Sprague v. Rooney

• Decision Date: 25 May 1891
• Citation: 16 S.W. 505,104 Mo. 349
• Parties: SPRAGUE v. ROONEY et al.
• Court: Missouri Supreme Court

16 S.W. 505

104 Mo. 349

SPRAGUE v. ROONEY et al.

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

SPECIFIC PERFORMANCE — ILLEGAL CONTRACT.

1. Where a house is rented for use as a brothel, and, to evade the statutes in such case made and provided, a written agreement is entered into for the sale of the house on monthly payments until a certain sum shall have been paid, when the landlord agrees to execute a conveyance and to take a deed of trust for the balance of the purchase money, the agreement is illegal, and will not be specifically enforced after the stipulated monthly payments have been made. Overruling Sprague v. Rooney, 82 Mo. 493.

2. Evidence of the illegal purpose is admissible under a general denial.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

This cause has been here before, and is reported in 82 Mo. 493. It is and was an equitable proceeding for specific performance of the following contract: "This article of agreement, entered into this 20th day of February, 1878, by and between Catherine Rooney of the one part, and Bessie Stevenson of the second part, witnesseth that the said Catherine has this day bargained and sold to said Bessie Stevenson, for the sum of two thousand five hundred dollars, the following real estate lying and being in the City of Kansas, county of Jackson, state of Missouri, namely, lot No. 11, block 3, Lykin's addition to the City of Kansas, old town, as the same appears on record of the recorded plat of said addition, upon the following terms and conditions, to-wit: The said Bessie Stevenson to pay the sum of twenty-five dollars per month, payable monthly, on the 20th day of each month, until the sum of one thousand dollars is thus paid; then the said Catherine Rooney to execute and deliver to the said Bessie Stevenson a good and sufficient warranty deed to the same, taking the notes of said Bessie Stevenson, secured by deed of trust on the property conveyed, for the same deferred payments. But if said Bessie Stevenson fail or refuse to make any monthly payments as herein provided until deed made, her rights under this agreement to cease, and said Catherine Rooney to be immediately entitled to the possession of said real estate. In witness whereof the parties have set their names and affix their seals to duplicate copies hereof, one to be retained by each, the day and year aforesaid. MRS. CATHERINE ROONEY. [Seal.] MISS BESSIE STEVENSON. [Seal.]" The defense then made in effect was that the contract, though in form a sale, yet was in reality a lease, drawn in the form of a sale in order to evade the statute respecting the leasing of premises for a bawdy-house, for which purpose the then plaintiff intended using it. A replication put in issue the allegations of the answer, and on the hearing the issues were found in favor of the defendant, and judgment accordingly; but on appeal to this court that judgment was reversed, and the cause remanded. When the cause reached the lower court again, however, the answer and defense were changed; the former consisting of a general denial, and an allegation that at the time the contract mentioned was made Catherine Rooney was a married woman, etc., and hence that the contract was void, etc. A reply was filed to this answer, setting forth that Catherine Rooney, though a married woman, had an equitable separate estate in the property in controversy, etc.

By agreement of parties the testimony of Catherine Rooney, taken at a former trial, but who had died in 1884, as well as that of Bessie Sprague, taken at the same time, might be read in evidence by either party, subject only to objections for irrelevancy or incompetency. Pursuant to this stipulation the plaintiff introduced in evidence a portion of the testimony of Bessie Sprague, as follows: "I am the plaintiff in this case. I know the defendant Catherine Rooney, and have known her several years. I am acquainted with the property in controversy in this suit. In the month of February, 1878, and a short time prior to the 20th day of that month, I went to see Mrs. Rooney about renting the property in controversy. I saw her at her house in Kansas City. I told her I would like to rent the house. That I had heard she had offered to rent it to Mollie Wilson for fifteen dollars a month, and that I would like to rent it if I could get it on reasonable terms. Mrs. Rooney then asked me why I did not buy the property. I answered that I had not thought of buying the property, as I did not have money to pay for it. She said that she would sell it to me on such easy terms that I could pay for it. I asked her on what terms, and she said for twenty-five hundred dollars, and that I could pay her twenty-five dollars per month until I had paid her a thousand dollars, when she would give me a deed to the property, and I could then secure the balance of the money to her by a deed of trust on that property. She urged me to do this, and said if I bought it it would then be mine. I told her I would take the property, as I thought I could pay for it on those terms, and she would have the contract between us drawn up, so that we could sign it the next time I came. I called to see her again in a day or so, — I cannot remember exactly how long it was, — and we signed the contract sued on in this case. I paid her the first installment of twenty-five dollars on the 20th of February, 1878, and took possession of the property, which I have retained ever since, either myself or tenant. When I took possession of the property it was in very bad repair. Many of the window-lights were out; a great many of the keys and door-latches were gone; some of the plastering off; and one or two doors down. Before moving into the house I had it repaired by putting in the window-lights and fixing the plastering, hanging the doors, and fitting them with keys and latches, and by preparing two of the rooms. I have since that time had the premises repaired on several occasions, and have made a number of improvements, all of which have been paid for by me. I have twice had the house painted, a part of it twice papered. I had a partition built across one of the rooms, thus converting it into two rooms. I had a window put in the south side of the house. I had the kitchen repaired, and the floor taken up, and brick laid under it to keep the rats out. I had a new pump put in the cistern. I had a new bridge put at the approach to the house from the front; and I had a new front put into the house. The repairs and improvements altogether cost at least $450, all of which was paid by me. Mrs. Rooney made no repairs or improvements on the property since the contract was made." Plaintiff then read in evidence the following portion of the testimony of Catherine Rooney: "I am one of the defendants in this case, and am acquainted with plaintiff. In the month of February, 1878, I owned the property in controversy. The property was vacant and unoccupied by a tenant. After we had made this agreement, I had my husband, John Rooney, write the paper on file with the petition, which on or about February 20, 1878, was signed by myself and plaintiff; and she paid me $25, and took possession of the property." The defendants also offered in evidence the following portion of the testimony of Catherine Rooney: "I am one of the defendants in this case, and am acquainted with the plaintiff. In the month of February, 1878, I owned the property in controversy. The property was vacant and unoccupied by a tenant. The plaintiff about that time came to me to rent said property. She had lived in the house as my tenant before. I agreed to rent her the house at $25 per month, payable at the 20th day of each and every month in advance. Twenty-five dollars was a reasonable rent for the house at that time. I knew that plaintiff wanted said house for the purpose of being used or kept as a brothel or bawdy-house. She told me she expected to keep some girls. I knew the statutory penalty for leasing or renting a house for such purposes, and in order not to incur the pains and penalties of the law, and to keep from being indicted. I did not execute and deliver a lease of the premises to the plaintiff, but the plaintiff and I agreed that our contract should be drawn up in the shape of a sham sale. The contract was never intended to be a sale of the property, as it purports to be on its face, but was made for the sole purpose of evading the law against knowingly leasing a house for the purpose of being used or kept as a bawdy-house or brothel. I have paid the taxes on said property ever since said contract was made; and have been collecting rent from one Clara Despain, who now occupies said premises, since about August 20, 1881. I have also kept the property insured. I was to keep the premises in repair, and I did keep them in repair. * * * Nobody except the plaintiff, myself, and God Almighty were present when I signed the contract sued on, or at any time of the conversations between us respecting the property before the contract was signed. I did not want any one to know the nature of the transaction. When plaintiff rented the property of me before, she left before the end of the first month, and returned the keys and contract to me, and said she was going away because she was unable to furnish the house. Twenty-five dollars a month was a fair rental for the property at that time. I had previously rented it for that, except in the grasshopper times. I have made improvements on the property since February 20, 1878. I had a bridge built, which leads from the street to the house, across a kind of a gully or ravine, which I paid for. I cannot say how much I paid for it, as the man who...