Schulter's Adm'r v. Bockwinkle's Adm'r

• Court: Missouri Supreme Court
• Writing for the Court: GAMBLE
• Citation: Schulter's Adm'r v. Bockwinkle's Adm'r, 19 Mo. 647 (Mo. 1854)
• Decision Date: 31 March 1854
• Parties: SCHULTER'S ADMINISTRATOR, Plaintiff in Error, v. BOCKWINKLE'S ADMINISTRATOR, Defendant in Error.

19 Mo. 647

SCHULTER'S ADMINISTRATOR, Plaintiff in Error,

v.BOCKWINKLE'S ADMINISTRATOR, Defendant in Error.

Supreme Court of Missouri.

March Term, 1854.

1. The supreme court will not interfere, where a plaintiff voluntarily submits to a non-suit up on the refusal of the court below to strike out an insufficient answer.

2. The statutory proceeding against an administrator to enforce the specific performance of an agreement by his intestate to convey land is permitted only where the contract is in writing In other cases, the proceeding must be under the general law, and all persons having an in terest in the land must be made parties.

Error to St. Louis Circuit Court.

This was a proceeding to enforce the specific performance of an agreement alleged to have been made by the defendant's intestate to convey to the plaintiff's intestate the unexpired term of a lease for ninety-nine years, of a lot in Carondelet common. Accompanying the petitition was a translation of the agreement purporting to have been made between the parties, but not signed by either of them. The petition stated that the plaintiff's intestate took possession of the land, in his lifetime, under the agreement, and that the purchase money was all paid. The answer admitted the taking possession and the payment of the purchase money, but set up that there was no agreement in writing signed by the parties, as required by the statute of frauds, and that the suit should have been brought in the name of the heir and not of the administrator. The defendant claimed the same advantage from the defect of parties, as if he had demurred. The plaintiff moved for judgment on the answer, and his motion being overruled, he submitted to a non-suit and brings the case here by writ of error.

S. A. Holmes, for plaintiff in error.

C. B. Lord, for defendant in error.

GAMBLE, Judge, delivered the opinion of the court.

In this case, the plaintiff, conceiving that the answer of the defendant admitted the material facts stated in the petition, and that he was entitled to a decree, moved for such decree, but the court overruled the motion. The plaintiff then came voluntarily and suffered a non-suit, and having moved to set it aside, brings his case here by writ of error.

1. This court has entertained jurisdiction in cases where the Circuit Courts have, upon the trial of causes, decided questions which covered the plaintiff's case and obliged him to submit to a non-suit. But when parties voluntarily suffer non-suits, we do not interfere. If it was allowed to plaintiffs to take non-suits...