Maybee v. Moore

Black, J. — This is a suit against Moore and Jordan, and has for its object the specific performance of a contract whereby defendant Jordan, through his authorized agents, sold the land in question to • the plaintiff. By the contract of sale plaintiff was to have a warranty deed, and was to pay four hundred dollars therefor, one hundred dollars on obtaining the deed and possession, and the remainder in deferred payments secured by deed of trust on the land. Besides a deed made by Jordan to plaintiff and left with his agents, the contract is evidenced by a receipt of the agents for a part of the purchase price, dated in June, 1881, and various letters from Jordan to them, in which they are also instructed to have Moore, who was in possession under claim of lease, ejected, to the end that the contract with plaintiff might be completed. In January, 1883, Jordan conveyed the land to Moore for a consideration of four hundred and twenty-five dollars, and the evidence is conclusive that the latter had full knowledge of the former contract with plaintiff. The claim now made, that the contract between Jordan and plaintiff was not evidenced by writing and signed as required by the statute of frauds, is not open for our consideration. The contract is pleaded in the petition, admitted by the answer of Moore, and not denied by Jordan, and no such defence is made. Where the plaintiff pleads a contract the law presumes its validity, and if the defendant objects to it because it is void by reason of a non-compliance with the statute, he must make the defence in his answer, otherwise the defence is waived, Gardner v. Armstrong, 31 Mo. 535; Sherwood v. Saxton, 63 Mo. 78. The defendant, Moore, having purchased, Avith [344] knowledge of the prior sale to plaintiff, is not a purchaser in good faith. He stands in no better position than Jordan would have occupied, if the conveyance to Moore had not been made. Farrar v. Patton, 20 Mo. 81. Plaintiff was at all times ready and anxious to complete the transaction according to the terms of the contract, and the decree for specific performance is manifestly right, and is affirmed. All concur.