Devore v. Devore
Supreme Court of Missouri
Appeal from Gape Girardeau Circuit Court. — Hon. Henry Riley, Judge. (1) Before a party can avail himself of a payment he must plead it. This was not done. (2;/ If ■the plaintiff owes anyone on account of these payments it is the estate of William Devore, and not the defendant, and such indebtedness can not be set up by a party in his individual capacity. (3) The defendant’s answer is a general denial, yet he seems to rely upon the statute of frauds.
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Appeal from Gape Girardeau Circuit Court. — Hon. Henry Riley, Judge. (1) Before a party can avail himself of a payment he must plead it. This was not done. (2;/ If ■the plaintiff owes anyone on account of these payments it is the estate of William Devore, and not the defendant, and such indebtedness can not be set up by a party in his individual capacity. (3) The defendant’s answer is a general denial, yet he seems to rely upon the statute of frauds. A failure to plead the statute of fraud amounts to a waiver of that defense. Maybee v. Moore, 90 Mo. 340 (343); Sherwood v. Saxton, 63 Mo. 78;…
1Opinion of the CourtSheewood, J.
The object of plaintiff in instituting this suit was to have specific performance of a contract for the sale of land, or else damages for the failure to perform the contract, and for other and further relief.
The petition charges in substance the following:
First. The death of William Devore, the ancestor of the parties to this suit, and also the names of the children surviving.
Second. That William Devore died seized of the real estate in litigation as well as a considerable amount of personal property.
Third. The fact of the execution of a will and it being probated.
Fourth. An effort on. the…
2Cases cited1 opinion
- Boyd v. PaulSupreme Court of Missouri · 1894
3Cited by16 opinions
- Superior Oil & Gas Co. v. MehlinSupreme Court of Oklahoma · 1910
- State Ex Rel. Place v. BlandSupreme Court of Missouri · 1944
- Phillips v. HardenburgSupreme Court of Missouri · 1904
- Hillman v. AllenSupreme Court of Missouri · 1898
- Lumaghi v. AbtMissouri Court of Appeals · 1907
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