Tibeau v. Tibeau

• Decision Date: 31 October 1855
• Citation: 22 Mo. 77
• Parties: TIBEAU, Respondent, v. TIBEAU, Appellant.
• Court: Missouri Supreme Court

22 Mo. 77

TIBEAU, Respondent,

v.TIBEAU, Appellant.

Supreme Court of Missouri.

October Term, 1855.

1. The supreme court will not reverse a judgment on the ground that the court has not permitted a party to have the opening and the closing of the case to the jury, unless such refusal has produced a wrong to the party.

2. An understanding between vendor and vendee, entered into at the time of sale of land, (being a parol sale under which possession is taken,) that if within a year the former should repay to the latter the purchase money, with interest, then the latter would reconvey to the former, constitutes the transaction a mortgage.

Appeal from St. Louis Circuit Court.

For the report of this case, when on error before, see 19 Mo. 78. In addition to the evidence offered at the former trial, the plaintiff introduced evidence tending to prove a tender of the mortgage money. At the close of the plaintiff's case, the defendant asked the following instruction: “1. The jury are instructed that the plaintiff can not recover;” which the court refused, and defendant excepted. Defendant then gave evidence tending to show a parol sale by plaintiff to defendant, and possession taken under the same. The defendant asked the following instructions: “2. The jury are instructed that if plaintiff re-sold the land to defendant, and possession of the land was by plaintiff, through Louis Tibeau, surrendered to defendant, then, as there is no question that the consideration was paid, the jury must find for the defendant.”“3. The jury are instructed that by the pleadings it is admitted that the sum of one hundred and thirty dollars was paid by defendant for plaintiff, and the only issue to be tried by the jury, is whether this sum, so paid, was the consideration of a mortgage or of a re-sale of the land by plaintiff to defendant.”“4. The jury are instructed that if plaintiff sold the land to defendant, with intent to cover up the property, and hide or conceal the same from his creditors, then plaintiff can not recover, and the jury must find for the defendant.”“5. It is admitted by the pleadings that one hundred and thirty dollars were paid to or on account of plaintiff by defendant.” These instructions were refused by the court, and, on its own motion, the court gave the following: “1. [This instruction is set forth in the opinion of the court.] 2. It is admitted by the plaintiff in his petition that in 1839, he owed defendant $130.” At the request of plaintiff, the court gave the following instruction: “3. If the jury find for the plaintiff, they will find the value of the rent of the premises from the year 1849 to the present time.” The defendant duly excepted to the giving and refusing of the above instructions. The jury returned a verdict for the plaintiff, and assessed the monthly value at ten dollars. The court, by its own decree, vested the title to the land in the plaintiff, subject to a lien in favor of the defendant for the balance due him.

A. J. P. Garesché, for appellant.

Reber, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This case was heretofore in this court, and is reported in 19 Mo. 78. The judgment below was then reversed, and the cause remanded. The present record presents very much the same state of facts; it will not be necessary therefore to make a lengthy statement of the facts now before us, but to refer to the reported case. The plaintiff below again obtained judgment against the defendant, who moved to set the same aside, and for a new trial, which being overruled, he brings the case here by appeal.

In this court, the defendant contends for a reversal of the judgment, because the court below improperly and illegally refused to permit the defendant's counsel to have the opening and the concluding of the case before the jury. And because proper instructions were asked by the defendant and refused by the court, and improper instructions were given by the court.

1. As to the first ground of complaint, we say that is not well taken. “This is a matter depending on the practice and discretion of the circuit or inferior court. In an argument to a jury, the reply may or may not have had an influence on the verdict. If the verdict is such a one as could not have been rendered otherwise, on the law and the evidence of the case, the court below would not have granted a new trial, although the right to conclude had been denied to him who held the affirmative, and against whom the verdict was rendered; nor would this court reverse a judgment for such a cause.” (Wade v. Scott, 7 Mo. 514; 1 Greenl. Ev. § 75 and 76.) The exercise of the discretion of the inferior courts in this matter must produce wrong to the party in the cause, before this court will pretend to revise it.

2. In...