Boles v. Bennington

• Decision Date: 23 December 1896
• Citation: 38 S.W. 306,136 Mo. 522
• Parties: BOLES v. BENNINGTON et al.
• Court: Missouri Supreme Court

38 S.W. 306

136 Mo. 522

BOLES v. BENNINGTON et al.

Supreme Court of Missouri.

December 23, 1896.

PLEADING — SUFFICIENCY OF ANSWER — SPECIFIC DENIAL — ESTOPPEL IN PAIS.

1. In an action to rescind a contract for the exchange of lands, the complaint, after alleging fraud on the part of the principal defendant, also alleged that the other defendants, subsequent purchasers, had notice of the fraud. The defendants "admit the execution of the deeds for the lands in controversy, except that defendants had any notice of the fraud," etc. Held, that this was not a sufficient denial of the fraud and the notice thereof, within the provisions of Rev. St. 1889, § 2049, declaring that the answer must contain a general or special denial of each material allegation of the petition controverted by the defendant.

2. In an action to rescind a contract for the sale of land on the ground of fraud of the vendee, it appeared that the vendee had given a deed of trust on the land, which had been foreclosed, and the land purchased by defendant; that, prior to the sale, defendant had asked plaintiff if it was safe to buy the land, and whether it was worth the $700. Plaintiff replied that the land was well worth $1,000; that defendant would be safe in bidding $700, and to go ahead and do so. Held, that plaintiff was estopped to claim the land on the ground of fraud in the original sale.

Robinson, J., dissenting.

In banc. Appeal from circuit court, Dallas county; Argus Cox, Judge.

Action by William Boles against Joseph M. Bennington, Thomas M. Brown, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This suit was instituted for the purpose of having rescinded a contract for the exchange of lands entered into by plaintiff and the defendant Bennington, to set aside certain deeds described in the petition, and to reinvest in plaintiff the title to a tract of land in Dallas county, deeded by him to said Bennington, by Bennington under trustee's sale to Brown, and by Brown to Hendrix. The petition alleged that, in consideration for the land conveyed by plaintiff to Bennington, he (Bennington), to induce plaintiff to make the exchange, agreed to pay him $200, and convey to him, by good and sufficient deed of warranty, 80 acres of land in Polk county, Mo., to wit, the N. ½ of the S. E. ¼ of section 32, township 34, range 23, and with intent to cheat and defraud him, and to induce him to make the trade, willfully, falsely, and fraudulently, stated and represented to plaintiff that said land was good land, and that he had good title to it in fee; that relying upon and confiding in said statements, representations, and by reason thereof, he was induced to, and did, on the 15th day of November, 1889, convey to Bennington the Dallas county land, which he then owned, and put him in possession thereof; that Bennington paid to him the $200, as per agreement, and on the 21st day of November, 1889, executed to plaintiff a deed to said Polk county land, and the plaintiff shortly thereafter took possession of it under his said deed; that Bennington had no title to the land attempted to be conveyed by him to plaintiff, which he learned for the first time after he moved on it, and very shortly thereafter abandoned its possession; that the land he traded to Bennington was worth $1,000. The petition further alleged that, after the trade, Bennington executed a deed of trust on the land which plaintiff had theretofore conveyed to him, to the defendant Lamun, trustee, to the use of the defendant the Dallas County Bank, to secure an indebtedness which he owed to it; that the land was subsequently sold under said deed of trust; and that defendant Brown became the purchaser for it at said sale, with notice of plaintiff's equities; and that defendant Hendrix, to whom Brown subsequently sold and conveyed it, also had notice of his equities, at the time of his said purchase. The petition then offered to refund the $200, received by plaintiff in part consideration for the exchange of lands, and to reconvey all interest in the Polk county land to any person whom the court might direct, and prayed that the contract might be rescinded, etc. Bennington, Vandiment, and Routh made default. Brown, the Dallas County Bank, Lamun, and Hendrix, answered, denying all knowledge of any fraud on the part of Bennington, and alleged, by way of estoppel, that after the land in contest was advertised for sale under the Bennington deed of trust by Lamun, trustee, and before the day of sale thereunder, plaintiff told defendant Brown that the title was all right, and the land worth $1,000; that he would be safe in buying it at $700, and to go ahead and do so; that Brown, relying upon said statements, was induced to purchase the land at said trustee's sale. The answer also averred that, before defendant Hendrix purchased the land from Brown, plaintiff told him to go ahead and buy it; there would be no trouble about it; and, relying upon said statements, he did buy it. There was judgment for the defendants who answered, and plaintiff brings the case to this court by appeal for review.

John S. Haymes, for appellant. Levi Engle, for respondents.

BURGESS, J. (after stating the facts).

Boles executed a deed to Bennington for the land in question on the 15th day of November, 1889, and, on the 13th day of February next thereafter, Bennington executed deed of trust on the same and other lands to John A. Lamun, trustee, to use of the Dallas County Bank, of which defendant Brown and J....