Truesdell v. Callaway

• Decision Date: 30 September 1840
• Citation: 6 Mo. 605
• Court: Missouri Supreme Court
• Parties: TRUESDELL v. L. S. & D. B. CALLAWAY.

6 Mo. 605

TRUESDELL

v.L. S. & D. B. CALLAWAY.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF GASCONADE COUNTY.

FRISSELL, for Appellant. 1st. That a party to a bill for specific performance may admit a verbal contract to convey, and still insist upon the statute of frauds as a bar to the performance. Rowe v. Teed, 15 Ves. C. R. 371. 2d. That the statute in this case presents a complete bar to the prayer of the bill for a specific performance, there being no contract, other than verbal, between Truesdell and McCoy, or his assignees, the Callaways. Leman v. Whilby, 3 Cond. E. C. R. 736; Bacon's Abr. 120. 3d. That the purchase money not having been paid to Pritchett, neither at the day, or any other time, Pritchett might rightfully sell the land to another, and the purchaser would hold the land, divested of any equity that McCoy or his assignees might have had against Pritchett. Hatch v. Cobb, 4 Johns. Ch. R. 559; Kempsal v. Stone, 5 Johns. Ch. R. 193. 4th. That time in this instance did constitute a part of the essence of the contract, between McCoy and Pritchett, the value of the property contracted to be sold being constantly changing. Doulot v. Rothschild, 1 E. C. R. 302; Parker v. Frith, do. 100; Benedict v. Lynch, 1 Johns. Ch. R. 369; Newland on Contracts, 224. 5th. That until the purchase money had been paid, or tendered, neither McCoy or Callaway could ask for a conveyance, either from Pritchett or Truesdell in a court of equity, payment being by the contract a condition precedent. 6th. There being no allegations in the bill that McCoy had paid the purchase money to Truesdell, but there being an allegation that the same had been paid by McCoy to Pritchett, and the proof being clear that Truesdell had paid the purchase money to Pritchett, and there being no proof that McCoy had done so, the court erred in founding its decree upon the assumption that McCoy had paid the said money to Truesdell. 2 Mad. Ch. 438.7th. That even admitting that the money had been paid, a court of equity could not decree a performance to be made by Truesdell for the want both of privity and mutuality. Newland on Contracts, 152-3; 1 Chitty, see Practice, 827-8. 8th. If McCoy or his assignees have any remedy, notwithstanding their laches, it would be at law and against Pritchett. Hatch v. Cobb, 4 Johns. Ch. R. 559. 9th. No proof could be legally admitted of any matter not at issue between the parties, and the matter of the payment by McCoy to Truesdell of the purchase money not being at issue, all proof tending to prove such payment must be excluded. 2 Maddox, 438.

BRICKEY, for Appellees. 1st. That Truesdell acquired the title to the land in question as trustee, and as such was bound to convey to McCoy or his grantees, the present complainants. If a man purchase land in the name of another and pays the money, it will be trust for him that paid the money, though there be no deed declaring the trust, for the statute of frauds does not extend to trusts raised by operation of law. A resulting trust, or trust by operation of law, remains as at common law, and susceptible of parol proof. 7 Bac. Abr. 142, letter c, and authorities there cited; 1 Johns. Cases, 153, Jackson v. Sternberg; 3 Johns. R. 216, Foot v. Colvin. 2d. The parties having submitted this cause to the decision of the Judge as Chancellor, cannot now make objection to his decision. Therefore there is no error in the record or proceedings of the court below, and this court will affirm the decree of complainants.

COLE, for Appellees. 1st. Truesdell obtained the title to McCoy's land mala fide, by false suggestions and a suppression of the truth, when there is fraud trust arises. 1 Cranch on Real Property, 485. 2nd. When the title was obtained from Caldwell, Truesdell made a public declaration of the trust to McCoy and that he had notice of McCoys title. 3rd. That there is a trust created by operation of law in favor of McCoy or his assignees. 11 Johns. R. 95; 2 Story's Equity, 438; 2 Fonb. Equity, 116; Sugden on Vendors, 443 and 527. 4th. The plea of the statute of frauds cannot avail defendant, under the facts and circumstances of this case. Story's Equity, 16, 441; 1 Cranch on Real Property, 471. 5th. The defense in the answer, which alleges a contract of McCoy about a sixty feet way, is not proved, is without consideration, is wholly indefinite, void and against law. When matters are set up in avoidance they must be proved. 2 Madd. Ch. 446, Green v. Hart; 1 Johns. R. 589. 6th. The defense in the answer which alleges the payment of a sum of money by Truesdell to Pritchett for McCoy cannot create an equity in behalf of Truesdell; because 1st. Trusdell paid the money to Pritchett without being requested to do so by McCoy. 2nd. The relation of vendor and purchaser does not exist between Truesdell and McCoy, and the complainants are not bound by the transaction, and are purchasers without notice. 3d. Truesdell obtained the legal title to McCoy's land fraudulently and no equity can arise to him under the circumstances. 4th. From the facts of the case if Truesdell did ever pay money he must have been repaid. 5th. From the facts of the case Truesdell never did pay the money to Pritchett alleged in his answer and the allegation in this particular, as well as many others connected with it, are not proved. McKnight et al. v. Bright, 2 Mo. R. 110; Marsh v. Turner, et al. 4 Mo. R. 253. 7 th. There is no error in the Chancellor in disregarding the issues in the cause, nor on finding the money repaid to Truesdell, nor in the decree by him rendered in the cause.

TOMPKINS, J.^a1

Larkin S. Callaway and Daniel B. Callaway preferred their bill of complaint in the Circuit Court of Franklin county against William Truesdell, the appellant, and one Jesse Pritchett. The cause was transferred to the Circuit Court of Gasconade county; where a decree being made against Pritchett, for want of an answer, and against Truesdell, on a hearing, he appeals to this court.

The complainants in their bill state that they are the purchasers of a tract of land lying in said county of Franklin. That said tract of land was originally the property of one John Caldwell, who sold it, along with other land thereto adjoining, to said Pritchett, who sold the same to the defendant, Truesdell, to one William G. Owens, and to one Joseph McCoy, in separate parcels, giving to each a bond for a title to his respective part, whenever said Caldwell should make to said Pritchett a title to said tract of land; that the complainants purchased the interest of said McCoy; that Pritchett, when he sold the land, as aforesaid, to said Truesdell, Owens, and McCoy, put each of them into the possession of his respective parcel of land; that Pritchett had paid Caldwell for said land; and that Truesdell, Owens and McCoy, had each paid Pritchett for the portion which each had respectively purchased from him, and each was entitled to a deed for his land, that is to say, Pritchett to a deed from Caldwell, and Truesdell, Owens and McCoy, from Pritchett. That when said Truesdell and Owens applied to Pritchett to make them a deed, by agreement among themselves, Pritchett surrendered to Caldwell his bond for the title to said land, and Caldwell, in consideration thereof, did convey the said land to Truesdell and that Truesdell in consideration thereof undertook to convey to Owens and McCoy, respectively, their several portions of said tract of land, according to the effect of the bonds executed to them respectively, by Pritchett; that in some short time thereafter Truesdell informed McCoy of this arrangement, and requested him to pass the title bond made to him by Pritchett over to William G. Owens, in order to have a deed drawn agreeably to the terms of the bond, and that he, Truesdell, would execute it; that McCoy accordingly did deliver the title bond to said Owens who wrote the deed and delivered it to McCoy, but retained the bond; and that McCoy presented the deed to Truesdell for execution, and he refused to do it, but said he would execute any deed which would bind said McCoy and his heirs to keep open a way, sixty feet wide, through said land, on the bank of the Missouri river; that McCoy told Truesdell that his bond called for the Missouri river as a boundary, and that if he did not execute the deed as drawn up by Owens, he would resort to Pritchett on his bond; that Truesdell then told McCoy he had no bond, alluding to the fraudulent collusion between Truesdell and Owens, by which said bond was retained in the possession of Owens, and McCoy kept out of his title. The bill further charges Truesdell with the act of procuring the deed for this land to be made by Caldwell to himself with intent to defraud McCoy; and further states, that neither McCoy nor the complainants have ever been able to recover the bond from Owens, and that they believe it is withheld by the connivance of Truesdell; that said Owens is dead, and McCoy gone to parts unknown to the complainants; that they are unable to give the dates of the several transactions above stated, all of which are stated to be within the knowledge of Truesdell, and to have transpired within a few years. The boundaries of the land are there set out in the bill conformably, as is said, to the provisions in Pritchett's bond to McCoy. The bill prays a decree for a conveyance of the premises, and that Truesdell may be restrained from proceeding in ejectment against the complainants.

To this bill Truesdell pleads the statute of frauds; and answering says, that he did purchase of Pritchett a tract of land on the Missouri river, in Franklin county aforesaid, in the year 1832, the legal title of which he understood when he purchased to be in one John Caldwell; that Pritchett at the time made him his bond for a title, to be made so soon as he could get a title made to him by Caldwell; that the said bond was some years ago delivered up to said Pritchett, and he cannot be...