Southworth v. Hopkins' Heirs

• Citation: 11 Mo. 331
• Parties: SOUTHWORTH ET AL. v. HOPKINS' HEIRS.
• Decision Date: 31 March 1848
• Court: Missouri Supreme Court

11 Mo. 331

SOUTHWORTH ET AL.

v.HOPKINS' HEIRS.

Supreme Court of Missouri.

March Term, 1848.

ERROR TO ST. LOUIS CIRCUIT COURT.

In this case, Thomas Southworth and wife, and others, legal representatives of one John Buzan, filed their bill to enjoin proceedings at law, and for further relief, against Thomas. Hopkins. The bill set forth that one Jonas Seely and wife, on the 15th day of December, 1831, made a written contract with John Buzan, whereby, it was agreed that Buzan should cultivate, work and improve a certain tract of land belonging to Seely and wife, and whereon they resided, according to their instructions, and secure the crops raised upon it; that he should divide the fruit produced in the orchard upon the land, with said Seely and wife; that he should provide Seely and wife with fire-wood; that he should divide into two parts the pasture of said land, by a fence, the eastern part being for Seely and the western for Buzan; and that he was to keep in repair all the fences of said land; Seely and wife reserved to themselves all the houses, out-houses and garden, on the north side of the spring branch running through the said lot. In consideration of the premises, Seely and wife contracted with Buzan that he should have and enjoy all of said tracts, except the reserved parts, during the life of Seely and wife, and upon their decease he should be absolutely possessed thereof, in fee simple. The bill avers performance of the contract by Buzan--that ever since the making of it, Buzan, until his death, and since that time his family who were adults at the time, have resided on the land. That in the year 1836 or 1837, Mrs. Seely died, and Seely became discontented with his residence and removed to Ralls county, without any fault or neglect on the part of complainants in performance of their duties and obligations toward him, and that after removing, he conveyed to one Thomas Hopkins in the year 1836, who is made defendant, the said tract of land in fraud of the rights of complainants who had always performed their contract until prevented by the act of Seely himself. That Hopkins paid nothing for the land, and that he had full notice of the contract by virtue of which Buzan held it. That Buzan in his life-time by himself and his adult children were always ready and willing to perform their contract towards Seely, and actually did perform it until he left the county of St. Louis, in which the land lay. That Hopkins has commenced an action at law to dispossess the family of Buzan from the land in question, and the bill prays that he may be enjoined from prosecuting the same--that be decreed to give up his deed to be canceled, and for general relief.

An answer was filed by Hopkins, on oath, setting up non-performance of the contract by Buzan, want of notice to Hopkins, and a general denial of equity in the bill. It was also averred that Hopkins had paid Seely, $400 for the land in cash, at the date of the execution of the deed. This last position, objected that Buzan having died and Seely being yet alive, although Buzan had died after Seely had left the county of St. Louis, the representatives of Buzan are not in legal contemplation capable of performing the contract.

Depositions were taken on both sides and witnesses examined at the hearing. Thomas Clark, witness for complainant, knew Buzan and all his family; also, Seely and his family. Some of Buzan's family were living on the land when Buzan died. He died in St. Louis. Witness heard Hopkins, before he purchased the land from Seely, say he didn't like the Buzans or any of the family and that he wanted to get them out of the neighborhood--that he intended buying the land they were living on, and get them out of the neighborhood. Hopkins spoke of the contract between Seely and Buzan. Witness mentioned it to him. Hopkins said it was of no account. Witness lived about two miles from Buzan--was there frequently; thinks the fences and crops were as good as the general run of them in that neighborhood, but he did not notice them particularly. Corn, wheat and oats were cultivated every year. Witness can bleed, and knows something of the treatment of diseases, though not a doctor; was frequently at Seely's to see the old people. He always saw fire-wood there in cold weather, and never heard any complaint for the want of it. Hopkins had been two or three years in the neighborhood when Mrs. Seely died. Witness thinks the contract between Seely and Buzan was known to the neighbors generally. It was frequently talked of and known to be in error. Witness cannot speak particularly of the improvements made by Buzan, but believes that he inclosed and cultivated the field north of the branch. On cross-examination, witness said that Hopkins told him that he didn't like the Buzans and intended to get them out of the neighborhood, and the instrument by virtue of which Buzan claimed the land was of no account, or that the title of Buzan was of no account. Witness thinks a written contract was talked of between him and Hopkins, but cannot say positively that a written contract was mentioned.

It was admitted that the land sold by Seely to Hopkins, was the same which is mentioned in Hopkins' answer, and which was and had been occupied by Buzan and his family.

Elisha Patterson stated, that Jonas Seely left the county of St. Louis for the upper country in 1835. Hopkins came into the neighborhood before Mrs. Seely's death, and she died in the fall of 1834. Seely and Buzan lived on the land in 1834 and 1835. The contract between Seely and Buzan was in the opinion of the witness no secret, but witness never heard Hopkins talk of it. Witness frequently saw the land while Buzan occupied it, and thought it was in good order--thinks the north field was enlarged by Buzan. The pasture contained about five acres, the north field ten or twelve, and the southern fifteen or twenty. Altogether, perhaps, there were from thirty to fifty acres under fence. The fences were good enough to turn most stock, and witness never heard of any damage to the crops on this land from bad fences. Witness frequently saw Seely at his house during the winter, and always saw fire-wood at his door. On cross-examination, witness stated that Seely was now eighty years of age, at least. He was feeble and decrepit in 1835, and unable to get his fire-wood or do any work. He had no slaves. Witness knew him for thirty years of his life. Mrs. Seely was, until she was taken sick, much the stouter of the old people. Witness believes that the Buzans cut Seely's firewood after hauling it to the door. The last time witness was at his house, Seely was alone--it was after his wife's death. Some member of Buzan's family staid with him as a general thing, and waited on him. Witness thinks the condition of Seely after his wife's death was forlorn and bad. Seely wanted witness to come and live with him.

Thomas F. Blair, for complainants, had been acquamted with Seely and Buzan for twenty years; knew the land in controversy--it was cultivated with ordinary care and as well as the generality of farms in that neighborhood. Buzan put up the fence on the north side of the branch and enlarged the cultivated fields, and raised very good crops considering the land, which was thin. Thinks Buzan put up a cross-fence dividing the pasture into two parts. The spring was in the middle of the pasture: was enlarged by Buzan, and the fence passed over it so as to leave part of the spring for the two families, between whom there was at one time a misunderstanding. Witness frequently heard the neighbors talk of the contract between Seely and Buzan, but never heard Hopkins say anything of it until some difficulty occurred between him and Buzan about some corn. Hopkins was in the neighborhood a year or two before the death of Mrs. Seely. He lived at the mill already spoken of. It was generally known in the neighborhood that Buzan was to have the land upon the death of Seely. Witness was often at Seely's house in cold weather; he always had fires. Witness has made up fires for him. There was always fire-wood at the door, and it was generally cut to the proper length. Sometimes witness cut it. Witness frequently saw different members of Buzan's family there; and one or another member of it was there constantly. Once, while Mrs. Seely was unwell, Nancy Buzan staid there several months. On cross-examination, witness stated that, before Buzan went on the land, there was no fence dividing the pasture; he is not sure that the fence was put up the first year, and rather thinks it was put up the second year. It was a common worm fence, about one hundred and fifty yards long. There was water in both pastures. Can't say how long the fence was kept up. Witness left the neighborhood in 1837. Was there when Mrs. Seely died. Mrs. Seely was very old and decrepit. The old people would sometimes ask witness to cut wood when he was there.

Timothy Bray testified, that he lived at the mill from 1829 to 1833-- he requently passed Seely and Buzan's field, and remembers the ten acre lot on the north. The pasture was not inclosed at first. Witness uncertain whether it was inclosed or not in 1833, but he thinks not. Witness left in 1833 (September)--did not particularly remark the fences--that towards the road was pretty good. Visited Seely's house as often as any one in the neighborhood. There were no fences inclosing or dividing the pasture, up to 1833. Witness frequently saw Buzan's sons hauling fire-wood to Seely's house, and also saw wood there which had been hauled already. Don't know who cut the wood into lengths for the fire, nor why the old man left his house. Witness left the neighborhood in the life-time of the old lady.

Laban Landon testified, that he had known Seely and Buzan since 1824, and until Seely left the county. He lived about five miles from Seely's, and was frequently at his house when Buzan first went on the land. Seely left in 1835. His wife died in the fall...