Jones v. Rush

• Decision Date: 21 May 1900
• Citation: 156 Mo. 364,57 S.W. 118
• Court: Missouri Supreme Court
• Parties: JONES v. RUSH et al.

57 S.W. 118

156 Mo. 364

JONES v. RUSH et al.

Supreme Court of Missouri, Division No. 1.

May 21, 1900.

APPEAL — MATTER IN PAIS — EXCEPTIONS — PRESERVATION — PLEADING — RIGHT OF REVIEW — VENDOR AND PURCHASER — DEEDS — FRAUDULENT REPRESENTATIONS — VENDOR'S LIEN — MORTGAGES.

1. Where an exception to an order denying a new trial is shown by the bill of exceptions, matters in pais will be reviewed, though such exception is not shown by the record, since recital of exceptions in the bill of exceptions is sufficient.

2. Under a general denial, any legal evidence is admissible which tends to show that the statements in the petition constituting the plaintiff's cause of action are not true; and to that end the defendant may show affirmatively facts inconsistent with the plaintiff's statements, tending to prove them to be false. A defendant is required to plead affirmatively only matters in the nature of confession and avoidance.

3. A vendor's lien is not the result of a direct contract therefor. It arises by implication of law. If other security is given at the time, the law does not imply a vendor's lien. If, however, the vendor is induced by fraud to accept other security, his lien as vendor is not waived.

4. A court of equity will not listen to one who complains of having been misled when it appears that he has deliberately refused or grossly neglected to use his own senses to be informed.

5. Where it is attempted to show that a deed absolute on its face was intended to be a mortgage, the evidence must be clear, unequivocal, and convincing.

6. Where, in a suit to foreclose a vendor's lien, the petition was insufficient, yet, the defendant having pleaded mere evidentiary matters in his answer, by reason of which plaintiff filed a reply, and both parties treated the petition and reply together as stating plaintiff's claim, on the trial, the fact that the petition was insufficient, not having been objected to on the trial, cannot be urged on appeal to preclude review of a judgment for defendant.

7. Plaintiff contracted to convey land to defendant in consideration of a payment in money and a deed to certain lots. In a suit to foreclose a vendor's lien on the land, plaintiff alleged that the conveyance of the lots was a mortgage to secure the balance of the price of the land, and was void for misrepresentation as to the value of the lots. Plaintiff's neighbors owned lots adjoining those conveyed, and plaintiff had ample opportunity to investigate their value for nearly two years before suit was brought. Held, that plaintiff's neglect to determine the value of the lots for such a length of time, with ample opportunity to have done so, constituted such laches as precluded relief from the alleged deed for fraud, and hence that the deed supplanted the vendor's lien on the property contracted for.

8. Where it was shown that a deed was given in pursuance of a contract for purchase of plaintiff's land in consideration of a cash payment and transfer of the land conveyed, evidence that plaintiff appointed defendant his agent to sell the lots, and that defendant was to account for them for the balance of the price, with interest, and that defendant consented to take the lots as security, and promised to sell the land and pay plaintiff within two years, was insufficient to show that the deed was in fact a mortgage.

Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Suit by James V. Jones against Eva M. Rush and another to foreclose a vendor's lien. From a decree in favor of the defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

This is a suit in equity to foreclose a vendor's lien. The petition states that in May, 1894, plaintiff conveyed 280 acres of land (describing it) in Macon county to defendant Eva M. Rush, and gave her possession thereof, which she still retains; that the consideration of the conveyance was $4,500, of which defendant paid $1,500, and still owes plaintiff $3,000, for which he is entitled to a vendor's lien. The prayer is for a foreclosure sale to satisfy the vendor's lien, and general relief. The answer admits the purchase of the land, but denies that the consideration was $4,500, and avers that the transaction originated in a written contract, dated November 8, 1893, which was to the effect that plaintiff and wife agreed to convey by deed to defendant Eva M. Rush the land in question on May 1, 1894, and defendant agreed to pay plaintiff thereupon $1,500 in cash, and deed to him certain lots in Dupage county, Ill., and stipulating, also, conditions for deferring the consummation of the transaction until October, 1894, upon certain contingencies named, which it is unnecessary here to repeat. Then the answer goes on to aver that in accordance with that contract the sale was consummated in May, 1894, and the plaintiff and wife deeded the Macon county land to defendant Eva M. Rush; she, or her husband for her, paying plaintiff the $1,500 required, and conveying by proper deed to him the Illinois lots. Plaintiff, by reply, admits the execution of the contract of November 8, 1893, and the conveyance to him of the Illinois lots as therein required, but avers that it was understood and agreed between him and defendants that the deed to the Illinois lots, though in form an absolute deed, should be considered only as a mortgage for the $3,000 deferred payment, and that in taking that security plaintiff was imposed on and deceived by the false representation of defendants to the effect that the Illinois lots were worth $5,000, whereas in fact they turned out to be not more than $200 in value; that it was agreed between them that defendants should act as agents for plaintiff, and sell the Illinois lots, and out of the proceeds pay him the $3,000 balance of the purchase money of the Macon county land. And plaintiff, in his reply, offered to reconvey the Illinois lots to defendants. The plaintiff's evidence tended to show that the transaction was consummated in compliance with the written agreement of November 8, 1893 (that is, that in May, 1894, or about that time, plaintiff conveyed by deed the Macon county land to defendant Eva M. Rush, and received in return the $1,500 and the deed to the Illinois lots); that at the time the agreement was made (November 8, 1893) plaintiff had never seen the Illinois lots, and had no information of them except that derived from defendant W. I. Rush, who represented them to be worth from $4,000 to $5,000, and expected to be able to sell them for the latter sum within six months, and was sure he could do so in two years; that plaintiff, in writing, appointed him his agent to sell the lots, agreeing to give him for his fee all over $3,000 realized on the sale to be made; that in May, 1894, when the deeds were exchanged, plaintiff had made no further inquiry into the value or condition of the Illinois lots, nor did he attempt to find out anything about them until November, 1895, when he caused inquiry to be made, and ascertained that they were of only trifling value. The oral testimony for plaintiff also tended to show that the price agreed on for the Macon county land was $4,500, which was the consideration expressed in the deed, and that the deed to the Illinois lots was taken only as security for the $3,000 deferred payment. The testimony on that point will be referred to more in detail hereinafter. As to the value of the Macon county land, the plaintiff's testimony was that it was worth $10 to $15 an acre. The testimony on the part of defendants tended to show that there was no other agreement between the parties than that expressed on the face of the papers (that is, that defendants agreed to give $1,500 and the Illinois lots in full payment for the Macon county land); that there was no understanding that the deed to the Illinois lots was to be taken to be a mortgage; and that no misrepresentation was made as to the value of those lots. As to the value of the Macon county land, the testimony ranged from $750, the assessed value, up to $10 or $12 an acre. The court found: "The Illinois property was worth at the time not to exceed $400 cash, and the 280 acres well worth $3,000 cash; that is, $1,500 less than the consideration expressed in the deed, and $1,200 more than the plaintiff received in cash ($1,500) and ($400) value of the Illinois property. In other words, plaintiff receives $1,900 for $3,000 worth of property, losing thereby about $1,100 in the deal." The learned trial judge, in his written opinion on file, said: "The plaintiff in this case is an educated gentleman, and, understanding and using perfect English, must be presumed to possess ordinary prudence and caution. Why this plaintiff and his brother suffered themselves to be deceived as to the value of the Illinois property is one of those strange happenings that occur too often. Yet the courts refuse relief when, as in this case, ample opportunity was afforded, and was actually at hand, for them to have ascertained the very truth; two of their neighbors having just before purchased of this defendant similar property in and near this same block." There were a finding and a decree for defendants, a motion for new trial, which was overruled, and appeal by plaintiff.

Dysart & Mitchell, for appellant. Ben El Guthrie, for respondents.

VALLIANT, J. (after stating the facts).

1. Respondents insist at the threshold that there is nothing in pais to review, because the record proper does not show that plaintiff excepted to the ruling on his motion for a new trial. The record proper does not so show, but the bill of exceptions does, and that is correct. Exceptions should not be contained in the record proper. It is the office of the bill of exceptions alone to show the exceptions that are taken and preserved during the progress of the case.

2. The pleadings in this case contain a good deal of matter that is merely evidentiary. The petition is, in effect, simply a bill...