150 Mo. 606 | Mo. | 1899
This is an action of ejectment to recover 60 acres of land in Grundy county. The petition is in the usual form. The answer admits that defendants are in possession and sets up a state of facts showing that plaintiff is entitled to recover unless the leases and deed under which he claims are rendered invalid by reason of the further facts pleaded *in the answer, which are substantially, that on December 2, 1891, George W. Moberly, who is the common source of title, was the owner and in possession of the land, and on that day he executed a lease for a term of five years from March 1, 1892, to one Martin, at the yearly rental of
Tbe answer then proceeds in tbe nature of a cross-bill in equity and states separately three causes calling for equitable relief. Tbe first is leveled at tbe Martin lease, and charges not only that Moberly was a minor when be made it but that in tbe matter of obtaining tbe assignment of tbe landlord’s interest in it from Moberly, tbe plaintiff who is a shrewd business man, took advantage of tbe inexperience of Moberly, plied him with whisky until be was drunk, falsely represented that tbe lease, which was worth $500, was of no value, and by that means obtained tbe assignment for $25. Then fqllows a reiteration of tbe statements in reference to tbe making of tbe deed to Williams and Linney by Moberly after be came of age, disaffirmance of tbe transactions with plaintiff, bis squandering of the money received while a minor, the tender of the amount by Williams and Linney, their recovery of tbe land by suit
The remaining two paragraphs of the cross-bill are substantial repetitions of the one just summarized except that one of them is aimed at the second lease and the other at the deed made by Moberly to plaintiff, and praying for their cancellation as clouds on defendants’ title, and for injunction against them.
The reply admits the execution of the leases and deed as alleged in the answer, denies all the allegations as to fraud or improper dealing on the part of plaintiff, denies that Moberly was a minor when he executed the same, but avers that if he was a minor he was within a few months of being of age, that plaintiff dealt with him fairly and in good faith believing him to be of age, he holding himself out as such, and that he and defendants claiming under him are estopped to plead his infancy. Further, that on March 18, 1893, when he was of age, Moberly brought suit against plaintiff seeking to annul the leases and deed on the alleged ground that they were obtained by fraud and stating in his petition that he was of age when he executed them, which suit resulted in a judgment of dismissal at Moberly’s cost; that'thereby he ratified and affirmed his act and defendants are estopped to question it.
The court submitted the issues to a jury, who returned a verdict for defendants. After motions for new trial and in arrest were overruled, the cause is here on plaintiff’s appeal.
I. Under the pleadings the issues were divisible into two classes, the one constituting an action at law, the other a suit in equity. The issues affecting the validity of the plaintiff’s leases and deed on account of the alleged minority of Moberly and his disaffirmance of the same after coming of age, were
Where an answer in a law suit admits the plaintiff’s cause of action and sets up purely an equitable defense it converts the whole case into a suit in equity triable by the chancellor. [Hodges v. Black, 8 Mo. App. 389; Allen v. Logan, 96 Mo. 591; McCollum v. Boughton, 132 Mo. 601.] A plaintiff is not thereby deprived of his right of trial by jury because the defendant by his answer concedes the plaintiff’s right to recover unless the equity defense prevails.
But in this case the defendant pleads two affirmative defenses, the one cognizable at law, the other in equity, although he has mingled both in the same paragraphs; but no objection to the answer on that account was made, and as the facts can be distinguished we will do so.
If the court had seen fit to try first the issues presented in those portions of the answer which are in the nature of an equitable cross-bill, and had found that the plaintiff’s leases and 'deed were obtained by fraud, the finding would have covered the whole case, and there would have been no propriety in trying the other issues. But if the court had found for the plaintiff on the cross-bill, it would have left the issues relating to Moberly’s minority and his disaffirmance or ratification live questions for trial.
It was also in the discretion of the trial court'to have singled out the issues at law and have tried them first with the aid of a jury. In that event if the verdict had been for the plaintiff, the chancellor would have proceeded to try the issues relating to the alleged fraudulent procurement of the instruments, and if his finding had been for the plaintiff, judgment would have followed the verdict of the jury; if for the defendant, there would have been a decree for him notwithstanding the verdict.
There was a general verdict for defendant which might have been the result of a finding for defendant on one class of issues or the other or on both. If it was on the issues relating to the minority, etc., of Moberly, this court would not be required to balance the evidence to sustain the verdict, but if it was on the question of the fraudulent procurement of the instruments we would have to weigh all the evidence and find the facts.
Appellant omits from his abstract the evidence relating to the age of Moberly at the period in question, because he says he concedes that the evidence on that point was sufficient to support the finding that Moberly was under twenty-one years of age. That leaves open on that branch of the case ■only the question as to disaffirmance or ratification or estoppel. There was really no evidence entitling the plaintiff to have those questions submitted to the jury.
The evidence shows that in March, 1893, Moberly filed a suit against this plaintiff to set aside the loases and deed on the ground that they had been obtained by fraud, similar to the charge in the answer in this'ease, which suit was dismissed August 23, 1893, for failure to give security for costs. The •evidence of defendant tended to- show that it was about the time that suit was dismissed that Moberly discovered that he was a minor when he had the transactions with plaintiff, and then it was that he made the deed to Williams and Linney under which defendants claim.
The only evidence on the part of plaintiff which it is now claimed tends to show a ratification by Moberly after he came ■of age, is by plaintiff himself as follows: “Q. And this conversation you recited in answer to Judge Hill’s question, between you and George Moberly after the Moberly suit had
In the face of that evidence there was the fact of the suit wherein Moberly was seeking to have the instruments annulled on the charge of fraud, which charge the plaintiff in this case escaped answering only because Moberly could not give security for costs. The appellant’s counsel at the trial did not seem to attach any value to the plaintiff’s evidence on. that point, since he asked no instruction submitting the question of ratification as the act of a minor to the jury; the-hypothesis of ratification given in the eighth instruction is on the theory that Moberly was drunk when he executed the-instruments. But the learned counsel there took the position that defendants were estopped from asserting that their-grantor, Moberly, was a minor because Moberly by his conduct held himself out as a man and thereby misled the p1a.int.iff and also because in the suit which he filed to set aside the instruments he alleged that he was of age at the time. An instrue
The deed of a minor is avoidable at his option under certain equitable restrictions when he comes of age, even though he may have represented himself as of age when he made the deed, and thereby misled the other party to his disadvantage. A minor is no more responsible under the circumstances for his representations than he is for his deed.
Of still less force on the theory of estoppel is his statement in the petition in the suit referred to, that he was of age when he executed the instruments. That was after the transactions had occurred and the plaintiff could not have been misled by it.
When one on coming of age seeks to avoid his deed made when he was a minor he must act promptly, and, if he has the consideration that was paid him for the deed, he must restore it; but if during his minority the consideration he received has been wasted, he may avoid the deed without making restitution. [Craig v. Van Bebber, 100 Mo. 584.] In that case this court per BlacK, L, said: “The privilege of repudiating a contract is accorded an infant because of the indiscretion incident to his immaturity; and if he were required to restore an equivalent, where he has wasted or squandered the property or consideration received, the privilege would be of no avail when most needed.”
The eviden'ce showed that this young man’went on a ■spree when he received the money from plaintiff and in a short .while it was all gone. There w7as also evidence on the part ■of defendant tending to show that as soon as it was discovered that Moberly was under age when he had the transactions with plaintiff, a tender of the money that had passed from plaintiff to him was made by one of Moberly’s attorneys to plaintiff and refused. That evidence, however, leaves the impression that that tender was made in the interest of Williams and Linney who were about to become the
It appears from the evidence that the trustees under the will of the young man’s adopted father thought he had reached his majority a year earlier than the fact was, and in that mistaken fact invested the money left for him in this land, giving him a life estate and the remainder to the heirs of his body. He was under the same mistaken belief as to his age, and while so, executed the papers under which the plaintiff claims. But just about the time the suit he had filed against this plaintiff was dismissed, the mistake was discovered; then it was he made the deed to "Williams and Linney under which the defendant now claims. That deed is not set out in full in the appellant’s abstract but it is there described as a warranty deed in due form, dated August 23, 1893, and recorded two days later. Erom this we infer that it was a deed sufficiently absolute on its face to amount to a disaffirmance of the prior deeds. In such case the question of disaffirmance is not one of fact for the jury but one of the legal effect of the deed and is for the court. [Peterson v. Laik, 24 Mo. 541.]
Therefore under the record before us it is clear that Moberly was under age when he made the leases and deed under which the plaintiff claims, that he squandered the money he received from plaintiff while he was yet a minor, and disaffirmed the acts as soon after he came of age as he became informed of the facts, and under those conditions the verdict of the jury was right. There was no error in any of the instructions given and none in refusing those refused.
II. Before beginning the trial the plaintiff moved thé court to strike out those parts of the defendants’ answer that related to the suit brought by Williams and Linney
■ As already above intimated tbe statements constituting tbe ground on wbicb tbe defendant asked relief in equity were not as clearly separated from those constituting bis plea at law as might have been. Those parts of tbe answer at wbicb tbe motion to strike out was directed constituted no defense to tbe action at law, nor did they constitute alone an equitable defense, but they stated a fact wbicb it was proper for tbe court to consider, with other circumstances, in determining whether or not tbe plaintiff should be enjoined from further suing. If as stated in tbe answer tbe title on wbicb tbe plaintiff now sues was in that suit fully litigated and adjudged to be invalid and if in this suit it should also be so adjudged tbe defendants might with reason insist that they be protected by injunction from further unnecessary litigation on that account. Therefore tbe court did not err in overruling tbe motion to strike out.
III. On tbe trial tbe defendant offered to read the records of tbe deed from Moberly to "Williams and Linney and tbe mesne conveyances of tbe title to defendant. Plaintiff objected for tbe reason that it was secondary evidence and tbe proper foundation bad not been laid for its introduction. Tbe court overruled tbe objection and tbe records ware read. Then tbe defendant offered evidence to prove that tbe instruments were lost or not within bis power. But this was objected to on tbe ground that it was then immaterial since tbe records bad already been read, and defendant withdrew tbe offer.
Under section 2428, E. S. 1889, tbe record itself was competent if tbe defendant bad satisfied tbe court that the deeds were lost or that it was not within bis power to produce them, but tbe court erred in allowing tbe record to be read before defendant bad made tbe proper showing. As however it was followed immediately with an offer of tbe preliminary evidence required we can not regard it as an injurious error.
IY. As to the alleged fraud on the part of the plaintiff in 'obtaining the leases and deed from Moberly, the evidence can be compassed within small bounds. The young man was very dissipated and a spendthrift, and his character as such was well known. The plaintiff knew him well, had known him all his life. Plaintiff was forty-one years old, a merchant and engaged also in buying and selling notes. Moberly in December, 1891, shortly "after the trustees had bought it for him, leased the farm to Martin for five years from March 1st, 1892, for $100 a year, payable in advance; within a few days after the lease was executed plaintiff bought the first $100 rent note for $55, and -within a few days afterwards bought the rest of Moberly’s interest in the lease for $150, and obtained a lease from him for a period of five years from the termination of the first lease at a total rental of $50 cash and a promise-to pay taxes; then again in a few days a deed to all Moberly’s-interest in the land, that is his life estate, for $50. The land was worth about $2,000, that is the fee.
The evidence does not show that plaintiff gave the young man intoxicating drinks, nor does it affirmatively appear that the youth was drunk when he signed the papers. But tlie-plaintiff knew the young man’s misfortune, knew how his adopted father and the trustees under the will had tried to provide for him against his own improvidence; and the plaim tiff ought not to have had those transactions with him. For a total of $250 the plaintiff essayed to become the owner of all this unfortunate youth’s estate, knowing as well beforehand how the money would be spent as did afterwards the somewhat flippant witness who stayed with him until he spent it all. The law does not justify that kind of dealing and: courts of equity will set aside deeds obtained in that way.
Tbe defendants however were entitled, in addition to the •ordinary judgment following tbe verdict, to a cancellation of tbe assignment by Moberly to plaintiff and J. D. Eidgeway of tbe Martin lease, and a decree that tbe second lease and the deed from Moberly to plaintiff on tbe records of Grundy county were clouds on defendants’ title and cancelling tbe same.
VI. In accordance with the foregoing views tbe judgment of tbe circuit court is reversed and the cause remanded with directions to that court to enter judgment for defendants according to tbe verdict of tbe jury on tbe plaintiff’s cause of action, and cancelling tbe assignment of tbe Martin lease to plaintiff and J. D. Eidgeway, decreeing tbe lease of date February 1st, 1892, and tbe deed of date February 4th, 1892, from Moberly to plaintiff clouds on defendants title and can-celling tbe same, and adjudging that defendants recover of plaintiff tbe costs incurred in tbe circuit court.