Welch v. Bryan

• Decision Date: 31 January 1859
• Parties: WELCH, Respondent, v. BRYAN, Appellant.
• Court: Missouri Supreme Court

28 Mo. 30

WELCH, Respondent,

v.BRYAN, Appellant.

Supreme Court of Missouri.

January Term, 1859.

1. An agreement to purchase an improvement on public land made before the entry of such land in the land office will, if entered into before the entry of the land, support an action; if such agreement be made after the entry of the land, it will be void for want of consideration.

2. Where no cause of action is stated in a petition, the defect will not be cured by verdict; the objection may be taken by motion in arrest of judgment.

Appeal from Dent Circuit Court.

Pomeroy, Frazier & Waddell, for appellants.

I. The court erred in overruling the demurrer and motion in arrest. There was no evidence of any contract between the parties. A promise to pay for improvements, made after the entry of the land, is a nullity.

Wingo & Williams, for respondent.

I. This court will not interfere with the verdicts of juries on the ground that they are against the weight of evidence. (24 Mo. 97; Id. 216; 20 Mo. 312.)

RICHARDSON, Judge, delivered the opinion of the court.

The motion in arrest, in this case, presents the question, whether the petition was sufficient to support the judgment. It is stated in the petition that on or about the first of January, 1856, the plaintiff owned an improvement consisting of a dwelling-house, out-houses, and a field on a tract of land belonging to the United States; that the defendant entered the land on the 18th January, 1856, and that the “defendant at the time of said purchase and divers times since did undertake and faithfully promise to pay said plaintiff what said improvements were reasonably worth,” etc.

An agreement to purchase an improvement on public land before the land is entered will support an action; (Burns v. Hayden, 24 Mo. 215;) but a promise made after the land is entered is void for want of consideration, and it was therefore necessary that the petition should state whether the agreement relied on was made before or after the land was purchased from the United States. The plaintiff of course knew, and, as it would have given him no trouble to have stated the time, there is no excuse for omitting an averment so material. The allegation that the promise was made at the time of the entry hardly means that it was made in the land office when the defendant was in the act of paying the purchase money and receiving the receiver's certificate, but the ordinary meaning of such language is that the contract was made about the time of the entry, either before or after, but whether at the one time or the other the plaintiff did not commit himself, and therein failed to state an...