that it would be advantageous to both parties to exchange said school site for one at the southwest corner of said section 5, bordered by two roads one running north and south, and the other east and west. According to the testimony of two of plaintiff's directors, the new site agreed upon, to contain one acre, "was to be ten rods wide, east and west, by sixteen rods long, north and south, exclusive of the road." The agreement was verbal, and no record was ever made of same. The proposition was submitted to the district, at its annual meeting held April 4, 1899, a record of the minutes of which was introduced in evidence. It contained the following entries: At the same meeting, as shown by the minutes, the defendant was elected a member of the board of directors and he was subsequently chosen president of the board. Thereafter, the defendant and other members of the board measured off an acre of ground, for the new site, beginning at or near the southwest corner of said section 5, and set stakes a rod or so south of the north line of said acre to designate the exact place where the new schoolhouse was to be erected. Mr. Holt was afterwards selected by the board to superintend the work of erecting the new schoolhouse and other necessary buildings, and he did superintend the work, and pointed out to the workmen the spot where the schoolhouse was to be located. The buildings were erected, and Holt was asked to execute a deed to the acre in exchange for a deed to the old school site. His answer was, "When I get ready I will make a deed, and not before." Several times thereafter he was called upon by members of the board to make out a deed to the property, but always refused, usually giving some contemptuous answer. In 1903 he was...
To continue reading
Request your trial