Underwood v. Underwood

• Citation: 48 Mo. 527
• Parties: THOMAS UNDERWOOD, Defendant in Error, v. JAMES UNDERWOOD et al., Plaintiffs in Error.
• Decision Date: 31 October 1871
• Court: United States State Supreme Court of Missouri

48 Mo. 527

THOMAS UNDERWOOD, Defendant in Error,

v.JAMES UNDERWOOD et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Mississippi Circuit Court.

Houck, Waide & Watkins, for plaintiffs in error.

I. To avail him, plaintiff's change of possession must be unequivocal. The occupancy of a tenant after parol contract of sale amounts to nothing. (Price v. Hart, 29 Mo. 173; Spaulding

v. Conzelman, 30 Mo. 182; Browne on Frauds, 477.) The case must be such as would make plaintiff a trespasser unless specific performance were decreed. (Sto. Eq., § 896.) Here plaintiff was a coparcener and could not be a trespasser.

II. Plaintiff's improvements were unimportant and naturally reconcilable with a continuance of the old relation. (Spaulding v. Conzelmen, supra; Brennan v. Balin, 2 Dru. & War. 349.)

III. The terms of the contract must be established by competent proof, otherwise specific performance will not be decreed. (Sto. Eq., §§ 764-7.)

N. Myers, for defendant in error.

I. Proof of plaintiff's possession after the alleged contract, is supported by that of the statement of Joseph Underwood, that he had put plaintiff in possession and that he would make him a deed as soon as he had time.

II. To authorize specific performance, the case need not be such that the claimant would be a trespasser unless performance were decreed. If so, a coparcener never could procure the decree.

III. The improvements were of sufficient importance.

BLISS, Judge, delivered the opinion of the court.

The plaintiff, Thomas Underwood, Joseph H. Underwood, deceased, and one Albert Underwood, were brothers, and children of Thomas Underwood, deceased, who died seized of the land in controversy. The petition charges that during the life of said Joseph H. the plaintiff purchased by parol and paid for his interest in the property; that he took possession under the purchase and made valuable improvements; that his brother promised to make a conveyance of his interest, but died without having done so; and a specific performance is asked for. The case went to trial and the plaintiff obtained judgment.

Counsel for defendants claim, first, that, inasmuch as the plaintiff was a coparcener, he was always constructively in possession, and no such possession could be given him as would constitute an act of part performance.

The continued possession of one who had been in actual occupation before the alleged contract, or the taking actual possession by one who had been constructively in possession as tenant in common with the right of corporal entry, is not so easily shown to be an act of part performance as though it were delivered to and taken by a stranger. In actions for specific performance it is held that the possession, or possession in connection with the payment, creates the equity, and in order to sustain a bill it should be referable exclusively to the agreement. (Browne on Frauds, §§ 457, 476; 1 Johns. 149.) It is obviously more difficult to show such reference when the possession might be otherwise rightful than if the party would be a trespasser, but for the contract. It does not of itself indicate any contract whatever; does not, as would be the case with a stranger, point to one with which it might harmonize. In the case of a stranger the entry itself is evidence of some agreement, or he would be a trespasser. What that agreement is must be otherwise shown, for it may be a mere license; but it is otherwise with one in rightful occupancy without an agreement. Yet one in possession, whether actual or constructive, should not hence be deprived of the benefit of a parol agreement, if the continued possession can be shown to be held under it. But the agreement itself will not suffice to show the quo animo, if it is not continued, any more than the possession will show an agreement. In petitions of this kind there must be positive indications of a change of relations. Thus, in cases where a tenant continues in possession under an alleged agreement for a new tenancy, the purpose is answered by proof of any act on his own part, done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of the parties--as when he makes improvements upon the premises, this fact is of great weight to show a change in...