| Mo. | Jun 20, 1892
On the first of January, 1887, the defendant, Judith I. Bakewell, being the owner to her separate use of an eighty-acre tract of land in Jefferson county, Missouri, through her husband, acting as her agent, sold the same to plaintiffs for $1,200, $200 of which was paid in cash, and for the remainder plaintiffs executed ten promissory notes of that date, each for the sum of $100, payable with interest at the rate of eight per cent., one on the first day of January of each successive year thereafter for ten years; and thereupon received a deed from the said Judith and husband, and to secure the payment of said promissory notes the plaintiffs executed and delivered to her a deed of trust upon the land.
This action is brought to cancel said promissory notes and for the return of the cash payment upon the ground of fraud, with tender and deposit of a proper deed of reconveyance. The court found the issues for the plaintiffs, enjoined the collection of the notes, decreed their cancellation, and the delivery of the deed to the defendants; but refused to decree the return of the cash payment upon the ground of the occupation of the premises for a time by the plaintiffs, and.that some timber had been taken therefrom by them. The defendants appealed.
The only question in the case is, whether the finding of the chancellor is supported by the evidence. The trade was negotiated by the husband. It appears pretty satisfactorily from the evidence that the land
Nearen testified in substance that there were three or four inches of snow on the ground at the time; that he could not tell the character of the soil and knew nothing about it; that Bakewell represented the soil and the timber to be good; that he pointed out to him forty acres under fence and in cultivation which he said was upon the tract, and that the whole tract was susceptible of cultivation; that he took him to a spring and said it never went dry, affording plenty of water for the place the year round. After learning Bakewell’s terms, Nearen went home, and some correspondence by letter then passed between them, which finally. resulted in Bakewell visiting Nearen at his home in Illinois about the first of J anuary, 1887, where he again made similar representations to Nearen and his wife in the presence of another witness about the land, in substance, that the land was all tillable and no rocks on it; that if
Mrs. Nearen testified:. “I knew nothing about the property and had never been in Missouri. Bakewell came to our house about the first of January, 1887, and staid two days with us; was there on Sunday. He was bragging about Missouri. I told him that I had heard it was very rocky down there, and he said if we could find a rock on the eighty acres as large as his head he would make us a deed to the land. He said it was all good for cultivation and well watered; that there were forty acres of land in cultivation on it and a never-failing spring. This was on Sunday. After we moved down and found out about the land, I went to Mr. and Mrs. Bakewell to take the land back. This was in the summer, sometime. I asked Bakewell what he had told us such a story for and asked him to take the land back, and told him he might keep the $200 we had paid him on it. I was interested in the purchase of the land with my husband, and furnished some of the money we had paid. I had some money of my own. I believed what Bakewell said about the land or I would not have agreed to buy it.”
Elisha Derbin testified: “I live in St. Clair county, Illinois. I am acquainted with Joseph B. Bakewell and John C. Nearen and wife. I was at John C.Nearen’s house in St. Clair county, Illinois, about the first of January, 1887, and met Mr. Bakewell there. I had never seen him before, but met him afterwards in Jefferson county, Missouri. He was talking to Mrs. Nearen on the occasion of my seeing him at Mr. Nearen’s house in January, 1887, about the tract of
John J. Bakewell was the only witness who testified in behalf of the defendants. The substance of his evidence in regard to his representations to Nearen at the time he showed him the land was (that there was no snow on the ground-; it was raining and snowing, •and the snow melted as fast as it fell) that he showed Nearen the land and told him he did not know how much of the fields in cultivation were on the tract; that he did not know where the line ran; that he did not tell him there was forty acres in cultivation, and did not tell him there was a never-failing spring on the land, but showed him the spring that was there. He said nothing in his evidence in regard to the representations testified to by the plaintiff as having been made by him to Nearen and his wife in Illinois.
In the spring of 1887, Nearen moved' with his family to a place near by, that he had rented of Bake-well that had a house on it, for the purpose of improving and cultivating the property he had bought, when he found out for the first time that the cultivated land that had been pointed out to him (except two or three acres) belonged to another man, and that in the tract there was not more than twelve acres in cultivation and not more than twenty susceptible of cultivation, owing to the broken and rocky character of the remainder. He found the timber scrubby, and in May the spring went dry. Dissatisfied with their purchase the plain
The foregoing presents the salient facts of this case, and is sufficient to show its complexion. After a careful consideration of the evidence, and a patient hearing of the oral argument of learned counsel, we are satisfied that the conclusion reached by the chancellor is sustained by the evidence.
The respondent complains of the decree, in that it did not give him back a part ,of his $200, since, upon the. most liberal estimate, the use of the land, and the. timber cut, could not have been worth more than $50' or $60; but as he ;did not appeal the decree will have to stand.
The^ judgment is affirmed.