Walker v. Owen

• Decision Date: 31 October 1883
• Citation: 79 Mo. 563
• Parties: WALKER, Appellant, v. OWEN.
• Court: Missouri Supreme Court

79 Mo. 563

WALKER, Appellant,

v.OWEN.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

REVERSED.

Henry Smith and Hamner & Burris for appellant.

Samuel Hardwicke for respondent.

WINSLOW, C.

This action was originally commenced in the Clay circuit court by Catherine Walker and Joseph Walker, her husband, for the purchase money of lands alleged to have been the fee simple property of the wife. The husband died pending the suit, his death was suggested on the record, and the cause thereafter proceeded in the name of the wife alone. The trial was before the court, both parties having waived a jury, and resulted in a finding and judgment for the defendant, to reverse which the plaintiff brings the case here by appeal.

The record seems perfect. The amended petition, on which the case was tried, states in substance that: “Catherine Walker, wife of Joseph, was the owner and in possession of a certain lot in Gosneyville, in Clay county; that she, by her agent, W. F. Nelson, April 3rd, 1873, contracted in writing to convey the same to defendant on payment of the sum of $200; that by said agent they executed on said day a bond binding themselves to execute and deliver to defendant a warranty deed to said lot; that they tendered such deed to defendant on the 21st day of June, 1873, which he refused to accept; that they cannot make profert of said bond because the same is in possession of defendant; that immediately upon said sale defendant was put in possession of said lot and has occupied, used and enjoyed the same ever since; that by the terms of said bond the purchase money was to become due on the tender of the deed, and that said $200 with interest from the tender of said deed, June 21st, 1875, at six per cent, are yet due plaintiff, for which she asks judgment. The answer contains a specific denial of all the allegations of the petition, and this additional plea: “Defendant says he did not sign any contract in writing in relation to said land, and said contract is void as to him under the statute of Missouri, and he pleads said statute in bar of this cause.”

On the trial plaintiff introduced Wm. F. Nelson, the agent, who testified: “On April 3rd, 1873, as agent for plaintiff, I sold defendant the lot described in the petition for $200, and gave him her title bond duly signed, stipulating that when her deed conveying the lot to him was delivered to him he was to pay therefor the $200. Defendant agreed to pay plaintiff the $200, took the bond and immediately under it received from plaintiff the possession of the lot, which had a storehouse upon it, and then occupied it as a retail store for some months, when the storehouse burned down and defendant told me the bond was burned in it. Defendant did not sign his name to the bond. June 21st, 1873, I received a deed from plaintiff and her then husband, conveying the property to defendant, and offered it to defendant, and he refused to take it, and refused to pay for it because he claimed the acknowledgment was defective, but made no objection to it because it was from plaintiff; afterward I offered him a deed, and again he refused to take it. It is the same deed now tendered in court to defendant. The plaintiff was owner and in possession of the property up to the time she sold it to defendant. Defendant never offered to return the property to plaintiff or to me as agent of plaintiff. Defendant knew that I was acting as her agent as I told him so at the time. Plaintiff bought about a dollar's worth of medicine out of defendant's store, which defendant agreed should be a payment on the lot.”

Plaintiff then read in evidence a general warranty deed in the usual form from herself and husband to George W Owen, for the lot in controversy, dated October 2nd, 1876, acknowledged the same day in proper form to convey said lot. No objections were made to its reception, and it was identified by Nelson as the one he tendered defendant. Plaintiff then read in evidence, without objection, a general warranty deed for the lot in controversy, dated January 13th, 1873, properly acknowledged and in all respects sufficient to vest the title of the grantors in the grantee, executed by W. W. Letton and Rutha I. Letton, his wife, of the county of Clay and State of Missouri, parties of the first part, and Catherine Nelson, of the county of Clay, as the party of the second part. No question is made on the record as to this deed, and we assume it was conceded to be sufficient. Plaintiff introduced no other evidence to sustain the issues on her part.

Defendant read, without objection, the deposition of Daniel A. Stout, in substance as follows: “Sometime in the spring of 1875, I was at Gosneyville and was called upon by W. F. Nelson, and consented to by Geo. W. Owen, to witness a certain contract respecting a house and lot in Gosneyville, which contract was in writing, which was read, but don't know the particular wording; sufficient to say the deed was to be made about the 1st of June. Mr. Owen said the law knows nothing about ‘bouts,’ but wanted a specified time. Mr. Nelson replied to Owen if he never got the deed he would have nothing to pay. Owen refused, and determined to pay no money or give any note until a deed was made to him. The agreement was not signed by Owen in my presence or with my knowledge; my understanding was the property belonged to W. F. Nelson, and the said Owen was purchasing the same from him. So far as anything occurred that day, I had no reason to believe that Catherine Walker had any claim upon the property whatever.”

Defendant then testified: “I did not sign the bond that was given me for the lot, and never paid anything on it; I am not holding the property now.” This was all the testimony in the case.

As showing the theory on which the court decided the case under the evidence, we append the instructions given and refused. The court refused the following declarations of law asked by plaintiff:

1. If defendant took plaintiff's written contract (duly signed) for a deed to the lot, and agreed to pay therefor to plaintiff $200 when the deed was executed, and pursuant to the contract entered upon and occupied the lot and storehouse thereon, never having offered to return the property or rescind the contract, then he became bound to pay the $200, whether he signed the contract or not, and his refusal to accept the deed and to pay the money on the 21st day of June, 1873, entitles plaintiff to recover the said $200 and six per cent interest per annum thereon from that date.

2. Under the law and evidence of this case the court will find for plaintiff for the $200, and six per cent interest thereon from June 21st, 1873.

The court gave the following declarations asked by the defendant, over plaintiff's objection:

1. Owen, who is charged to have purchased the lands by parol agreement, may insist upon the defense of the statute of frauds. A part performance by Owen of said parol contract for the sale of said real estate, will not avail the plaintiff who sold the land. Although the plaintiff signed a contract which bound her, yet Owen is not bound by said contract unless he signed the same or some other writing.

1. PRACTICE: what questions may be raised on appeal.

Counsel for respondent insists, for the first time in this court, we think, that the judgment should be affirmed because the record fails to show that plaintiff adduced a perfect title to the lot. If from this we are to understand that she did not trace her title to the original source, it is very clear that no such question was mooted in the court below. The controversy between the parties seems to have been as to whether plaintiff or W. F. Nelson held the title, and plaintiff having shown possession in herself and paper title sufficient to show that she was the owner and not W. F. Nelson, the question of title was not further controverted. This is manifest from the instructions presented by the learned counsel himself, in which the question of title is ignored and the case submitted on the sole theory that the statute of frauds constituted an absolute bar to a recovery; and it was upon this theory alone the court decided the case. Had plain...