83 Mo. App. 568 | Mo. Ct. App. | 1900
Plaintiffs owned the southeast quarter and southeast quarter of northeast quarter section 25, and north half of northeast quarter section 36,township 26,range 13, west, situated in Douglas county, Missouri, which was incumbered by a deed of trust for $1,000. Th© defendant owned a tract of land in Wright county, which was incumbered by a deed of trust for $2,400. F. W. Newkirk, a real
“Defendant further informs this court that he was unacquainted with the lines of said Douglas county place at the time he traded for it, that the lines had not been run out, to his knowledge, and he relied upon the statements of plaintiffs’ agent, Newkirk, who was at the time agent for plaintiffs, as to such boundaries. That said Newkirk took defendant to the lands in Douglas county, and showed it to him (this defendant) and showed him the boundary lines, and especially the line near a large spring of water, which was r,L-e only source of water supply on the farm, and showed*572 defendant and represented to defendant that said spring was on the lands defendant was to get of plaintiffs, and this defendant believed said statement, and was induced thereby to make said trade. That since this defendant made said trade and paid said $276.60 on his said $700 indebtedness to plaintiffs, and the said $55 taxes and costs as aforesaid the lines have been surveyed and said spring, and about four 'acres of rich bottom lands represented as aforesaid to belong to said tract of lands, belong to and are the property of the government, now taken up under the homestead laws of the United States, and this defendant, by reason of said false representations of said Newkirk, agent of plaintiffs as aforesaid, has been damaged in the sum of six hundred dollars. And by reason of the failure of plaintiffs to pay the taxes on said land, as per their agreement, defendant has been damaged in the sum.of fifty-five dollars. Defendant therefore asks that damages in the sum of six hundred and fifty-five dollars be awarded defendant, and that he have his costs so unjustly laid out and expended, and for such other further and general relief as to equity seems proper.”
The uncontradicted evidence is that Newkirk showed defendant the spring and some of the boundary lines and told him that the spring was on the land. The evidence is also that the spring and several acres of bottom lands (enclosed by a fence when defendant went with Newkirk to look at the land), did not belong to the tract, but was at the time government land, and had been taken by a homestead entry, after the trade between plaintiffs and defendant was made. The evidence is also that plaintiffs at no time gave Newkirk as thoir agent a description of the land, or made any representations to him, with reference to the location of the spring, or gave him any express authority to make any representations as to the boundaries of the land, or location of the spring; nor does it appear that Newkirk knew the boundaries of the land, or whether or not the spring was on
The issues were submitted to the court who made the following finding of facts, and rendered the following judgment: “The court, after being fully advised in the premises, finds that in the transaction or trade between plaintiffs and defendant, defendant agreed to pay plaintiffs the sum of seven hundred dollars as a difference in value of farms, and that defendant had, before the institution of this suit, paid part of said $700 leaving a balance, including interest from date of demand, the sum of four hundred and fifty dollars, and that the same was for a part of the purchase money of the following described lands in Douglas county, Mo., viz.: S. E. qr. and S. E. 1-4 N. E. qr. sec. 25, and N. 1-2 N. E. qr. sec. 36, all in township 26, range 13.
“And the court also finds that the plaintiffs fraudulently misrepresented the true lines of the above lands in such trade, and that he is damaged thereby in the sum of four hundred and fifty dollars.
“It is therefore considered and adjudged by the court that plaintiffs take nothing by reason of this action, and that they pay the Costs herein and that execution issue therefor.”
After an unavailing motion for ,á new trial, plaintiffs appealed.
There is not a line of testimony in the record that the plaintiffs personally made any representations whatever to defendant about the spring or its situation, or about the boundary lines of the land; nor is there a particle of testimony that they expressly authorized Newkirk their agent to make any representations as to the boundaries of the land, or the location of the spring. Unless, therefore, the repre
In the sale or exchange of a tract of land, it is usual and necessary that the seller point out to the prospective buyer the boundaries of the tract; that he exhibit the thing he offers for sale to the view and inspection of the prospective buyer. Newkirk undertook to do this very thing, and in doing so he represented that the spring and the four or five acres of bottom lands were inside the boundary lines and belonged to.the tract. Plaintiffs are bound by these representations. Morse v. Rathburn, 49 Mo. 91. Defendant relied upon these representations believing them to be true, and after seeing the land as it was shown him, made the exchange. These representations turned out to be untrue; they were false in fact, and the court found that they were fraudulent as well. The evidence to support the firiding that they were fraudulent, is that Newkirk made them without knowing them to be true, and on belief of their truth only, and that defendant acted upon them believing them to be true. These facts show such fraud in equity as would authorize a court to cancel the trade and set aside the con