Shields v. Bogliolo

• Decision Date: 31 August 1841
• Parties: SHIELDS & HICKERSON v. BOGLIOLO.
• Court: Missouri Supreme Court

7 Mo. 134

SHIELDS & HICKERSON

v.BOGLIOLO.

Supreme Court of Missouri.

August Term, 1841.

HAYDEN, for Appellants. 1st. That upon the proofs in the cause the Chancellor, upon the rescission of the contract, ought to have given complainants interest upon the money paid, down to the time of pronouncing of the decree, from the time it was paid. 2nd. That the decree should have given the costs of the proceedings at law and in chancery to complainants, and that the court erred in overruling the motion for a new hearing as prayed for. See 1 Dana's R. 421, Taylor v. Porter; same book, 478, Johnson v. Tool; same book, 594, Wickliffe v. Clay.

MILLER, for Appellee. The only question presented for the consideration of this court, is whether the complainants, appellants here, should have recovered interest upon the four hundred dollars paid by them at the time of sale, and whether the court should have decreed the costs of the suit at law, and of this suit, against complainants. The counsel for appellee will insist that the Circuit Court very properly overruled motion for new trial, and that there is no error in the decree.

NAPTON, J.

The appellants filed their bill in chancery, praying an injunction against two judgments at law, obtained against them in favor of the appellee. The complainants allege in their bill, that the consideration of the notes upon which judgment had been obtained, was a tract of land containing two hundred arpents, lying in the county of Cooper, and sold to them by defendant for the sum of $1700, in the year 1836. That complainants paid $400 in cash, and executed two notes for $1000, payable in one and two years, and one note for $300, to be paid when satisfactory evidence was presented to complainants or their counsel, that he, Bogliolo, had a good legal title. The defendant, on his part, covenanted that he had full power to convey, and would make a good title upon payment of the last installment. The bill further sets forth, that Bogliolo had instituted suits upon the two notes of complainants and recovered judgment, and caused an execution to be issued; and charges that said defendant, at the time he sold said land to complainants, “well knew that he was not the owner thereof, and had no title thereto; that he had no legal right to sell the same, and that he was not seized of an indefeasible estate in fee simple, or any other estate whatever to the premises, and consequently, the representations of said Bogliolo were false and fraudulent.” The bill further charges that Bogliolo had not, at the time of filing the bill, any legal title, nor had ever shown any evidences of title to complainants, though often requested to do so. The bill further charges, that Bogliolo is involved in debt, and in doubtful circumstances, in consequence of which they fear a loss of both the land and the money. The bill prays the Chancellor to restrain the payment of the purchase money, but prays a specific performance, if defendant can show a good title: but if upon inspection of the title, it is found to be defective, prays a rescission of the contract.

The defendant, in his answer, admits the contract of sale as set forth in the bill, denies all allegations of fraud, avers that he has a good and indefeasible estate in fee simple, and had one, at the time the contract was made. Defendant also denies that he is in failing or doubtful circumstances, on the contrary, that to secure Shields and Hickerson in the four hundred dollars paid, he had deposited with one William Gibson, a bond on two responsible men for $840.

Defendant further avers, that appellants had been in undisturbed possession of the land ever since the making of the contract, and had cut and used considerable timber on the same. Exceptions to the answer were filed by the complamants, and a general replication, and the cause set for hearing at the next term; at which term, by consent of parties, the contract was rescinded and annulled, and the court decreed a rescission, enjoined the judgments at law, ordered all bonds and agreements between the parties to be cancelled, and that complainants should deliver to defendant possession of the land. The court further decreed that defendant should refund the four...