200 Mo. App. 127 | Mo. Ct. App. | 1918
— This is an action for money had and received, the object being to recover back money paid by plaintiff to defendant under a mistake. The plaintiff had judgment and the defendant appeals assigning numerous errors. It will be quite impossible within the confines of an ordinary opinion to state all the facts and discuss in detail the twenty odd distinct propositions of law, many of them with several subdivisions, contained in appellant’s able and painstaking briefs. We have examined these briefs with care but can only discuss such phases of the case as seem to us most important.
Objection was duly made and defendant insists that the petition fails to state a cause of action. The material allegations (which will serve as a statement of facts also) are these: Thos. E. Hendrix died intes
The objection to the petition stating these facts is that plaintiff could only recover on a mutual mistake of fact and that the allegations as to the parties being ignorant as to the ownership of the land is an allegation of ignorance as to a matter of law. We shall see when we come to discuss the evidence, in connection with this allegation, that ownership is a mixed question of law and fact or rather is a fact based on and resulting from the law (Clark v. Carter, 234 Mo. 90, 100, 107, 136 S. W. 310), and is sufficient to uphold an allegation of a mistake of fact. The allegation that each party was ignorant of the fact that plaintiff was the sole owner of the land when making the deal and that the money was paid “through mutual mistake of fact” are sufficient to state a cause of action to recover back money paid through mutual mistake. This is es-
The evidence shows that when plaintiff’s husband died she and deceased’s brother were appointed administrators of the husband’s estate and jointly administered on same. This estate consisted of about $80,000 in personal property and the homestead of about five acres in the town of Bois dArc (in addition to the eighty acres in question which was really not a part of the estate). It is conceded that this eighty acres of land was conveyed by a deed to the husband and wife jointly and that the wife took full title to the same by suvivorship. [Frost v. Frost, 200 Mo. 474, 481, 98 S. W. 527; Hume v. Hopkins, 140 Mo. 65, 72, 41 S. W. 784.] Notwithstanding this fact, of which all the parties were ignorant, the administrator without looking at the deed inventoried this land as belonging to the estate of Thos. E. Hendrix. The estate was then administered and settlement made on the theory that the wife, there being no children or descendants, was entitled to one-half the estate and the collateral, heirs took the other half, the defendant taking one-ninth of such half. On this basis the collaterial inheritance tax was assessed and paid. The rent from this eighty acres was carried into the assets of the estate. There were few if any debts to be paid, the expenses of administration were not large and nearly all the personalty was distributed in kind at the final settlement. Nothing was done in the probate court as to the land except to place it on the inventory and charge the rent received as assets of the estate.
On final settlement of the estate the distribution of the property in kind was looked after by the plaintiff’s co-administrator, the defendant’s brother and himself a distributee, along with the attorney for the estate. The parties, other than plaintiff and one other, met.together at the attorney’s office and reached the agreement in this respect, called by defendant a “family settlement.” There was no dispute as the amount each was to receive and very little as to what specific
That money received under a mutual mistake of fact can be recovered in an action at law for money had and received must be conceded. [Miller v. Fire Brick Co., 139 Mo. App. 25, 33, 119 S. W. 976; Bone v. Friday, 180 Mo. App. 577, 167 S. W. 599; Norton v. Bohart, 105 Mo. 615, 629, 16 S. W. 598.] The defendant claims, however, that the mistake in this case was not mutual but unilateral on plaintiff’s part, the defendant merely making a quit-claim deed for whatever interest she might have in the land. The facts are, however, as both parties testified, that they both believed and acted under the belief that the land was owned by Thos. E. Hendrix at his death in fee instead of by him and his wife by the entirety and that it then descended under the statute of descents one-half to plaintiff as widow and one-half to his collateral heirs of which defendant was one. Defendant frankly admits that she believed she owned an undivided one-eighteenth of said land; that she sold same and received the money therefor in good faith and made her deed to convey that interest. To say otherwise would be to convict her of bad faith and intentional fraud.
It is no longer an open question in this State that, when one person sells land or a definite interest therein
Defendant lays much stress on plaintiff’s negligence in not investigating the title and then representing as administratrix by the inventory that the land belonged to the husband’s estate. The evidence is that she never saw the deed conveying the property to her and her husband and had no knowledge of the title further than that her husband bought and owned the land. "While the statute makes it the duty of the administrator to examine the deceased’s title papers, a failure to do so is no more than negligence — -shared in this case equally at least with defendant’s brother as co-administrator and whose interest like defendant was adverse to plaintiff. The authorities .are numerous that, though plaintiff’s mistake is due to negligence, yet when the mistake under which the money is paid is mutual, as it is here, such negligence in no way bars the recovery. In the leading case of Koontz v. Central National Bank, 51 Mo. 275, where plaintiff paid a draft drawn on another party without looking at it, the defendant having inadvertantly presented it to plaintiff,
The principle there adopted is that in order to make a mere agent personally liable for the return of money collected by mistake, the mistake must be both mutual and personal to the agent. The fact is also there stressed that the innocent agent had, without notice of the mistake, paid over the money collected to his principal and if compelled to pay same back to plaintiffs would be the loser. The court does not say, but strongly intimates, that, though the mistake was unilateral as to the agent, yet if the agent yet had the money on hand or had paid it to the principal after receiving notice of the mistake the plaintiff could recover even on such unilateral mistake. This is in accordance with the rule stated in Koontz v. Bank, 51 Mo. 275, 277: “The general rule undoubtedly is, that if a party, who pays money to an agent for the use of his principal, becomes entitled to recall it, he may, upon notice to the agent, recall it, provided the agent has not paid it over to the principal, and also provided no change has taken place in the situation of the agent since the payment to him, before such notice.” Since, as we have seen, it makes no difference as to the degree of negli
In this connection we will say that defendant’s belief that she owned an interest in this land was not
Nothing is suggested by way of estoppel against plaintiff except that, after plaintiff received the money for her supposed interest, she bought an automobile and spent it in a way that makes it a hardship for her to have to return it. Where the mistake is mutual, as we have seen, the absolute loss of it to defendant would not be a defense and certainly the manner of spending it for her own use cannot be a defense.
Nor do we think that there is any substance underlying the argument that the sale of this land was a part of a “family settlement.” That the sale of, the land occurred on the same day that the widow and heirs arranged for the distribution in kind of the personalty belonging to the estate, was a mere coincident rather than being an essential fact of one transaction. And the same is true of the fact that on that day the widow agreed to and did relinquish by quit-claim deed her homestead right in the town tract of land for $1,000. There was no dispute — nothing compromised — as to the real rights of any of the parties as to these matters. What interest each party had or supposed they had as to all these matters was conceded by all. The principal point of discussion was as to plaintiff’s right to a homestead in addition to one-half interest in the land. On this point defendant’s sister, equally interested with her, testified: “Yes, we were satisfied with it under the
The defendant asserts that the quit-claim deed alone determines the rights of the parties and that as there are no covenants of warranty the plaintiff assumed the risk of title. It is a sufficient answer to this that in the case of Clark v. Carter, 234 Mo. 90 and Griffith v. Townley, 69 Mo. 13. the purchaser took executor’s or administrator’s deeds without covenants of warranty and the doctrine of caveat emptor is more strictly implied in such sales than as between individuals. The court, however, set aside such sales as being based on mistake; and in the Clark case allowed the purchaser to recover back the money paid because of mutual mistake as to the title bought and sold. Land can only be conveyed by deed, and, if the purchaser can in any case recover back the purchase price paid because of mutual mistake, the deed must to that extent be avoided or disregarded and mutual mistake like fraud affords a basis for so doing. The doctrine that the grantee of a quit-claim deed takes with notice of preexisting equities or infirmities of title has no application to this case. The judgment of the trial court will therefore be affirmed.