Taylor v. Von Schroeder

• Citation: 16 S.W. 675,107 Mo. 206
• Parties: Taylor et al., Appellants, v. Von Schraeder
• Decision Date: 25 May 1891
• Court: United States State Supreme Court of Missouri

16 S.W. 675

107 Mo. 206

Taylor et al., Appellants, v. Von Schraeder

Supreme Court of Missouri, First Division

May 25, 1891

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Affirmed.

Laughlin Thoroughman & Priest for appellants.

(1) First. A judgment is the decision and sentence of the law propounded by the court or other competent tribunal upon the matter contained in the record. Freeman on Judgments, pp. 1 2; 6 Wait, p. 767, and citation; Crosby v. Jerome, 37 Ind. 264. Second. And such a judgment is conclusive, even if erroneous, till regularly annulled or reversed by an appeal for that purpose. Wells on Res Adjudicata, sec. 6, p. 4; Hollester v. Abbott, 11 Foster (N. H.) 448; Aurora City v. West, 7 Wall. 82; Board v. Fowler, 19 Cal. 13; Commissioners v. Lucas, 93 U.S. 113; Attorney General v. Lung, 2 Wis. 514. Third. And the effect of such a reversal is to leave the parties just as they were before the judgment was rendered. Gott v. Powell, 41 Mo. 417; Jones v. Hart, 60 Mo. 364; Brown v. Troup, 33 Miss. 35; Freeman on Judgments, 482. Fourth. And the time during which such appeal was pending cannot be taken advantage of in any subsequent proceeding between the parties on the ground of laches. Crispen v. Hannovan, 86 Mo. 160. (2) First. Where an infant has executed a contract on his part, although not enforceable against him, still equity will decree specific performance. Clayton v. Ashdown, 9 Viner's Abridg.; Wright v. Schuyler, 31 How. Pr. 41; Story Eq. Jur., sec. 736. Second. And where the contract, if fair, founded on a valuable consideration (and a promise is a sufficient consideration for a promise, 1 Par. Con. 448-51), and the plaintiff has shown an intention in good faith to execute it, a decree for specific performance is a matter of right. 2 Bishop on Law of Married Women, sec. 250; Bliss v. Safe, 4 American L. J. 508; Shannon v. Wright, 49 N.Y. 227; Losee v. Morey, 57 Barbour, 561. (3) While it is the general rule that contracts must be mutually enforceable (Frye on Specific Performance; Mastin v. Halley, 61 Mo. 196); yet it is the duty of the other party on the lack of mutuality appearing by reason of incapacity to rescind the contract, otherwise he cannot be heard to plead lack of mutuality. Frye, Spec. Per., secs. 447, 448, and citations; Gupton v. Gupton, 47 Mo. 432; Sutton v. Hayden, 62 Mo. 114; Hyatt v. Williams, 72 Mo. 214; West v. Bundy, 78 Mo. 410; Anderson v. Shockley, 82 Mo. 50. (4) It is the rule in equity, that where one has been placed in such a position by a partial performance, that it would be a fraud on him if the contract was not fully executed, then equity will interfere, notwithstanding the statute. Rose v. Bates, 12 Mo. 21; Farrar v. Patton, 20 Mo. 85; Price v. Hart, 29 Mo. 171; Taylor v. Luther, 2 Sum. 232; Thompson v. Henry, 85 Mo. 451; Webb v. Toms, 86 Mo. 591; Langton v. Bates, 84 Ill. 524. (5) Where a contract has been fully executed by one party, equity will compel the other party to perform his part. Walker v. Walker, 2 Ark. 100; Wells v. Reynolds, 66 N.Y. 237; Digby v. Jones, 67 Mo. 104; Neale v. Neale, 76 U.S. 1-13. (6) The evidence in this case shows that it is clearly taken out of the operation of the statute of fraud. Self v. Cordell, 45 Mo. 345; Tatum v. Brooker, 51 Mo. 148; Blanton v. Knox, 3 Mo. 342; Suggett's Adm'r v. Cason's Adm'r, 221; Simmons v. Headlee, 94 Mo. 488; Rose v. Bates, 12 Mo. 21-48; O'Fallon v. Clopton, 89 Mo. 287; Turner v. Johnson, 95 Mo. 431-47. (7) Notwithstanding the statute, if a married woman has done all on her part required by the contract, it will be enforced against the other party. 2 Bishop, Law of Married Women, sec. 250; Neff v. Redman, 76 Mo. 195; Walker v. Owen, 79 Mo. 563; Shroyer v. Nickell, 55 Mo. 264.

Cecil V. Scott, also, for appellants.

(1) The contract in question is established by clear and satisfactory proof; that it is denied, as contracts of this character usually are, does not necessarily raise a reasonable doubt. (2) A married woman may enforce a contract executed by her, either in whole or in part, and remaining executory on the part of the person contracting with her. Chamberlin v. Robertson, 31 Iowa 410; Neff v. Redmon, 76 Mo. 195; Walker v. Owen, 79 Mo. 563; Overspeck v. Thiemann, 92 Mo. 475; Dickson v. Kempinsky, 96 Mo. 258. (3) The fact that part of the consideration of a contract consists of covenants of a married woman, which could not be enforced by reason of her coverture, of which the other party had knowledge, does not avoid the contract. Dickson v. Kempinsky, supra. (4) Where one in pursuance of, and on the faith of, an oral promise that he shall have a deed for land enters into possession and makes valuable improvements, the case is taken out of the statute of frauds, and he is entitled to a decree for specific performance. Anderson v. Shockley, 82 Mo. 250; Chamberlin v. Robertson, supra; Neff v. Redmon, supra; Thompson v. Henry, 85 Mo. 456; Webb v. Toms, 86 Mo. 591; Overspeck v. Thiemann, supra. (5) All that is required is that the possession should be taken in pursuance of the contract or that it be referable to the contract. Simmons v. Headlee, 94 Mo. 482. (6) An agreement of a creditor, secured by deed of trust, to buy the property in at the sale and hold it for the debtor, or convey it to the debtor or his appointee upon payment of the mortgagee's debt, is not within the statute of frauds. Damschrader v. Thias, 51 Mo. 100; O'Fallon v. Headlee, 94 Mo. 482; Simmons v. Headlee, supra; Turner v. Johnson, 95 Mo. 431. (7) Where a party to a contract refuses to permit a performance on the part of the other party thereto, such refual is taken as equivalent to a performance for the purpose of maintaining an action on the contract. Park v. Kitchen, 1 Mo.App. 358; McGullough v. Baker, 47 Mo. 401; Ehrlich v. Ins. Co., 88 Mo. 257. (8) A judgment reversed with the usual mandate becomes mere waste paper; neither party can suffer detriment or receive assistance from the former adjudication; it confers no rights, and has no vitality for any purpose. Orispen v. Hannovan, 86 Mo. 167; Atkison v. Dixon, 96 Mo. 587. (9) Any relief appropriate to the facts alleged and approved may be granted under a prayer for general relief. Pomeroy v. Benton, 57 Mo. 550; Snider v. Coleman, 72 Mo. 568; Bevin v. Powell, 83 Mo. 365. (10) A claim that a contract is fraudulent as to creditors must come from the latter and not from parties to it. Larimore v. Tyler, 88 Mo. 661; Burns v. Bangert, 92 Mo. 177. (11) The court below erred in dismissing the bill. It should have decreed specific performance of the contract.

Kehr & Tittman for respondent.

(1) First. The onus of establishing by clear and satisfactory evidence the contract which the appellants seek to have specifically enforced rests upon them. Taylor v Williams, 45 Mo. 208; Strange v. Crowley, 91 Mo. 287. Second. The evidence to establish the fact must be clear, strong, unequivocal, so definite and positive as to leave no room for doubt in the mind of the chancellor. Johnson v. Quarles, 46 Mo. 426; Forrester v. Scoville, 51 Mo. 208; Woodford v. Stephens, 51 Mo. 433; Modrell v. Riddle, 82 Mo. 36; Rogers v. Rogers, 87 Mo. 257; Adams v. Burns, 96 Mo. 361. (2) The testimony for the plaintiffs shows no contract. First. No words of agreement or promise were used. The subject and terms of the supposed contract were not defined, and there was no intention to assume contractual obligation. Second. A contract to be enforceable must be mutual. Whilst it is claimed that Mrs. Von Schraeder agreed to sell, it is neither alleged nor proved that Mrs. Taylor agreed to buy. Indeed, being a married woman, she could not legally obligate herself to buy. Mastin v. Halley, 61 Mo. 200; Paris v. Haley, 61 Mo. 457; Sitton v. Shipp, 65 Mo. 297. Third. Nothing was paid, and nothing in excess of what was already due Mrs. Von Schraeder was to be paid. No promise to buy or pay was made by Mrs. May L. T. Taylor, and being under coverture none legally binding on her could be made. There was, therefore, no consideration. Slowey v. McMurray, 27 Mo. 117. (3) The scheme to transfer the title in the manner alleged in the petition was devised and intended by the parties claiming under it to defraud the creditors of Mrs. Mary Taylor. The law will not aid a person engaged in such fraud to reap the fruits of it. Hamilton v. Scull's Adm'r, 25 Mo. 166; Fenton v. Ham, 35 Mo. 409; Clarkson v. Creely, 40 Mo. 114; Larimore v. Tyler, 19 Mo.App. 445; Larimore v. Tyler, 88 Mo. 661. A secret arrangement between a defendant in an execution and a third person for the purchasing of property by the latter, the object of which is to defraud other creditors of the execution defendant, will not be enforced in a court of equity. Walker v. Hill's Ex'r, 7 C. E. Green, 513; Marlatt v. Warwick, 4 C. E. Green, 439; Crosier v. Acer, 7 Paige, 137; Baldwin v. Campfield, 4 Halst. Ch. 891; Servis v. Nelson, 1 MacArthur, 94. (4) The alleged agreement to convey being by parol is void under the statute of frauds. Appellants concede the proposition, but seek to bring themselves within the exception by averring: First, part performance of the agreement, and, second, inadequacy of price at the sale under the deed of trust, brought about by their own efforts to prevent competition at the sale. (5) To take the case out of the statute, the possession must be delivered in pursuance of the contract and with a view to the performance of it. Purcell v. Miner, 4 Wall. 513; Williams v. Morris, 95 U.S. 444; Story's Eq. Jur., sec. 763. First. Mrs. Von Schraeder, the supposed vendor, did not have the possession, and, therefore, could not deliver it. Nor do appellants claim to have derived their possession from her, but from Mrs. Mary L. Taylor. Second. The latter did...