Ficklin v. Stephenson
Supreme Court of Missouri
Appeal from Livingston Circuit Court. I. The defendants insist that the court below committed error in striking out the answers of defendants, and especially the amended answer of Stephenson & Maupin. On the part of Call & Clark it is insisted that as they have not the legal title, (it being in Stephenson & Maupin by virtue of mortgage,) they cannot perform what they would be required to do.
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Appeal from Livingston Circuit Court. I. The defendants insist that the court below committed error in striking out the answers of defendants, and especially the amended answer of Stephenson & Maupin. On the part of Call & Clark it is insisted that as they have not the legal title, (it being in Stephenson & Maupin by virtue of mortgage,) they cannot perform what they would be required to do. A fundamental doctrine of specific performance is, that the defendant must be able to do what he is asked to perform. (See Ad. Eq. 249 & 250; 2 Sto. Eq. 742 & 769.) On the part of Stephenson & Maupin it…
1Opinion of the CourtDryden, Judge
As appears from the petition, Call and Clark, two of the defendants, sold to the plaintiffs, Ficklin and Ficklin, for the price of five thousand dollars, paid in hand, certain town lots in the town of Chillicothe, in this State, and by their obligation in writing bearing date the 24th of March, 1859, bound themselves to convey the property by a good and sufficient deed to the plaintiffs within twelve months thereafter. It also appears from the petition that the defendants Call & Clark afterwards, on the 10th of May, 1859, made a conveyance of the major part of the property they had sold to…
2Cited by1 opinion
- Rickard v. DorseyMissouri Court of Appeals · 1924