Simonds v. Beauchamp

• Decision Date: 30 April 1826
• Citation: 1 Mo. 589
• Parties: SIMONDS, ADM'R OF BEST. v. BEAUCHAMP
• Court: Missouri Supreme Court

1 Mo. 589

SIMONDS, ADM'R OF BEST.

v.BEAUCHAMP

Supreme Court of Missouri.

April Term, 1826.

APPEAL FROM ST. CHARLES CIRCUIT COURT. ON COVENANTS.

TOMPKINS, J.

Beauchamp commenced this action against Best, in his life time, on a covenant to convey a tract of two hundred and twenty-five acres of land on a day certain. The declaration sets out that Best, by his deed, acknowledged to have sold to the said Beauchamp, the plantation on which he (Best) then resided, containing two hundred and twenty-five arpents of land, for and in consideration of the sum of ten dollars per arpent for the said land, being the sum of two thousand two hundred and fifty dollars. The declaration then avers payment, by Beauchamp, of the purchase money, and that Best, by his said deed, had covenanted to make Beauchamp a good general warranty deed for said land, on or before the first of January, 1820, under penalty of $4,500. The defendant traverses the averment of payment, and for second plea says, that Beauchamp executed to him a deed poll, by which he bound himself to pay to him, Best, the sum of $2,250. This deed poll was of the same date, and became due on the same day with the deed of Best to Beauchamp. Best, in his said plea, sets out, that it was agreed between him and Beauchamp, at the execution of these two instruments, that the title should be made out to the land, as soon as the money should be paid; but this agreement was verbal. The defendant then denies the payment of the money, or any part thereof. The third plea is the same with the second, except that, instead of averring the non-payment of the purchase money, by Beauchamp, he avers he was ready and willing, and offered to make a general warranty deed to said Beauchamp for the said land, but the said Beauchamp would not then, &c., pay the said sum of $2,250.

To each of these pleas there is a general demurrer; and joinder in demurrer, and judgment for the plaintiff. To reverse this judgment, this appeal is taken. The points for this court to decide are, whether the averment of payment was material, and if so, whether the second and third pleas are good pleas in bar.

The deed of Best to Beauchamp states, that he, Best, had sold his land to Beauchamp, for a given sum, and then he covenants to convey, by deed, on a day fixed. This is not like the case stated in Saunders, 320, N. 4, where it is said, if B. covenant to pay A. ten pounds for a year's service, these words make the service a condition precedent. Here Best says he has sold his land, for ten dollars per acre, &c., and covenants to do another thing, at a future day. Now it appears, evidently, that he was to perform this other thing, viz: to convey, by deed, because he had sold. And the presumption is strong, either that he had received his money, or had, by some other means, secured it. The court, then, thinks the averment of payment to Best is immaterial, and that the plea denying that payment, was properly demurred to, and the demurrer well sustained. The second plea seeks to connect the deed poll of Best to Beauchamp, with Beauchamp's deed poll to Best, by covenant, so as to make it necessary for Beauchamp to prove the...