Kinne v. Webb

Citation49 F. 512
PartiesKINNE et al. v. WEBB et al.
Decision Date07 March 1892
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

R. O Boggess and I. J. Ketchum, for complainants.

Karnes Holmes & Krauthoff, for respondents.

PHILIPS District Judge.

The complainant Sarah M. Kinne is the widow of John C. Webb deceased, since intermarried with Ezra B. Kinne. On the 13th day of April, 1883, the said John C. Webb died testate at Webb City, Jasper county, Mo., leaving the respondents hereto, with the said Sarah, his sole heirs at law, and beneficiaries under his said will. He died possessed of considerable property, personal and real. The real estate consisted principally of mineral lands containing lead ore. Soon after his death, and prior to the probate of his will negotiations took place between the widow and his children by a former wife, looking to an immediate adjustment and payment of the interest of the complainant in said estate, which resulted on the 24th day of April, 1883, in a contract of settlement by which, in consideration of the sum of $15,000 in cash then paid to her, the complainant, by deed of release and quitclaim, conveyed her entire interest and claim in and to the real and personal estate to the respondents, children of said decedent by his first wife. Shortly after the probate of the will the complainant manifested dissatisfaction with the terms of settlement, and, after filing in the probate court her renunciation of the provisions of the will, she instituted suit in the state circuit court of that county to set aside the deed of release, as having been obtained through fraud and deceit, asserting a right of dower in said property, and praying for its assignment. This suit was abandoned by her, and within a year she renewed the same in the same jurisdiction; and again, in December, 1884, she discontinued said second suit, after taking depositions therein. She took no further action in the matter until the 7th day of February, 1890, when the present suit was instituted in this court.

If this case were to be determined on the merits of the issue, as to whether the complainant ought to be relieved from the contract of settlement on the ground of an undue advantage taken of her, I should encounter serious opposition, in my sense of justice, in holding her to the contract. But there lies at the threshold of this controversy the preliminary question, conceding the gravamen of her complaint, has she exercised that degree of diligence, and made offer of restitution, which the established rules of equity exact, to give her a firm foundation in a court of chancery? This being a suit in equity to set aside a contract of settlement and release alleged to have been obtained fraudulently and against good conscience, what is there in its character and attendant circumstances to withdraw it from the operation of the general rules of law and equity governing like actions? Among these settled rules is the requirement that he who would avoid a contract on the ground of fraud or oppression, upon the discovery of the wrong, should act promptly and energetically in demanding restitution before the status of the property is materially changed; and, where he seeks a rescission, he should offer to return what he has received under the contract, so as to place the parties in statu quo in respect to the subject-matter of the contract. As aptly put by SHERWOOD, C. J., in Estes v. Reynolds, 75 Mo. 565:

'If he elects to disaffirm the contract in consequence of deception practiced upon him, such election, in order to avail him, must have the chief and essential element of promptitude, and he must put the other party in the same situation as he was before the contract was made.'

Citing Jarrett v. Morton, 44 Mo. 275, in which it is said:

'If the plaintiff would repudiate a settlement, he must put the other party in the same condition he was before it was made. He cannot appropriate its benefits and deny its obligations. There never was but one doctrine upon this subject; and the books are full of decisions that, if a party would rescind a contract for fraud or other cause, he must, as far as in his power, put the other party in the condition he would have been in had the contract not been made.:

And this rule has recently been emphasized by that court in Taylor v. Short, 17 S.W.Rep. 970, in which it is held that, in an action to rescind the original transaction and exchange, the plaintiff waived the fraud by not electing to rescind upon the first discovery of fraud, and that the right to rescind did not revive by a subsequent discovery of some incident of the fraud.

The complainant neither, prior to the institution of this action, tendered back the $15,000 in money received in execution of the contract, nor does she offer to do so in her bill. Counsel, while conceding the rule, contend that it has reference more particularly to the rescission of ordinary contracts of barter, exchange, and sale, and should not be applied to a case like this, where the complainant would in any event, according to their claim, be entitled to have and hold as her distributive share of the estate a sum of money equal to $15,000. This is plausible, but I fail to find any positive authority or precedent for it. The interest of the wife on the vacation of such settlement would be that of a dowress,-- a life-estate in one-third of the lands of which the husband died seised, and a child's part in the personalty, the latter subject to debts. Whether the interest thus coming to her would be of the cash value of $15,000 would depend upon the state of facts existing at the time of the allotment. It might be more or less. What the cash value of her interest in the lands would be at the time of the assignment is but speculative. What her interest in the personalty would be after its administration, could be but conjectural at the time. There were no means of definite ascertainment. It therefore lies within the category of disputable facts. A part of the money she received has since been invested in a house and lot, and whether she has a dollar in money or credit left is unknown. If her interest in the personalty turned out to be less than $15,000, she would have to account for the excess in money. What, then, becomes of the reason of the rule of restitution in order to entitle one to a rescission? Restitution or offer to return precedes the right of action. The parties are to be placed in statu quo in order to secure equality in the chances of new litigation. The rule does not contemplate the taking of evidence after suit brought to enable the court to say whether or not the suitor retains only his dues in any event. The voluntary antecedent act of the party complaining must eliminate such question from the controversy.

The case of Courtright v. Burnes, just published in 48 F. 501, aptly illustrates this view of the rule. Burnes was unquestionably indebted to Courtright in a large sum. They made a compromise settlement, which Courtright sought to set aside for fraud and undue advantage alleged to have been taken by Burnes of Courtright's agent. Part-- an inconsiderable part-- of the property turned over by Burnes to Courtright in execution of the settlement consisted of lands. It was held that Courtright could not maintain the bill to set aside the settlement without tendering a reconveyance of this land. Mr. Justice MILLER, who delivered the opinion, said:

'We do not see how we can get rid of the argument that since Courtright desires this settlement to be set aside the parties must be placed in the situation in which they were before the settlement was made, and the interest in these lands be reconveyed by Courtright to Burnes.'

The same rule is announced by the supreme court in McLean v. Clapp, 141 U.S. 429, 12 S.Ct. 29, which was a suit in equity to set aside a settlement, in execution of which the complainant had received certain notes from the debtor respondent. Mr. Justice BREWER, for the court, said:

'Now, if he desired to rescind his contract, his duty was at once to return what he had received, and repudiate wholly
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9 cases
  • Och v. The Missouri, Kansas & Texas Railway Company
    • United States
    • Missouri Supreme Court
    • July 2, 1895
    ...Cohn v. Reid, 18 Mo.App. 115; Schultz v. Christman, 6 Mo.App. 338; Taylor v. Short, 107 Mo. 384; Pearsal v. Chapin, 44 Pa. St. 9; Kinne v. Webb, 49 F. 512; Railroad Hayes, 10 S.E. 350; Home Ins. Co. Howard, 111 Ind. 544; Cobb v. Hatfield, 46 N.Y. 533; Graham v. Meyer, 99 N.Y. 611; Kimball v......
  • Girard v. St. Louis Car Wheel Company
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    • June 19, 1894
    ...v. Short, 107 Mo. 384. (5) And it is no less certainly established by the decisions in other states. Jeffers v. Forbes, 28 Kan. 174; Kinne v. Webb, 49 F. 512; Brown Norman, 65 Miss. 369; Sanborn v. Osgood, 16 N.H. 112; McMahon v. Plummer, 50 N.W. 480; Regensburg v. Notestine, 27 N.E. 108; B......
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    • February 10, 1914
    ...This rule is of particular application to mining lands as these have a speculative value. 18 Am. & Eng. Ency. Law (2 Ed.), p. 102; Kinne v. Webb, 49 F. 512; Grimes Sanders, 93 U.S. 62; Grannis v. Hooker, 31 Wis. 474; Hudson v. Cohoon, 193 Mo. 563. Or where the parties cannot be placed in st......
  • Clough v. Holden
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    ... ... Bigelow on Fraud, p. 75, et seq; 2 Chitty on Contracts, [11 ... Am. Ed.] p. 1089, note m., p. 1092; Ackerman v ... McShane, 9 So. 483; Kinne v. Webb, 49 Fed ... Rep.; 2 Daniel on Negotiable Instruments [4 Ed.] sec. 193; ... Brown v. Morgan, 65 Miss. 369; Brown v. Ins ... Co., 117 ... ...
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