111 Ky. 467 | Ky. Ct. App. | 1901
Lead Opinion
Affirming.
Appellee, a farmer aged about 70 years, living in Mason county, Ky., and a ‘'promotor,-'” named J. Winn Parker, of Weston, Mo., in December, 1895,. entered into a contract by which appellee agreed to exchange' his farm, of some 120 acres, in Mason county, Ivy., -and notes, held by him to the amount of $642.80 and interest against one J. W. Morgan (secured by- lien on land in Mason county), to one E. Sewell, the principal for whom J. Winn Parker assumed to be acting, appellee to receive in exchange for his land and the Morgan notes a tract of land in Taney county, Mo., represented to contain 400 acres, and to have surrendered to him two notes of $150 each, theretofore executed by appellee to Parker, and to receive Parker’s note for $500, due October 15, 1896. Appellee was then living on the farm proposed to be exchanged by him, and he continued to so reside until after the institution of this suit. It appears that Parker had formerly lived in Lewis county, Ky., adjacent to Sweet, and had, in the early part of 1895, been in Kentucky, when he sold to appellee, Sweet, an 80-acre tract of land in Taney county, Mo., taking for it Sweet’s two notes for $150 each, due June, 1896, and June, 1897, respectively (the notes of that amount named above), and a jack at $500, making the consideration for the land $800. In October, 1895, appellee, went to Missouri with Parker, to examine the land, and was shown by-Parker as fine a body of land as one might covet, judging from its description given by appellee. Naturally, appellee was much pleased with his venture, and was an easy mark for the subsequent transactions. Soon Parker again ■appeared in Kentucky, and without much apparent difficulty, induced appellee to execute the pontract first herein
It is the ciontention of the appellant that he was an innocent purchaser for value, and without notice of Parker’s fraud; that it was the fraud of Parker that was the vicious element in the transaction, and that appellant was as ignorant" and innocent of it as was appellee. Again, he argues that appellee stood by and saw him invest in the land, knowing that he. was doing so, and urged or advised him to make the purchase; that, therefore, he is estopped now to question appellant’s title. He further argues that appellee can not deny the effect of his warranty deed, and can not set up a superior equity to the legal title he has conveyed by his warranty deed. He also argues that there was not a failure, total or partial, of the consideration for the conveyance to him, for he says the consideration for his conveyance moved from appellant (being what he was induced to part with to Parker therefor), and it mattered not in law whether the consideration moved to the grantor or another, it was sufficient if the grantee had parted .with a valuable asset in exchange for the conveyance. . The case has been prepared with much care and skill, and argued with rare ability. To dispose of these
It is further argued for appellant that there could not be a failure of consideration in this case, because it is not necessary that the consideration should move to the grantor in the deed; it is sufficient if it moves from the grantee. The proposition stated is elementary, and not questionable. But we hold that the consideration for the execution of this deed was not Thomas’ conveyances and payments to Parker, but Parker or Sewell’s agreements to convey the Missouri land, and deliver the notes and cash to Sweet. Thomas’ conveyances and payments to Parker were the consideration for the assignment or transfer of Sewell’s equities in the Sweet contract to 'Thomas. Counsel for appellant cite and mainly rely on the case of Morrison v. Clay, Hardin, 430. In that case, Morrison and Mansel entered into a contract with West, who claimed to be the inventor of a machine for cutting and heading nails, for the purchase of said invention, for which machine they agreed to give him $9,375. West was to proceed at once to Washington, and obtain patents for his invention, and make due conveyances thereof to the vendees named. Subsequently the three entered into a contract practically abrogating the first one, and becoming partners in the manufacture of the articles named; but Morrison and Mansel were to pay tworthirds of the original price, and' that in making those payments they were to have credit for certain debts of West settled or to be settled by them with his creditors. Peacock, Wrenshall & Co., for whom Mr. Henry Clay, the appellee in that action, was the agent or attorney, obtained a judgment for a considerable sum of money
The estoppel pleaded must be unavailing to appellant. We can not determine from the record that appellee did or’ said anything prior to the execution of the paper of April 3d that could have misled and did mislead appellant, or that did induce him to part with his money or property to Parker; for it appears that appellant made his conveyances and paid all the money to Parker prior to April 3, 1896. True, he paid the $265 to the building association after that date, but, as we have found above, he received an equivalent consideration for that, the transaction amounting in reality to appellee’s having paid that debt. To constitute an estoppel, appellee must have said or done something calculated to and that did cause appellant to part with his property or money, or change his position to his damage. No such fact is satisfactorily shown by the record, and therefore the plea can not prevail.
We do not deem it necessary to determine what notice attached to Sweet's actual occupancy of the premises when sold to appellant, as we find the sufficient fact that appellant had actual notice of the terms of the Sewell-Sweet contract of December, 1895, before he had parted with any property or money to Parker; and because we find the further fact, and have applied the rule of law, that appellant took under Sewell (or Parker) as vendee of his equity in the said contract of December, 1895, and was thereby con
That one can not deny his own warranty deed, or set up a superior title to the one he has conveyed by such an instrument, is true. But that rule does not apply, of course, where the grantor in such a deed brings his appropriate action to vacate it, and have it cancelled by decree of court, because of fraud in its obtainment, or because of the failure of the consideration upon which it was executed. Appellee’s counterclaim in this action was an appropriate manner, under our practice, of making the direct attack to have the conveyance canceled. The judgment is af firmed.
Dissenting Opinion
dissenting opinion:
As a matter of fact, Thomas did not participate in the fraud of Parker. Neither does the court find that he did, or base its opinion upon that idea, but it erroneously assumes that he occupied the same position in the transaction that Parker did, who practiced the fraud upon Sweet. The court decides the case as if it were an action by Parker to enforce the executory contract against Sweet. Sweet sold the farm to Parker or Sewell, and executed a paper in the nature of a title bond for same, in which there was a covenant that he would make a deed of general warranty. Parker proposed to sell the land to Thomas, but he would not buy it until he had seen Sweet; and upon assurance by him that the matter was all right, he bought it. Thomas and Parker agreed upon the price, and Parker executed and delivered to Thomas a title
Rehearing
Response by
overruling petition for new hearing.
The rule as to when a person who voluntarily executes a deed which is procured by fraud can avoid it against other persons than the party who perpetrated the fraud is thus accurately stated in Pomeroy’s Equity Jurisprudence: “The destructive 'effect of fraud upon any contract, conveyance, or other transaction is so essential and far-reaching that no person, however free from any participation in the fraud, can avail himself of what has been obtained by the fraud of another, unless he is not only innocent, but has given some valuable consideration.” Section 899. “The remedy which equity gives to the defrauded person
Petition overruled.