Smith v. Smith

Dissenting opinion by

Kinney, J.

I cannot come to the same conclusion in this case, as have a majority of the court.

The bill alleges that the complainant redeemed the land by paying off to said Smith, Brothers, & Co., the whole amount of said judgment, with interest and costs, and that said amount so paid was received by them as the amount due on said judgment.

The answer utterly denies that said land was redeemed or anything paid by said complainant towards redeeming the same. This allegation in the bill, and peremptory denial in the answer, make the issue to be tried by the court.

As the answer is sworn to, the bill should be dismissed for the want of equity, unless sustained by the testimony of two witnesses, or one witness and corroborating circumstances, in which case (in the absence of testimony fortifying the answer,) the bill must be taken as true.

In support of the bill, Browning swears that in the summer of 1844, he called at the store of the defendants in St. Louis, and informed John Cavender, one of the defendants, that he was requested by the complainant to call and see him about a reconveyance of the land. Witness was under the impression that there ivas a small balance due upon the judgment on which the land was sold, and so informed Cavender, and asked him what the balance was, as he had money in his hands belonging to the complainant, and would pay it. Cavender then told the witness that the judgment had all been paid off and satisfied, but that he would not convey the land, until the amount of a certain note, which complainant had transferred to the firm of Smith, Brothers, & Co., was paid.

Leffler swears that he was present at the time referred to by Browning, and that Cavender told Browning that the judg*312raont against Smith bad been paid, and that Cavender said (in reply to a question by Browning, if said Smith was entitled to a deed), that the judgment was paid off; but that they did not intend to relinquish their claim against Smith, until they had paid a claim which Smith had transferred to them upon a man in Illinois, which had been dishonored. Here we have the admissions of Cavender, one of the firm, and the one to whom the deed had been made by Grimes, that the judgment upon which the land was sold had been paid and satisfied. The allegation in the bill that the judgment had been paid and satisfied, being thus sustained by two witnesses, I think it sufficiently corroborated to hold the defendants to proof of the responsive matter contained in the answer.

But the answer sets up new matter extraneous and irresponsive to the charge in the bill, which I think has had great influence upon the court, in the decision which has been made. The answer states that one Samuel Smith paid to the defendants $218, 28, which was passed to his credit, and that there was an understanding and agreement that when he paid over to them the residue that might be upon said judgment, with costs and interest, and the additional sum of $400, which was due defendants upon a dishonored note, that they would convey the land to Samuel Smith, in trust for the wife and children of the complainant. In another part of the answer, the defendants state that this money had been credited by them to said Samuel Smith ; that it was the individual money of said Samuel, and that Jeremiah was not known in the transaction. That the money has been paid over to the administrator of said Samuel, since deceased, and that no portion of it ever was applied towards paying off said judgment.

This portion of the answer, I think not only irresponsive to the bill, but proves conclusively that the money of Samuel Smith was not appropriated towards paying the judgment, nor received for that purpose, and consequently Cavender could not be understood as having referred to this money in his conversation with Browning and Leffler, with which the judgment had been paid off and satisfied. This conclusion is also dedu*313cible from the fact, that the amount collected for Samuel Smith was not sufficient to pay the judgment, and Cavender having told Browning that the judgment was satisfied, no reference could have been had to the money in defendant’s hands belonging to said Samuel Smith. From the deposition of Browning, taken by the defendants, it appears that in the same conversation, Cavender told witness to inform the administrator of Samuel Smith of the amount of money in their hands belong • ing to the estate, subject to his order, and in pursuance of this information the money was subsequently drawn by the administrator: all of which makes it perfectly certain that the judgment was not paid with this money, and excludes all presumption that Cavender had any reference to its having been paid in that manner.

It appears to me clear then : 1. That the judgment had been satisfied by Smith, although after the time of redemption had expired. That the defendants are stopped from saying that it was not paid in time, and are bound to convey the land.

2. That if the complainant had satisfied and paid off the judgment, the defendants could not as a condition precedent to the conveyance, require the payment of another claim, unless he can prove that to have been the condition upon which the conveyance was to have been made. If these positions are well taken, we are only left to the inquiry j was the judgment paidl Upon this point I do not desire any better testimony than the admission of Cavender himself, who states explicitly that the judgment was satisfied. This testimony is neither contradicted nor explained away. Supported by two witnesses, it neutralizes that portion of the answer denying payment, and the bill in that .particular must be taken as true. But my brother judges think that Cavender must have meant the payment of the judgment, by a sale of the land. This cannot possibly be a reasonable presumption, as Cavender only attached one condition to the conveyance, which was the payment of the dishonored claim. The judgment was some $250, and this I cannot think the defendants intended to *314give to complainant, and particularly as there is not any evidence showing Smith’s inability to pay the $400. And yet we are forced to this conclusion, and that the defendants would gratuitously surrender up the judgment, by presuming that Cavender meant that the judgment was paid by the sale of the land.

The plain import of the language, u that the judgment was paid off and satisfied,” appears to me to convey the idea, not by a sale of the land to the defendants but by actual payment in the ordinary acceptation and meaning of the word. The facts of the case, and the language of Cavender, fasten the conviction upon my mind that the judgment had been paid independent of and subsequent to the sale of the land. A different conclusion appears to be entirely unauthorized by the testimony.

But it is said that the complainant does not specify in his bill how he paid this judgment. I was not aware that there was but one mode of payment known to the law, and if the complainant states, as he has in his bill, that he paid off the judgment, it will be presumed that he paid it in the currency of the country. Even a want of particularity in the bill ought not to bar the door of equity, if the complainant is otherwise entitled to it. In this case, it appears to me that the complainant has not only shown himself worthy of relief, but that injustice may be done by withholding the relief sought.