Hayes v. DeLzell

• Decision Date: 20 April 1886
• Parties: JAMES HAYES, Appellant, v. W. H. DELZELL ET AL., Respondent.
• Court: Missouri Court of Appeals

21 Mo.App. 679

JAMES HAYES, Appellant,

v.W. H. DELZELL ET AL., Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1886.

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Reversed and remanded.

F. S. HEFFERNAN, for the appellant: Fraudulent representations of the vendor of lands as to quality, quantity, situation and title thereof will entttle the vendee to relief. Holland v. Anderson, 38 Mo. 55; Malone v. Harris, 6 Mo. 451; Hall v. Clark, 21 Mo. 415. Fraudulent representations of facts regarding lands, which induce a party to purchase, will be held fraudulent in equity, however innocently made. Glasscock v. Minor, 11 Mo. 655; Pomeroy v. Benton, 57 Mo. 531; Smith v. Bircher, 2 Mo. App. 449; Brownlee v. Hewitt, 1 Mo. 360. And the fact that the vendee neglects to examine the property and make inquiries will not relieve the vendor from liability. Caldwell v. Henry, 76 Mo. 254; Brownlee v. Hewett, supra; Willard's Eq. Jur. 149, et seq.

C. W. THRASHER, for the respondents: The plaintiff, as purchaser at the sale under the deed of trust, purchased at his own risk; and neither the trustee nor the beneficiary in said deed of trust were bound to convey him a perfect title to the land sold. Bernard v. Duncan, 38 Mo. 170; 2 Jones on Mortgages, sect. 1889; Nixon v. Hyserott, 5 Johns. 58; Van Epps v. City of Schenectady, 12 Johns. 435.

THOMPSON, J., delivered the opinion of the court.

This is an action by the purchaser at trustee's sale, against the trustee making the sale and the beneficiary in the deed of trust, for damages for deceit, whereby the plaintiff was induced to become the purchaser. The question was submitted to the court, sitting as a jury, upon an agreed statement of facts, after hearing which the court gave an instruction to the effect that the plaintiff could not recover and rendered judgment for the defendants.

The facts agreed upon, stated in outline only, were as follows: On the twenty-eighth day of November, 1882, Malinda Buckner executed a deed of trust in the usual form, conveying to the defendant Nease, as trustee, a parcel of ground in the city of Springfield, therein described by metes and bounds, to secure the sum of three thousand dollars, borrowed from the defendant Delzell, as curator of the estates of certain minors. On the third day of January, 1883, Nease, as trustee, and Delzell, as cestui que trust, executed to Ralph Walker a deed of release, releasing and quit-claiming to him a part of the land conveyed in the deed of trust, which part, the deed of release recites, had been conveyed to him by Malinda Buckner, which deed of release was acknowledged and recorded on January 15, of the same year. The note secured by the deed of trust not having been paid at maturity, Nease, as trustee, in November, 1884, advertised the whole tract described in the deed of trust, referring for description to the deed of trust as it stood of record, for sale under the power of sale therein contained, and published the advertisement for thirty days in a daily newspaper published at Springfield. On the twenty-seventh day of December, 1884, at the court house, in the city of Springfield, in pursuance of the advertisement, Nease, as trustee, offered the property for sale, by reading the notice of sale which had been thus published, and by offering the land therein described for sale under the deed of trust, to the highest bidder for cash, to pay the note secured by the deed of trust. At this sale the plaintiff became the purchaser for the sum of $2075. The agreed statement of facts goes on to recite as follows: “That said James Hayes did not know of the deed to Ralph Walker, and supposed he was buying two hundred and twelve and a half feet on Chestnut street [the whole tract described in the deed of trust] at the time he made his bid; that he only got by said deed one hundred and seventy-seven feet on said Chestnut street [the amount remaining after excluding that conveyed in the deed of release] and that, long before the time of said sale under said trust deed, said Walker had taken possession of said strip of land described in said deed of release and it was enclosed when he bought it with a plank fence about ten feet in height, placed on the line between said strip of land described in said deed of release and the remainder of said tract described in said deed of trust, which fence was still standing on the ground before mentioned at the time of the advertising and sale of said land under said deed of trust.” The agreed statement of facts, also, shows that, on the day of the sale by Nease, as trustee, he received the bid of the plaintiff “for the premises described in said deed of trust,” and executed to him a deed in the usual form of trustee's deed, which deed purported to convey to the plaintiff (but without covenant of warranty) all the land described in the deed of trust, following the same description as that in the deed of trust, and referring to the deed of trust, as it stood of record, for identification.

It is perceived that the question for decision is whether, in the facts thus agreed upon, there were facts sufficient to take the case to a jury, if it had been tried by a jury. It is true that the rule of caveat emptor applies to sales of this kind....