Grumley v. Webb, 48 Mo. 562 (1871)

Citation: Grumley v. Webb, 48 Mo. 562 (1871)
Parent Document: Grumley v. Webb, 48 Mo. 562 (1871)
Jurisdiction: Missouri (state)
Effective Date: 1871-10-15
Original Source: https://www.courtlistener.com/opinion/8046745/grumley-v-webb/ ↗
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As to the application of- the statute of frauds, the following is in substance the argument of counsel-:
.. Jqdge.,Currier.noticed none .of the authorities cited except the case of.Hughes v. Moore, That was. a suit at law to recover a.sum of money verbally agreed to be paid 'to plaintiff, first, as compensation for the loss of his equitable title; and, second, in lieu of all the damage done plaintiff by the misconduct of the defendant in depriving .plaintiff .of the title. The case' before.this court is not at law, but in equity; it.is not- to recover a sum of money, but to divest the title to real estate.
The opinion of Judge Bliss is short, and turns on this sentence : “ One who sells his equitable interest in land, receives the consideration and yields possession, will not be permitted to Say ■ afterward - that the assignment was-, not in. .writing;. or, .if the holder 1 of the equity surrenders to him who has the legal title, accepts- the consideration.and gives possession,- the contract is executed, ■ his equity is dead,- and no court-of equity could enforce it.” ■ ■
Undoubtedly, that is the law;-but-it-is not thé-law of .this-case, for the reason- that the main.-element of - the principle — -.to-wit, the transfer of-possession — is..-not in this -case.' No fine has ever pretended-that-Grumley. delivered possession to-Webb after March 7; 1865. Webb has held possession continuously ever since 1855. If the pretended purchaser is ,in possession before and at the time of the alleged contract, his continuing in possession amounts to nothing, and .is to be ascribed to his. original possession and not, to the alleged, contract.. (Price v. Hart, 29 Mo. 173; Young v. Montgomery, 28. Mo. 605; Bean. v. Valle, 2 Mo. 109 ; Poag v. Sandifer, 5 Rich. Eq. 181; Aitkin v. Young, 12 Penn. St. 15-24 ; Armstrong v. Kattenhorn, 11 Ohio, 271; Brennan v. Bolton, 2 Drew. & W. 355; Jones v. Peterman, 3 Serg. & R. 543 ; Phillips v. Thompson, 1 Johns. Ch. 149; Frame v. Dawson, 14 Ves. 387; Wills v. Stradling, 3 Ves. 381.)
Again, the mere payment of purchase, money amounts to nothing. (Purcell v. Miner, 4 Wall. 517; Price v. Hart, 29 Mo. 173 ; Goucher v. Martin, 9 Watts, 107; Frame v. Dawson, 14 Ves. 387; Armstrong v. Kattenhorn, 11 Ohio, 271 ; Church of the Advent v. Farrow, 7,Rich. Eq. 383.).
Further, no improvements have been made, in part' performance of the contract. The.only improvement made was in.1864, a year before the making of. .the alleged agreement. The act of part performance must result unequivocally from the agreement, and be such as would not have taken place but for the agreement. (Purcell v. Miner, 4 Wall. 517; Moore v. Small, 19 Penn. St. 461; Osborne v. Phelps, 19 Conn. 68; Woods v. Farmare, 10 Watts, 195 et seq.; McMurtrie v. Bennett, Harr. Ch. 124; Wack v. Sorber, 2 Whart. 390.)
Einally, to take the case out of the.statute on the plea of part performance, the contract itself must be-established by “indubitable proof” in “every part.” (Purcell v. Miner, supra, and other authorities above, cited.)
. The court also overlooked this point made by us. At the time of the settlement, March. 7, 1865,-.the only .matters in controversy were the judgment for the rents, of .the old lease, $11,500, and the $7,000 suit .for the value of the buildings. Had both of these been..settled.-for the $6,500 it would not have'affected the present suit for.the new lease, because- the buildings are not co-extensive with the new lease ; they are merely .an incident of the lease. . The bricks were, worth but $500, the lease not less than $12,000.
Bliss, Judge,
delivered the opinion of the court;
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