140 Mo. 270 | Mo. | 1897
This is a suit in equity by plaintiff to rescind a contract for the purchase of one hundred and ten acres of land lying in Cedar county, for which plaintiff agreed to pay defendant $1,650, of which sum $850 was paid in cash and plaintiff gave his note for $800, and executed a deed of trust on all of said land to secure it. Defendant gave plaintiff a warranty deed with the usual covenants to all of the land.
The petition, after averring the foregoing facts, avers that the defendant represented to plaintiff that his title to the farm was . clear, and was free from in-cumbrances, which representations plaintiff at the time believed and relied upon, but which were false and fraudulent and made with the knowledge that they were so by defendant, and for the purpose of deceiving and defrauding plaintiff; that defendant-represented that he bought forty acres of said land from Cedar county as swamp land and had a deed from said county which was the only conveyance affecting the title to said forty acres, concealing from plaintiff that John M. Cook was the legal owner thereof; that relying upon the false and fraudulent representations in relation to the title to said forty acres, plaintiff neither demanded nor received an abstract of title therefor, but did demand and receive an abstract for the remainder of seventy acres; that plaintiff did’ not pay the note for
The answer admits the sale, warranty deed to plaintiff, payment of the $850 and the execution of the $800 note for balance of purchase money and deed of trust to secure the same; -the sale thei’eunder, and purchase of all the land by defendant. Alleges that when he sold he had been in possession since March, 1883, and delivered possession of the land to plaintiff which plaintiff held without adverse claim thereto; that at the , time he sold he was claiming title under deeds to all of said land believing he was the owner in fee and had good right to convey and believes so yet. Plaintiff replied by genei’al denial.
The evidence consists of the admissions in the answer and the following oral testimony. Plaintiff testified that he purchased the land directly from the defendant in the office of Whitsett & Hightower, real estate agents at Jerico; that when he inquired about the title defendant told him he had bought the “40 acre tract” at a bona fide sale of swamp lands by Cedar county; that the title was good, and at the same time
Defendant testified that he had not agreed to furnish an abstract to any of the land, but when the deed came with his wife’s acknowledgment the plaintiff then demanded an abstract and he instructed Whitsett to get an abstract to all the land but when the abstract came from Stockton for some unaccountable reason the forty acres was not included. He says: “Ithen gave him the deed that the county had given me.” Told him it was swamp land, and that his deed was the only conveyance of it.
A patent from the United States to John M. Cook, Jr., to the “40 acre tract” was read in evidence bearing date May 1, 1868. It was shown that John M. Cook, Jr., hauled the logs to build him a house on this
The circuit court found the issue for plaintiff and decreed a rescission and a return of the $850, and awarded plaintiff a vendee’s lien on the “70 acre tract” and execution against the same. Defendant appeals. A number of errors are assigned for reversal. We will consider them in their order.
I. It is assumed that the court found defendant was guilty of a fraudulent representation upon a mere expression of an honest opinion by defendant that he had a good title when in fact he had none.. Of course, no one questions that a mere expression of an opinion that one’s title is goodwill not amount to a fraud, even if it should turn out worthless, but it is equally well settled that a statement of a material fact, for the purpose of inducing another to act upon it, implies that
Was defendant’s statement a mere opinion that his title was good? Clearly not. On the contrary, when plaintiff came to ask about the title and assured defendant he did not want the land at any price if the title was not good, defendant produces a deed from the county and stated that this deed zeas the only conveyance of the land. A statement well calculated to mislead an unprofessional man. It was a most plausible excuse for not producing an abstract, as an abstract with one conveyance would seem a useless expense when that conveyance was produced. This deed being good upon its face, plaintiff readily accepted the explanation as sufficient. But the statement that this was swamp land was not true, neither was it true that an abstract would not show another conveyance, but would have disclosed that the United States had patented this land to a man by the name of John M. Cook, and the plat books of original entry, which are consulted by all prudent abstracters, would have shown'that the land had been éntered in 1868. A motive is not hard to discern for the failure or refusal to furnish the abstract to this “40 acre tract,” which Mr. Whitsett and plaintiff both testified defendant objected to furnishing. Defendant, it is true, says he directed Mr. Whitsett to secure the abstract to the whole farm, but the trial court evidently thought the evidence preponderated largely against
II. Again it is said plaintiff did not rely upon defendant’s statement; that the evidence of the title to-the “40 acre tract” was before both parties; that both-had the same opportunities to judge of the title, andas, no confidential relation existed they traded at arm’s length. But it is apparent, we think, that defendant omits a controlling fact in assuming that defendant and plaintiff stood upon equal ground in coming to a. conclusion as to the title, merely because he furnished plaintiff the swamp land deed to examine. The validity of that title depended upon the fact that the lands w,ere-swamp lands and that the county had sold them, and that no other conveyance of these lands had ever been made. The deed was in form sufficient, which plaintiff knew, but its efficacy to pass a good title depended upon the positive assertion of defendant that this was the only conveyance of this land as to which plaintiff knew nothing, but defendant knew plaintiff was relying upon the truth of his representation which turned out to be false, as the United States had previously patented it to Cook. They occupied widely different positions when they formed their opinions as to the title. Plaintiff, relying upon the statement of defendant that there was no other conveyance, and. that it was.
The defendant having induced the plaintiff to-abstain from further investigation of the title of the forty acres, by the artful representation that there had been but one conveyance of this land, coupled with the-exhibition of a deed which corroborated his statement, is in no condition to assert that plaintiff was negligent in not looking further nor to complain that plaintiff believed his statement.
III. But it is said that' granting there was a misrepresentation of the title and that plaintiff paid his money upon the faith of its truth, still, as the contract was executed, there can be no rescission of the agreement but that plaintiff is remitted to his action upon the covenants of his deed. To sustain this position we are cited to Hart v. Railroad, 65 Mo. 509; Mitchell v.
The circuit court found defendant was knowingly guilty of actual fraud and decreed a rescission and we think the evidence sustains the finding and the decree is affirmed.