Summers v. Abernathy

• Decision Date: 11 April 1911
• Citation: 136 S.W. 289,234 Mo. 156
• Parties: Z. T. SUMMERS et al. v. JEROME ABERNATHY et al., Appellants
• Court: Missouri Supreme Court

136 S.W. 289

234 Mo. 156

Z. T. SUMMERS et al. v. JEROME ABERNATHY et al., Appellants

Supreme Court of Missouri, Second Division

April 11, 1911

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed and remanded.

K. C Spence and Andrew W. Hunt for appellants.

(1) The duty is devolved upon a plaintiff, in the first instance, to state a cause of action; if he fails to state a cause of action, the objection may be raised in this court. Young v. Scofield, 132 Mo. 650. Fraud and injury must concur and it must be so alleged, or plaintiff cannot succeed, and it was not so alleged in this case. 9 Ency. Pl. and Pr. 696 sec. 6. In a suit to cancel a deed because of false representations made by a grantee, plaintiff must plead an injury or damage; and this was not done in this case. Smith v. Brittenham, 98 Ill. 188; Joliffe v. Collins, 21 Mo. 338. The false representation must have been made to the injured person. If a false representation was made at all in this case, it was made to Proffer, while the injury, if any, was done solely to the widow and heirs of Elisha Summers, deceased. American Law Review, Jan.-Feb., 1910. (2) While the decree divests title out of appellants and vests it in respondent widow Louisa J. Summers, such allegations and facts found, and the theory upon which the cause was tried below, at the utmost would have justified a decree to the effect that the title be vested in the heirs of Elisha Summers, subject to the statutory rights of his widow. Louisa J. Summers, the widow, stated in the petition that she would hold such rights as the circuit court gave her for the heirs subject to her rights as widow. It is alleged in the petition that Abernathy owned all the interests of W. F. Summers and Marinda I. Baily, two of the heirs of Elisha Summers, in the land owned by the estate of Elisha Summers, yet the decree gives these interests to Louisa J. Summers, which is manifest error in the decree; and since such error appears upon the face of the record proper, it was saved to appellants by their motion in arrest of judgment. McGammon v. Ins. Co., 171 Mo. 143; 1 Black, Judgments, sec. 183. (3) Both limitations and laches bar plaintiffs from the relief sought, if not from all relief. Robinson v. Allison, 192 Mo. 366.

Rudolph Houck and A. T. Welborn for respondents.

This is a suit for the recovery of real property and as such could not have been barred in less than ten years. Dunn v. Miller, 96 Mo. 338; Cooper v. Deal, 114 Mo. 533; Hudson v. Cahoon, 193 Mo. 560; Rogers v. Brown, 61 Mo. 191. Nor does the petition show on its face that the respondents are barred by their laches. Hudson v. Cahoon, 193 Mo. 562. Appellants state that because the deed was without consideration and this fact was alleged in the petition, it was void on its face and respondents had an adequate remedy at law. But there is a distinction between alleging in the petition that a deed is without consideration and alleging that it shows on its face that it was without consideration. No such allegation as the last is found in this petition. On the contrary it is alleged that the deed was a warranty deed in ordinary form, duly executed, and constituted a cloud on the title to the lands. This is certainly sufficient, especially after judgment. In such cases the rule is that where there is any defect, imperfection or omission in a pleading, if the issue joined be such as necessarily required proof of the facts so defectively or imperfectly stated, and without which it is not to be presumed that the verdict or judgment would not have been given, such defect, imperfection, or omission is cured. 31 Cyc. 764. And while it was not necessary that this deed should state a consideration on its face in order to be ostensibly a valid deed (Jackson v. Railroad, 54 Mo.App. 643), yet if it were necessary, there is nothing in the face of this petition to show that this deed does not recite such a consideration.

KENNISH, P. J. Ferriss, and Brown, JJ., concur.

OPINION

KENNISH, P. J.

On January 20, 1907, plaintiffs filed in the circuit court of Stoddard county a petition alleging that a deed executed by the plaintiffs Moses Proffer and Eliza Proffer, his wife, conveying certain land in that county to the defendant Jerome Abernathy, was obtained by fraud and without consideration. The prayer of the petition was that said deed be cancelled, the defendants divested of the title to said land and said title vested in plaintiffs.

Upon a trial of the cause the circuit court found the issues for the plaintiffs, cancelled the deed, divested the defendants of the title to the land and vested the same in the plaintiff Moses Proffer, in trust for the plaintiff Louisa J. Summers. From this judgment the defendants appealed to this court. No bill of exceptions was preserved and filed and, therefore, only the record proper is before us for review. As the errors assigned by appellants all relate to the sufficiency of the petition, and the conformity of the judgment to the pleadings, the petition and the finding, judgment and decree will be set out at length.

The petition, omitting formal parts, is as follows:

"Plaintiffs state that Elisha Summers died intestate on the day of 1894, leaving as his widow, the plaintiff Louisa J. Summers, and as children and heirs at law and in equity, the plaintiffs Z. T. Summers, Ada Garner, Marinda Hopkins, Walter Summers and John Summers, the defendant Lizzie Abernathy, W. F. Summers, now deceased, and Marinda I. Summers (now Bailey).

"Plaintiffs state that on November 5, 1890, and at the time of his death, the said Elisha Summers was the owner in fee and seized and possessed of, among others, the following described lands, lying and being situate in Stoddard county, Missouri, to-wit: All that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter and all of the southwest quarter of the northeast quarter, except seven acres in the northeast corner thereof, all in section eight, township twenty-seven, range eleven east.

"That on the said 5th day of November, 1890, said Elisha Summers and Louisa J. Summers, his wife, conveyed the lands by mortgage deed to Stoddard county as security for a loan of two hundred dollars secured by the said Elisha Summers from the school fund, and that at the time of the death of the said Elisha Summers, the said mortgage deed was still unsatisfied and still incumbered said land.

"Plaintiffs further state that during his last sickness it was the request of said Elisha Summers that plaintiff Moses Proffer should pay off the said mortgage deed and receive as his sole compensation for so doing the said southwest quarter of the northeast quarter, except the said seven acres in the northeast corner; that said Moses Proffer was willing to comply with said request of Elisha Summers, procured an order of the county court to the sheriff of Stoddard county directing him to sell the said land, became the successful bidder at the sale, and on March 16, 1898, received from the sheriff of Stoddard county a deed conveying to him, Moses Proffer, all the land above described and in said mortgage deed contained.

"Plaintiffs state that said Moses Proffer took the title to the said land, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, unto himself by the said sheriff's deed, for the sole purpose of reconveying the same to the plaintiff Louisa J. Summers, that being, as he understood, in accordance with the request of said Elisha J. Summers, deceased.

"Plaintiffs state that the defendant herein, Jerome Abernathy, knowing that it was the intent of the said Moses Proffer to convey the said land to Louisa J. Summers, or to some other person at her direction, went to the said Moses Proffer and, with intent to injure and defraud all the parties plaintiff to this suit, falsely and fraudulently represented to said Moses Proffer, that said Louisa J. Summers had agreed and directed that said Moses Proffer should make a deed to the said land, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, to him, the said Jerome Abernathy. Plaintiffs state that the said representations of the said Jerome Abernathy were false and known by him to be false, and that the said Louisa J. Summers had not agreed or directed that the said Moses Proffer should deed the said land to said Jerome Abernathy, but that plaintiffs Moses Proffer and Eliza S. Proffer believed said representations were true, and relying upon them and without any other or further consideration, duly executed, acknowledged and delivered to the said Jerome Abernathy a warranty deed, in common form, conveying to him the said lands, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven east, in Stoddard county, Missouri, said deed bearing date May 1, 1899, and being recorded at page 233 of book 29, one of the land records of said Stoddard county, Missouri.

"Plaintiffs Moses Proffer and Eliza S. Proffer, state that they acknowledge that whatever title, interest or estate they have in and to the said land, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, they hold in trust for the purpose of carrying out the said request of the said Elisha Summers, deceased, and that they expect...