240 Mo. 552 | Mo. | 1912
This is a suit in equity to annul a deed made by plaintiff conveying her one-fifth interest in 538 acres of land in Jasper county to defendant Carter, on the ground that it was obtained by fraud, pnd to annul also a deed from Carter conveying the same interest to defendant Byrd, on the ground that it was without consideration and made to further the fraudulent purpose by which defendant Carter obtained the deed from plaintiff. Plaintiff tenders back the purchase money paid her by Carter and prays an account of rents and profits. Defendant Carter’s answer was a general denial; defendant Byrd’s answer
The 538 acres of land were owned by Washington G. Carter, who died in 1874, leaving his widow and six children his heirs, four sons, George, S. E., A. G., and William, and two daughters, Mary, the plaintiff, and Laura; George died sometime in the eighties, never married; the widow died in 1887; the five surviving children, three sons and two daughters, thus inherited the land. The plaintiff was four years old when her father died; she lived with her mother and the family of children on the farm until after the mother’s death. In 1890 plaintiff went to live with her married sister, Laura Miller, in the then Territory, now State of Washington, where she lived for a few years and was married and went with her husband, William M. Leslie, to Alaska, where she has ever since resided and where she was residing-when the transactions complained of in her petition occurred. After the plaintiff left Missouri, and went to Washington and thence to Alaska, her brother A. G. Carter, until his death, which occurred in 1903, acted as her agent, collected her share of the rents • and sent the same to her; after his death the-defendant Carter performed that office for her. The land lies in the lead and zinc mining district of Jasper county; there had been some mills and mining on this land during the above period, but the mining had not been a success; still there were prospects and the market value of the land fluctuated as those prospects brightened or faded. November 15, 1905, defendant Carter wrote the plaintiff offering her $5000 for her one-fifth interest in the land; the contents of the letter will be more particularly referred to again herein. December 9, 1905, plaintiff wrote a letter of that date accepting the offer
After the plaintiff left the home in which she had been reared, and went to Washington and thence to Alaska, she had been absent from the State, except a short visit in 1895, for fifteen years, and during that time she knew nothing of the property or its condition except through letters from her two brothers, A. Gr. Carter while he lived, and S. E. Carter, the defendant, afterwards. The letters from defendant Carter to plaintiff, and from her to him, are of the most affectionate character; the writers seem, though so long separated, to have never lost interest in each other or to have ceased their love as brother and sister. The letters though nQt models of literature are models of fraternal love, and the business features that necessarily come into the letters, when they relate to business, show only a desire to promote the welfare of each other. The letters are altogether too long and numerous to insert all of them in this opinion, .but such is our estimate of them. A. Gr. Carter looked after the plaintiff’s business affairs while he lived and we are not concerned with that, but it is the affairs of
In 1890 the plaintiff, her brother William and sister Laura, executed a mining lease for fifteen years to their brothers A. Gr. and S. E. Carter, and under that lease the two latter made several subleases, but the operations had not proven very successful. October .20, 1905, defendant Carter wrote plaintiff, sending her a deed to be executed by her extending the lease for ten years, which she promptly executed and returned. In his letter of November 15, 1905, he thanked her for her prompt action in executing and returning the extended lease, and took occasion to say that he did not have at that time as much hope of selling the land as he had had, because the company that thought of buying had a heavy task in the matter of drainage, and the company that was there before said they had lost $150,000, and he said he believed those figures were about right. The heirs had for several years been trying to sell the land; the negotiations being conducted by A. G-. and S. E. Carter while the former lived and by the latter after the death of the former. In 1903, an option had been granted to one Hunter to purchase the whole tract for $81,000, but that failed.
In November, 1904, S. E. Carter conducted negotiations which led to an option for the sale of the land at a price which was to realize to each heir $10,760; the deeds were to be made to Charles A. Byrd through whom, for convenience, the title was to pass, if the sale should be consummated. Accordingly on November 30, 1904, Carter wrote the plaintiff inclosing the draft of a deed to be executed for her and her husband, conveying her one-fifth of the land. The deed was to be deposited in a bank in Webb City in escrow to be delivered when the price was paid. In the letter he said: “I have sent a similar -deed to all of the children. I have what I think is a good chance to dispose of the
On the question of fraudulent concealment and misrepresentations there was a great deal of testimony relating chiefly to the condition of the property in the way of mining and mining prospects. On the' part of the plaintiff there was testimony tending to show that in the fall of 1905, at the time the defendant Carter made his offer of $5000 to plaintiff for her interest, there were on the land three or four mills completed or in course of construction, several shafts being sunken, and much drilling with encouraging prospects, and the testimony on the part of the defendant did not diminish these works, but tended to show that they were constructed in the spring of 1906. One witness for the plaintiff testified that in a conversation with Carter in the fall of 1905, the latter said the land was worth $275,000. That witness also testified to the erection of mills, sinking of shafts and drills on the property-at that time. An effort was made to impeach this witness, several testifying that his reputation for veracity was not good. But there were several other witnesses against whom no impeachment was attempted, who testified that the land was worth at that time from $250 to $500 an acre. Witnesses for defendant testified that it was worth $100 or $150 an
June 5, 1905, plaintiff wrote her brother that her husband was in some trouble, that their money was tied up and they needed $2500, and asked him to lend her that amount; he very promptly complied with the request. July 9, 1905, she wrote enclosing the note of herself and husband for the money so loaned them and in the letter she asks if he thinks he will be able to sell the place that year, saying she hoped it could be sold “because it would be so much better for us all before any more of us passes away.” October 21, 1905, she wrote inclosing “$500, part payment of the $2500 loan, and referred to his ldndness in helping them over a bad place, and again expressed the hope that he would be able to sell the place. We quote from her letter to show the kind sentiment she entertained for her brother and her interest in the affairs of the family. After discussing the business relating to the loan and the part payment, she went on in that letter to say:
“I think you do yourself an injustice when you say you are a poor hand to write you certainly a most interesting letter you must have enjoyed yourselves while in the mountains this summer I think I should*564 enjoy the praries I have seen nothing bnt mountains for so long.
“I’m sending you a pansy, I picked from my garden today so you can see it isn’t so wintry in the vn ev flowers and hardy vegetables do very well pansies and Asters last the longest.
“Is Bill dissatisfyed where he is liveing since they lost their babie? He owns the farm dosent he? I don’t think Belle ever liked the old home place very well I hope it can be sold before a great deal has to be laid out on it. I had so hoped something could be done before that deed expired but it can stand just as it is cant it without any change.
‘ ‘ The children and I are ■ alone as usual I stay here while Wm is away on account of the children being in school, schools are very good in all the incorporated towns of Alaska.
“I must close for this time with best love to Mahala and all the rest of the family yourself included
“I remain as every your
“Affectinate Sister
Mary C. Leslie.”
It was in answer to that letter that defendant Carter wrote proposing to buy the plaintiff’s interest for $5000. His letter making the offer is such an important feature in this case that we are forced to copy it in full, literally if possible.
“November 15, 1905, Mary E. Leslie. Dear Sister I received your ever welcom, Letter of Oct. 23th also $500.00 and $18.00 as interest which, I have credited on your, note now, Mary, I did not kneed this Money at preasant and you kneed not weary about the remainder for i will let you know in plenty of time if i kneed it I was indeed sorrow to hear that every thing was not going as pleasant as hoped for I hope things may turn more favorable to you and your family and that William will succeed favorable to him in his Litigation. Mary you' have now idea how i appre
now Mary I will make you this offer for your part in the old home if you want to take it I will give you five thousand Dollars $5000.00 then I can possible make arrangements to sell in small tracks if I buy Billeys part I am not advising you to do this but it is all that I think I can possible give. I will send description of Land so you can execute if you desire and send to webb city Bank and instruct them to deliver to me when the money is at your credit this would make $25000.00 for the track quite a little sum it may be worth more after a while or it may be a great deal less if you conclude to do this let me know soon.”
December 9, 1905, the plaintiff wrote her answer to that letter, the first paragraph of which was:
“My dear Brother: Your letter of Nov. 15th has been before me for a couple of weeks and after some consideration and several sleepless nights I concluded to accept your offer. I hated awfully to sell what has always been such a fond memory to me but I know all things must change with time and it seemed the best to us all and you offer was generous for an individual although less than half what we had hoped to get but life is made up of disappointments. I hope it will be a successful investment for you and I’m sure it will*567 be Brother used to say he would rather trust your judgment than any one he ever knew.”
She then goes on to say that she has forwarded the deed as he directed, and asks him to invest the money for her as she has such confidence in his judgment.
There is a great deal more of the letter correspondence, but the above is a sufficient sample of the whole.
I. Before taking up the evidence relating to the defenses made by the answer of defendant Byrd we will consider the evidence bearing on the questions of betrayal of confidence and fraudulent concealment of material facts.
It would be difficult to imagine a ease of greater trust and confidence. Here was a sister who, following the fortunes of her husband, had left the home of her childhood and -youth and gone to a far away land, trusting all that she owned to her brothers, for whom, as her letters show, she entertained strong affection. When one brother died her affairs came exclusively into the care of the other, who assumed that agency and conducted it for two years before the transaction now complained of. In the exercise of that agency he not only collected the little rents and royalties belonging to her, but was active in his efforts to sell her interest in the property in connection with that of the other heirs. His business letters to her were not merely letters of business but letters of brotherly love, and in those letters he professed to give her all the information he had affecting the value of the property, and until the last year of his agency, 1905, the information seems to have been correct. But in November, 1905, when he wrote the plaintiff offering to give her $5000 for her interest, the evidence shows that the mining prospects' which gave value to the property were brighter than they had ever been, but he failed to give her that information.
II. The next question is, was defendant Byrd an innocent purchaser for value? There was a great deal of evidence on that issue which we will not attempt to compress into this opinion, but will only give its general character and our conclusions drawn from it.
In 1904, S. E. Carter negotiated a sale to be made of the whole property by which each heir was to receive $10,760 for his or her share, and deeds to carry that .proposed sale into effect were executed by each of the heirs and deposited in a bank in escrow. Those deeds were all made to defendant Byrd; he was not to be the real purchaser, but was selected by Carter as a convenient holder of the title, which he was to convey to the real purchaser when the proposed sale should be executed. That sale was not effected and the deeds-in escrow were ’withdrawn from the bank.
In February, 1906, Carter, then holding title to three-fifths interests, his own and those of his two sisters, executed a deed conveying to defendant Byrd those three-fifths, for which Byrd executed his promissory note for $32,280, and about the same .time Byrd acquired the title to the interest of William Carter and that of the widow and heir of George Carter deceased, paying for each of those interests $10,760. The good faith of the deed from Carter to Byrd is challenged, and the good faith in taking the title to the other two interests in Byrd’s name is also challenged; it being contended that the one from Carter to Byrd was without consideration, and that Carter was the real purchaser of the two others’ interests.
Byrd was S. E Carter’s son-in-law; he was not a man of considerable property. Until shortly before the transaction complained of he had lived on a farm of 114 acres belonging to his father-in-law, which he-
Our conclusion from the evidence is that Byrd has not sustained his plea of innocent purchaser for value.
III. It is claimed by defendants that the plaintiff has been guilty of laches. The deed was obtained from her in December, 1904; this suit was begun in May,
There is another answer to this plea of laches. The conduct of defendant Carter was such as to allay suspicion.
In January, 1906, defendant Carter wrote the plaintiff about the suit Laura had brought against him, complaining bitterly of its injustice, and, attributing it to the influence of lawyers, asking her to try and recall everything that she had ever heard Laura’s husband «ay in reference to the value of the property and the mining shafts that were there in 1897. It was a letter full of expressions of affection for Laura and regret that she had fallen into the hands of the “gang of lawyers” which would result in her financial ruin. Plaintiff answered the letter assuring him of her sympathy and assistance. Those letters show the confi
The defense of laches is not sustained.
a. It is claimed that Byrd should have been credited with the value of his services in improving and developing the property. It was shown that the property had advanced in value after the defendants had obtained the deed from plaintiff, but that increase in value was owing chiefly, if not entirely, to the development of its minerals through the operation of the mines and that was the'work of the lessees holding mining leases. It was doubtless true that the leases were made through the activity of the defendants, but it would have been mere conjecture if the court had undertaken to estimate the value of Byrd’s services based on the increased value of the property. Besides, what he did was in his own interest or that of his father-in-law, and they were in possession of the plaintiff’s property in their own wrong. It was not error not to allow that item.
b. Byrd obtained a judgment against the Webb City Bank for $10,469.92, for a bonus on a lease of the premises, and the court decreed that plaintiff was entitled to one-tenth of that judgment when collected less costs and'expenses for attorney’s fees. We find no error in that.
c. The court found that defendants had received from minerals taken from the land of plaintiff the sum of $2212.85, which sum she was entitled to deduct from the $5000-paid her as purchase money which she had tendered back in her petition. But the court did not allow defendants interest on that $5000, as it should have done, from the date of the payment to her to the date of filing the suit. The exact date when the $5000 was paid does not appear; the deed from plaintiff to Carter is dated December 9, 1905, it was recorded February 5,1906, perhaps it would not be far wrong to take Jan