Estes v. Alexander

• Decision Date: 20 December 1886
• Parties: Estes v. Alexander, Plaintiff in Error
• Court: Missouri Supreme Court

2 S.W. 414

90 Mo. 453

Estes v. Alexander, Plaintiff in Error

Supreme Court of Missouri

December 20, 1886

Error to Cape Girardeau Circuit Court. -- Hon. J. D. Foster, Judge.

Reversed.

R. B Oliver for plaintiff in error.

(1) No testimony ought to have been heard upon the petition, as it does not state facts sufficient to constitute a cause of action. (a) It does not state that defendant practiced upon plaintiff any deceit, artifice, or trick, for the purpose of or calculated to, throw him off his guard; or that defendant and plaintiff bore to each other any confidential relationship, or that special confidence was reposed in the representations of defendant, nor why plaintiff relied upon the statements of defendant, when his means of information were equal to defendant's; nor any excuse for plaintiff's neglect to inform himself of every statement charged to have been made by the defendant. The scienter, the gist of the action, is not alleged. It is not sufficient that the representation be false, but it is essential that plaintiff was deceived by the representation, and that defendant so intended. It does not charge that the true condition of the deed was unknown to plaintiff. Dunn v. White, 63 Mo. 181; Longden v. Green, 49 Mo. 363; Morse v. Rathborn, 49 Mo. 91; Rutherford v. Williams, 44 Mo. 18; Parker v. Marquis, 64 Mo. 38; Peers v. Davis, 29 Mo. 184; Jolliffe v. Collins, 21 Mo. 242; Glasscock v. Minor, 11 Mo. 655; Benjamin on Sales [3 Am. Ed.] sec. 429; Cooley on Torts, 476, 487 and 502; 1 Story's Eq. Jur. [8 Ed.] secs. 191 and 199; Whiting v. Hill, 23 Mich. 399. (b) The petition does show that the sale was a public one, and made by order of the probate court; it was, therefore, a judicial sale. "When a person buys at a sale like this, the risk is all his own. If the title is bad, the loss is all his own. If there is a speculation, the gain is all his own." Bartlett v. Glasscock, 4 Mo. 70; Stroan v. Deman, 41 Mo. 289; Owts v. Smith, 14 Mo. 153; Cashion v. Farris, 47 Mo. 133; Swartz v. Dryden, 25 Mo. 572; Tutt v. Hobbs, 17 Mo. 486; Corwin v. Benham, 2 Ohio (N. S.) 36; Washington v. McRoberts, 9 Ala. 297; Bingham v. Maxey, 15 Ill. 295; Freeman on Void Judicial Sales, secs. 1 and 46. (2) The court erred in refusing to sustain defendant's demurrer to plaintiff's evidence. There was no testimony sustaining the allegations of the petition. Morgan v. Durfee, 69 Mo. 469; Horton v. Railroad, 65 Mo. 22; S. C., 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484; Maher v. Railroad, 64 Mo. 267; Alexander v. Harrison, 38 Mo. 258; Jaccard v. Anderson, 37 Mo. 91; Smith v. Railroad, 36 Mo. 202; Lee v. David, 11 Mo. 114; Harris v. Moody, 9 Mo. 112; Proffatt on Jury Trials, secs. 351, 352, 354, and cas. cit.

W. Cramer for defendant in error.

OPINION

Norton, J.

Since the pendency of this suit, in this court, the plaintiff has died, and the same has been revived in the name of Thomas Allen, administrator of his estate. It is substantially set up in the petition, that defendant, as public administrator of Cape Girardeau county, in charge of the estate of J. Wiley Call, deceased, by virtue of an order of sale, made by the probate court, did, on the eleventh of September, 1887, offer, and expose to public sale, certain real estate, as the property of said Call, deceased; that at said sale plaintiff became the purchaser of said real estate; that before the said sale, and with a view of inducing this plaintiff to become the purchaser of said real estate, so sold by him, the said administrator made certain false and fraudulent representations to plaintiff, in regard to the delivery of said deed from the said J. Wiley Call, deceased, to his daughter, Sarah J., to the effect that said deed had never been delivered to said Sarah, nor to any one for her, that it was of no account, and was no more than a piece of blank paper, etc., etc., all of which statements and representations the said administrator then and there well knew to be false and fraudulent; that relying on said representations, plaintiff became the purchaser, entered into possession of the property, and was subsequently ejected by an action brought by Sarah J. Crump, a daughter of said Call, deceased, who claimed the land under a deed conveying the same to her, executed by said Call, in his life time, and found among his papers after his death. It is also averred that plaintiff has sustained one thousand dollars damages.

Defendant denies that he made the false and fraudulent representations imputed to him in the petition, and avers that he gave plaintiff a fair and true statement of all he knew about said deed, and that Estes bought the property with full knowledge of said Sarah J. Crump's claim to said land, and that in buying it, he knew he was buying a law suit. On the trial plaintiff recovered judgment for one hundred dollars, and the case is before us on writ of error, sued out by defendant; and it is claimed, among the numerous errors assigned, that the court erred in refusing to sustain a demurrer to the evidence.

This point, we think, is well taken, as a reference to the evidence of plaintiff will show that he wholly failed to make out the case stated in his petition. He was a witness on his own behalf, and testified, among other things, that he had a talk with Alexander about the deed from Call to Mrs. Crump both before and after the advertisement for sale, and stated as follows: "I heard there was trouble about it; this was the first time I talked to Alexander on the subject. Alexander spoke of the deed. He said he found it with Mr. Call's papers; that Sarah J. Crump demanded it; that he refused to give it to her, but took it to town, and had lawyer Green W. Davis's advice on it. Alexander said, Davis said it was of no account, no more than a blank piece of paper. On these grounds I bought." "I heard, a long time before the sale, there was a controversy about the deed to this land." He was asked what induced him to buy the land, to which he replied: "I was induced to buy this land, because I took it for granted that an order...