Smith v. Busby

• Citation: 15 Mo. 388
• Parties: SMITH v. BUSBY.
• Decision Date: 31 January 1852
• Court: United States State Supreme Court of Missouri

15 Mo. 388

SMITH

v.BUSBY.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO CLINTON CIRCUIT COURT.

LOAN & VORIES, for Plaintiff. 1. The Circuit Court erred upon the trial of the cause, as well in the rejection of evidence offered by the plaintiff, as in permitting the defendant to give to the jury irrelevant, illegal and incompetent evidence, though objected to by the plaintiff. The evidence offered by the plaintiff, which was excluded by the court, would have shown that the contract or covenant, set up by the defendant, as a bar to the action, and the promise to pay the money by the defendant, as is specified in the note sued on, were independent covenants and promises, and that the covenant on the part of Townsend, to convey the land named in the bond read in evidence, was not to have been performed until long after the payment of the money in the notes sued on, and not until long after the commencement of this suit, the non-performance of which could not therefore be relied upon as a defense to the present action. 5 Mo. R. 395; Cook v. Johnson, 3 Mo. R. 239; 1 Mo. R. 420; Freeland v. Mitchell, 8 Mo. R. 487; Lucas v. Clements, 7 Mo. R. 367. The rule is well settled, that where mutual covenants go only to a part of the entire consideration, and a breach of that part may be paid for in damages, the defendants shall not set it up as a condition precedent. Bennett v. Ex'r of Pixtley, 7 Johns. R. 249; 1 Saunders' R. 320; 15 Pick. 546; Garley v. Price, 16 Johns. R. 268; 20 Johns. R. 15; 10 Johns. R. 203. 2. The court erred in refusing to give the jury legal and proper instructions as prayed for by plaintiff, and in giving the jury illegal and erroneous instructions which were objected to by plaintiff. 3. The court erred in refusing to set aside the non-suit taken in the cause, and in refusing to grant plaintiff a new trial upon his motion therefor.

S. L. LEONARD, for Defendant. The only question involved in this case is the failure of the consideration of the note sued upon. The defense is not changed by the assignment of the note. See §§ 4 and 5, act concerning Bonds and Notes, Rev. Stat., 191; Adm'r of Barton v. Rector, 7 Mo. R. 524. Townsend executed to defendant a bond, binding himself to make to defendant “a good and sufficient warrantee deed” to the northeast quarter section 33, township 57, range 35, on the payment of $875, “in three notes,” of which the note sued upon is one. The making “a good and sufficient warrantee deed,” by Townsend to Busby for said land, being the consideration of the note, the question is, did he make it? No, he did not. Could he make it? No, he could not. Then the consideration failed and the plaintiff is not entitled to recover, and the judgment being for the right party, the court will affirm the judgment below. Art. 7, Practice at Law, Rev. Stat., p. 832, §§ 19, 20, 21; Act to regulate Injunctions, approved March 27, 1845, Rev. Stat., 582. It may be said for plaintiff that the terms “a good and sufficient warrantee deed” relate to the form of the instrument, and that Townsend was competent to make such a form, notwithstanding he had no title and conveyed none. A good deed which passes nothing. A sufficient deed which passes nothing. A warrantee deed which passes nothing and is worthless. But these terms have received a judicial construction and mean an operative conveyance. Barton's Adm'r v. Rector, 7 Mo. R. 524. But the plaintiff may say the covenants in the bond and the payment of the note are independent of each other. But whether they are called independent, dependent or by whatever name they are called is immaterial. Call them by any name devised, still the consideration of the note was the making of “a good and sufficient warrantee deed” by Townsend to Busby, and this he did not do and could not do, and therefore the consideration failed and the plaintiff cannot recover. But the covenants of the bond and the payment of the notes are not independent. It is not to be denied there are conflicting decisions and subtle distinctions made upon this subject. The bond shows that upon payment of the notes the deed was to be made. They are concurrent then, and neither could maintain an action without an offer to perform on his part. Parker v. Parmele, 20 Johns. 130; Johnson v. Wyzant, 11 Wend. 48. But we are told there is a penalty in the bond, and, therefore, the payment of the note is independent; and, in the absence of authority, Judge NAPTON so decided in 8 Mo. R., but this decision was not well considered. Jones v. Gardiner, 10 Johns. 266; Adams v. Williams, 2 Watts & Serg. 227. Although the law may once have been different, yet now a penalty is a mere nullity. It adds nothing to and takes nothing from a bond, save, in some instances, it may limit the amount of recovery. The remedies on a bond are identical, whether a penalty is in or out. Penalties are only used in following old forms, which in this particular have lost their vitality. But whatever the covenants may be, and penalty or no penalty, the question is not changed as to what was the consideration of this note, and that having failed, the law is with the defendant.

SCOTT, J.

This was a petition in debt in attachment, begun by Smith, assignee of John Townsend, against Milton Busby on a note executed by Busby for $337 50 payable 15th May, 1847, and dated May 20th, 1845. Plea the general issue. On the trial, after proving the assignment, the plaintiff read the note in evidence, after which the defendant proved that the note sued on was given as part purchase-money for two tracts of land of 160 acres each. At the time of giving the note, a certificate of pre-emption was passed to Busby for one quarter section and a bond executed by Townsend, the assignor of the note in suit. The note sued on was of those mentioned in the bond which was identified by the witness. The bond was then read in evidence, from which it appeared that Townsend bound himself in the penalty of $1,800 to Busby, conditioned to make Busby a warranty deed to the northeast quarter of section 33, in township 57, range 35, on the payment of eight hundred and seventy-five dollars, in three notes bearing even date with the bond. The bond was dated May 20, 1845. The defendant then read a patent for the above tract of land, issued by the State of Missouri to S. L. Leonard, and proved by him that the said land had been selected by the State, under the authority of the United States; that he purchased Townsend's interest therein, who had a pre-emption thereto, and had proved up the same at sheriff's sale on an execution against Townsend, who was now insolvent.

The plaintiff then proved by an agent of Busby that he rented the land to Townsend for $100, and took his obligation therefor, which was delivered by Busby, who afterwards received the rent; that when Townsend sold the land to Busby and executed the above title bond, certificates of pre-emption had not been issued. Townsend and Busby went to the office to prove Townsend's right to pre-emption, but in consequence of some previous omission it was not then proven, but shortly after the certificate was issued, and it, together with the bond and the obligation for rent, was placed in the agent's hands, by whom they were delivered to Busby. The plaintiff then offered to prove that of the three notes, mentioned in the above bond, one was payable before that on which this suit was brought and that the other was not due. This evidence was rejected. The plaintiff also offered in evidence the following agreement between Busby and Leonard, which was also rejected: “Whereas, we, the undersigned, have severally claims to the northwest quarter section 34, township 57, range 35,...