Rosenberger v. Jones , 118 Mo. 559 ( 1893 )

Black, P. J.

The plaintiff brought this suit against Juliet A. Jones and Joseph C. McClure to compel specific performance of a contract for the sale of two lots in the town of Jonesburg. The plaintiff claims the right to specific performance on the following facts: In the spring of 1883, the defendant Juliet A. Jones sold to the defendant McClure the two lots .for $80 to be paid thereafter. McClure took possession and built a small dwelling house upon them, but failed to pay the purchase price. The plaintiff became the purchaser of the property at a sheriff’s sale made in 1887, upon an execution issued on a judgment rendered on the twenty-ninth of October, 1883, against McClure. After his purchase he tendered to Juliet A. Jones the $80 and interest and demanded a deed, which .she refused to execute, and hence this suit.

From the other evidence it appears Thomas Jones died in thef all of 1882. He leftra will whereby he devised this and other property to his wife, Juliet A. Jones. He also left two sons,- J. L. Jones and J. T. Jones, who lived with their mother, Juliet. McClure was a relative of the Jones family. J. L. Jones, acting as executor of Ms father’s will and as the agent of his mother, made the before mentioned sale of the lots to McClure. McClure took immediate possession .and built the small house on them, and resided therein. He had no means of his own, and, to enable him to pay for the house, J. L. Jones loaned him $250, being-money belonging to Mrs. Jones. At that time it was understood between McClure and J. L. Jones and Mrs. Jones that a deed should not be made to McClure until he paid the purchase price of the property and also the $250. The $250 were paid out by J. L. Jones in discharge of lumber and work bills, so that all of it went into the house. McClure was unable to pay for the property or to pay back the money borrowed, and he and J. T. Jones made a trade whereby McClure sold his contract to J. T. Jones, and the latter assumed and agreed to pay both debts. Pursuant to the agreement, McClure vacated the property and turned it over to J. T. Jones, who rented' it out to different persons. There is some conflict in the evidence as to the date when McClure left the property, but it is all to the effect that he left and turned over possession to J. T. Jones before the date of the judgment under which the plaintiff claims, that is to say, before the twenty-ninth of October, 1883. The sale by McClure to J. T. Jones was made with the knowledge and approval of Mrs. Jones. The above transactions between McClure and Mrs. Jones and J. L. and J. T. Jones were of an informal character and rested in parol.

Thus matters stood until the seventh of November, 1883, which was after the date of the judgment, when a Mr. Wood presented a bill of $157 for lumber used in the house, and threatened to enforce his demand by way of a mechanic’s lien. On that day McClure made his note for $80, payable to J. L. Jones, executor, and to Mrs. Jones, due in twelve months after date, and J. L. Jones, as executor, gave McClure a contract in writing agreeing to convey the lots to McClure on payment of the note, the deed to he made by him, as executor or by Mrs. Jones. At the same time, McClure, in writing, assigned this contract to • a Mr. Godfrey to secure $157 borrowed by McClure to payoff the Wood lumber bill. On the'first of February, 1884, McClure assigned the contract to J.- L. •Jones to secure the payment of the $250 and interest, and on the twenty-fifth of March, 1884, McClure, in writing, assigned the same contract to J. T. Jones, who agreed to pay the debts before mentioned, that is "to say, the $80, the $250, and the $157, and the interest due thereon. J. T. Jones paid to Godfrey the $157 and interest.

There is no equity in the , plaintiff’s case. It is true McClure purchased the lots, took possession, and built the house upon them. As matters thus stood he had a contract which he could have enforced, though it was not in writing. But the proof is clear and the fact stands undisputed that he could not pay for the lots'or refund the $250 borrowed of Mrs. Jones. Unable to pay these debts, he turned the property over to J. L. Jones, who assumed and agreed to pay them, and all this was done with the consent and approval of Mrs. Jones. There is no claim in the pleadings or in the evidence that this transaction was made in fraud of the creditors of McClure. The evidence shows that it was made in the utmost good faith. From the time McClure sold his claim, vacated the property, and turned over possession to J. T. Jones, he had no right •or interest in the property, and the plaintiff is in no better position, for by his purchase at the sheriff’s sale-he only acquired such interest as McClure had.

But it is said this transaction between McClure • and J. T. Jones is void, because within the statute of frauds. There is no doubt the statute of frauds applies-to equitable as well as legal estates, and as a rule-equitable estates can only be assigned by note or memorandum in writing. But as said by Judge Bliss in Grumley v. Webb, 48 Mo. 586, one who sells an-equitable interest in land, receives the consideration,, and yields possession, will not be permitted to say afterwards that the assignment was not in writing.. Here McClure sold his interest in the lots to J. T.. Jones, vacated the premises and put Jones in possession, on the faith of all which J ones had paid off at least one of the debts which he assumed. These facts constitute such a part performance as to take the parolsale out of the statute of frauds.

But there is another reason why the decree, which was for plaintiff, cannot stand. Mrs. Jones sold the lots to McClure, and then through her son advanced the $250 to McClure to pay for the house erected thereon. This money was advanced upon the further agreement and understanding that she was not to make a deed to McClure until he paid the purchase price and refunded the $250. She had the right to demand and receive payment of both amounts before making a deed. The .plaintiff does not offer or propose to pay the $250 and interest. He only proposes to pay the $80 and interest,, and this is all the decree requires him to do. To give him the relief prayed for on such terms is inequitable and unjust. It is true, as urged by the plaintiff, that the lots were sold to McClure at one time, and the advancement of the money to pay for the house was made at a later date, but both agreements were made and the $250 advanced long before the date of the judgment under which the plaintiff claims. Indeed the second agreement was but an addition to the first,, and they in reality became one contract. If McClure had not sold his equitable interest to J. T. Jones, the plaintiff would be entitled to a decree only upon paying both amounts and all the accrued interest thereon. He would be required to perform the whole, not simply a part, of the contract.

It is again insisted by the plaintiff that McClure had an interest in the property which became subject to the lien of the judgment because of the written contract for the purchase of the, lots which he received after the date of the judgment. This contract in writing executed by J. T. Jones to McClure, the assignment of it by McClure to Godfrey to secure the ' $157, the further assignment of it to J. L. Jones to secure the $250, and the out and out assignment of it to J. T. Jones for the consideration that the latter assumed and agreed to pay the said debts, did not change the rights of the parties. These transactions were all made fqr the purpose of reducing to writing the prior parol agreements, and to thereby enable the parties to borrow the $157 of Godfrey to discharge the lumber bill due to Wood. We cannot see that the rights of McClure in or to the property were enlarged in the least by the written contract of sale to ■him.

It is to be observed that J. T. Jones is not a party to this suit, but we deem it useless to remand the cause that he may be made a party and a further hearing had. The evidence shows clearly enough that plaintiff is entitled to no relief as against J. T. Jones. Indeed the plaintiff’s caséis as destitute of equity as was the plaintiff’s case in B%vrke v. Seely, 46 Mo. 334. The judgment is, therefore, reversed and the petition dismissed.

All concur.