Ash v. Wiley

• Decision Date: 04 February 1932
• Docket Number: No. 4933.,4933.
• Citation: 46 S.W.2d 897
• Parties: ASH et al. v. WILEY et al.
• Court: Missouri Court of Appeals

46 S.W.2d 897

ASH et al. v. WILEY et al.

No. 4933.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Rehearing Denied March 11, 1932.

Error to Circuit Court, Barry County; Emory E. Smith, Judge.

"Not to be officially published."

Action by C. J. Ash and another against C. L. Wiley and another. To review a judgment for plaintiffs, the named defendant brings error.

Affirmed.

O. R. Puckett, of Pineville, and Williams, Henson & Stone, of Springfield, for plaintiff in error.

J. M. Tatum and Lon Kelley, both of Pineville, for defendants in error.

SMITH, J.

This is a case originally brought by C. J. Ash, as plaintiff, against C. L. Wiley and Nell Wiley, his wife. Plaintiff's wife, Maud Ash, was made a party plaintiff during the progress of the trial. Defendants requested an instruction in the nature of a demurrer at the close of the plaintiff's case, and again at the close of the whole case, which requests were overruled, and the case was submitted to the jury and a verdict returned for the plaintiffs in the sum of $934.

On the same day that the verdict was returned the defendants filed their motion for new trial. This motion was overruled as to defendant, C. L. Wiley, now plaintiff in error, and was sustained as to defendant Nell Wiley. No objections were made or exceptions saved as to the court's action in sustaining the motion for new trial as to defendant Nell Wiley, and no action was taken before the trial court to have this error corrected, if it were an error.

In due time the defendant C. L. Wiley took necessary steps for an appeal to this court. That appeal was dismissed, but within the time provided by law the defendant brought the case here on a writ of error.

In discussing the case hereinafter we shall refer to defendants in error, C. J. Ash and Maud Ash, as plaintiffs, and plaintiff in error, C. L. Wiley, as defendant.

The action was begun in McDonald county, and upon petition for change of venue was transferred to the circuit court of Newton county, and was later, upon stipulation of the parties, transferred to the circuit court of Barry county, where it was tried on the 16th day of November, 1929.

The suit is based upon the following petition, caption and signature omitted:

"Plaintiff states that the defendants are husband and wife and for his cause of action states that on the 29th day of November, 1926, the defendants sold to the plaintiff a tract of land described as follows, to-wit:

"Beginning at the north west corner of the north east quarter of the south west quarter of section 26 township 22, Range 32; thence due south to the center of Big Sugar Creek; thence in an easterly direction up the center of Big Sugar Creek to a point opposite the center of the mouth of the first ravine or hollow; thence up the center of said ravine or hollow to the north line of said north east quarter of the south west quarter of section 26, township 22, Range 32; thence west to the place of beginning, containing 17 acres, more or less, except lots 27, 28, 29, 30, and 70 and that part of lots 26 and 71 east of the west line of the north east quarter of section 26 township 22, Range 32. The grantors reserving a road way 20 feet wide known as Highland Drive, beginning at the west line of the north east quarter of the south west quarter of section 26, township 22, Range 32; thence east to intersect the public road. The above lots being a portion of Sugar Beach Division of the above described tract of land in McDonald County, Missouri.

"That the said defendants with the intent to deceive and defraud the plaintiff represented to the plaintiff that the defendants were seized of the indefeasible estate in fee in said real estate in the sum of seventeen (17) acres more or less; that the defendant, C. L. Wiley, took the plaintiff on the premises aforesaid mentioned and pointed out to plaintiff the boundaries of the seventeen acres and represented to plaintiff that within the boundaries so shown by the defendant, C. L. Wiley, that there were seventeen acres in said boundaries; that the plaintiff does not reside in McDonald county but lives some distance from the county said real estate is situated and on account of the assurance of Wiley, aforesaid, that the plaintiff was buying seventeen acres of land the plaintiff did not for that reason have said premises surveyed; relying on said representations and assurances of defendant, C. L. Wiley, the plaintiff purchased said real estate of the defendant on the 29th day of November, 1926, and on said day paid defendants the sum of twelve hundred and fifty dollars and assuming a mortgage on the above mentioned premises in the sum of seven hundred and fifty dollars; that in truth and as the defendants well knew the said representations so made as to the seventeen acres were false and the defendants were not vested with an indefeasible estate in fee in the said premises of seventeen acres, but the said defendant only owned the sum of 7.661 acres, and that the said representations of defendants that they owned the seventeen acres were false and untrue and were made by the defendants as true for the purpose of having plaintiff accept the same as true and act thereon; that the plaintiff relying on the said false and fraudulent statements and representations relating to the number of acres of land in such description so made by the defendants and believing them to be true purchased the said premises.

"Plaintiff states that by reason of the false and fraudulent statement and representations by the defendants to the plaintiff that he paid to the defendants the sum of $934.00 more money than was due the defendants and plaintiff was wrongfully defrauded into accepting a deed conveying said land less by 9.339 acres than he believed and was wrongfully led by defendants to believe he was getting.

"That plaintiff has often demanded from defendants said sum of money out of which he was tricked and defrauded but the defendants have refused to make restitution; that because of the fraudulent representations made by said defendants the plaintiff has been damaged in the sum of $200.00.

"Wherefore, plaintiff prays judgment against defendants for the sum of $934.00 paid for land he did not receive and for $200.00 damages and for a total judgment of $1,134.00 together with the costs of this action."

After a demurrer to the petition was overruled, the defendants filed an answer admitting that they sold to plaintiff the certain tract or parcel of land described in his petition, upon the consideration stated, and admit that the sale was made after defendant C. L. Wiley had taken plaintiff upon the land and pointed out to him the boundaries and extent of the parcel so sold and described, and denied generally each and every other allegation in said petition contained. The answer contained the following averments:

"Defendants further answering aver that prior to said date of sale and on July 31st, 1926, defendants platted the tract or parcel of land described in plaintiff's petition as a part of `Sugar Beach Division,' a subdivision of the northeast quarter of the southeast quarter of section 26, township 22, Range 32, McDonald County, Missouri, and caused the same to be duly filed and recorded in the office of the recorder of deeds for said county at Pineville, Missouri, as of that date, where said plat also appears in `Surveyors Record I,' at page 75.

"That said sale was made by defendants to plaintiff with reference to said plat, which correctly showed on its face the exact dimensions of the tract so purchased by plaintiff, within the metes and bounds given by his deed therefor, as well as the relative location to Big Sugar Creek and its location within the forty acre tract out of which the same was carved and platted, with its comparative quantity, and which plat also shows the several lots, driveways, courts, walks and sub-parcels of which said subdivision is composed, all designed as a site for summer homes and cottages, recreation playgrounds, and to give the public access to the waterfront of Big Sugar Creek, all as a summer resort proposition; that the purchase price of the entire parcel was arrived at by both plaintiff and defendant by the estimated value of lots 112, 114 and 115 designated upon said plat, each of which lots were improved by summer cottages of substantial construction, and the relative value of the balance of said tract; that by reason of such improvements, the advantageous location thereof and the scenic view therefrom, the value of said lots 112, 114, and 115, was estimated and priced at $500.00, $500.00, and $600.00 respectively and the unimproved and less favorably located balance of said tract, less the parts thereof expressly excepted, at the price of $400.00 and the whole of said platted tract, with such exceptions, was sold by defendants in gross, and bought by plaintiff in gross, without regard to quantity, for the sum of two thousand dollars.

"That said tract is unfit for farming and has little or no value for any purpose other than that for which it was appropriated and designed as above set forth."

The reply was a general denial of the new matter pleaded in the answer.

As heretofore stated, a verdict and judgment was had for $934 against both defendants in the trial, and motion for new trial overruled as to C. L. Wiley and sustained as to Nell Wiley.

The case is here on two assignments of error: First, the court erred in refusing, at the close of plaintiffs' case, to declare that under the law and the evidence in the case the plaintiffs are not entitled to recover; and, second, in refusing to so declare when requested by the defendants at the close of the whole case.

Plaintiffs' cause of action as set forth in their petition is one for damages for fraud and deceit in the sale of real estate.

The authorities agree that such a cause of action must be based on false representations of the seller of material facts leading up to the sale,...