Butler County v. Campbell, 38915

• Court: United States State Supreme Court of Missouri
• Citation: 182 S.W.2d 589,353 Mo. 413
• Docket Number: 38915
• Parties: Butler County, Missouri, v. Augustine Campbell and Blanche Campbell, his wife, Appellants
• Decision Date: 09 October 1944

182 S.W.2d 589

353 Mo. 413

Butler County, Missouri,
v.
Augustine Campbell and Blanche Campbell, his wife, Appellants

No. 38915

Supreme Court of Missouri

October 9, 1944

Appeal from Butler Circuit Court; Hon. Randolph H. Weber, Judge.

Affirmed.

Cope & Ponder for appellants.

(1) A mere general averment of fraud is nothing but a conclusion. It presents no issue for trial and will not sustain a judgment nor decree. 27 C.J., pp. 772, 773; Davidson v. Gould, 187 S.W. 591; Bushman v. Barlow, 15 S.W.2d 329; Shannon v. Crabtree, 71 S.W.2d 709; Mo. Dig. (Deeds), Key No. 188. (2) A petition charging fraud must set out clearly the facts making it a fraud. Burnham v. Boyd, 66 S.W. 1088; Loehr v. Murray, 45 Mo.App. 519. (3) Neither does plaintiff's petition make proper and sufficient offer of tender. It does not offer to tender the school fund mortgage of $ 350, nor the bond securing same. The theory upon which a tender is made in a suit to set aside a transaction is that the party seeking to rescind must place the opposite party in statu quo, and the equitable maxim of "he who seeks equity must do equity" applies. (4) One who seeks cancellation of the instrument must tender back what he received under it, or offer to do so. Sec. 11179, R.S. 1939; Richards v. Earl, 133 S.W.2d 381; Hawkins v. Heagerty, 156 S.W.2d 642; Davidson v. Gould, 187 S.W. 591. (5) To entitle a person to set aside his deed on the ground of fraud he must offer to return consideration received (in this case bond and school fund mortgage, as well as money expended). Thompson v. Cohen, 29 S.W. 885; First Methodist Church of Poplar Bluff v. Berryman, 261 S.W. 73; Mo. Dig. (Cancellation of Instruments), Key No. 24 (2). (6) A tender for any purpose to be effective must be for the full amount due, including interest and costs. St. Louis v. Senter Comm. Co., 124 S.W.2d 1180. (7) A demurrer will lie where a petition has several causes of action improperly joined in one count even though they may be reached by other means. Sec. 922, R.S. 1939; Adams v. Stockton, 133 S.W.2d 687. (8) Petition in one count, charging deceit, fraud, and conversion of assets of estate, and seeking equitable relief, held to violate rule that causes of action must be separately stated, in such a manner that they may be intelligently distinguished. Repetto v. Walton, 281 S.W. 411. (9) The statement of more than one ground of recovery for a single wrong is a statement of a single cause of action, but the rule does not apply so as to permit various statements which are necessarily inconsistent with each other. Roberts v. Quincy, O. & K. Ry. Co., 43 Mo.App. 287. (10) Plaintiff's petition fails to show on its face that a court of equity has jurisdiction. Where petition fails to show that plaintiff has no adequate remedy at law, and that the defendants are insolvent, equity will not lie. Davidson v. Dockery, 179 Mo. 687; Ready v. Smith, 170 Mo. 163; Humphrey v. Atlantic Mills, 98 Mo. 543; Stone v. Cook, 179 Mo. 534. (11) When several causes of action united in one suit are inconsistent, so that the proof of one necessarily disproves the other, and their joinder would otherwise be permissible, the court should, at the request of the defendant, require the plaintiff to elect before trial on which one he will proceed, and may do so of its own motion. Roberts v. Quincy, O. & K. Ry. Co., 43 Mo.App. 287. (12) The 1941 county court, composed of D. M. Githens, Presiding Judge, Hulen Spencer and Sam E. Woolard, Associate Judges, acting by and through the two associate judges, had no authority to set aside the order made by the two former county courts on the 20th day of December, 1940, as the new court could not legally convene and act until the first Monday in February, 1941. Sec. 2485, R.S. 1939. (13) The county court has no jurisdiction to set aside a deed to real estate. Platte County v. Locke, 242 S.W. 666. (14) Any condition or circumstance which affects the title, or that might be an expense to the purchaser, may be shown as a part of the consideration, and admissible in evidence as affecting the value of the property. Edwards v. Latimer, 183 Mo. 613. (15) The court has no jurisdiction to set aside a deed for sale of real estate unless fraud is pleaded and proved. Platte County v. Locke, 242 S.W. 666. (16) To set aside a deed for fraud it must be established by more than a mere preponderance of the testimony and removing all reasonable doubt, and is never presumed. Weissenfels v. Cable, 106 S.W. 1028; 27 C.J., 772; Mo. Digest (Fraud), Key No. 3. (17) The county court had jurisdiction of the land in question, and the interest of the county was sold and purchased in good faith, and a part of the consideration was received, which is sufficient in law unless fraud has been conclusively proven. Barton County v. Walser, 47 Mo. 204; Sturgeon v. Hampton, 88 Mo. 214. (18) Any valuable consideration, however small, will support a conveyance of land, and it need not equal the value of the property, and no one can complain to the consideration except a creditor, and a deed cannot be set aside for too small a consideration, and the mere inadequacy in price is not usually sufficient to establish fraud and invalidate the conveyance. 18 C.J. 166; Weissenfels v. Cable, 106 S.W. 1028; 27 C.J. 485; Moore v. Carlyle, 209 S.W. 309; Ward v. Stutzman, 212 S.W. 65; Phillips v. Stewart, 59 Mo. 491. (19) The cancelling of a deed is an exertion of the most extraordinary power of a court of equity, and ought not be exercised except in a clear case and upon strong and convincing evidence, and the fraud must be established beyond controversy, or by the most clear and satisfactory evidence, and cannot be presumed, but must be established beyond all doubt. 9 C.J. 1264; Jackson v. Wood, 88 Mo. 76; Bryan v. Hitchcock, 43 Mo. 527; Cochran v. Polk, 252 Mo. 261, 157 S.W. 603. (20) Mere inadequacy of price is not sufficient to establish fraud and invalidate the conveyance, and any valuable consideration however small will support a conveyance of land, and it need not equal the value. 18 C.J., p. 166; Weissenfels v. Cable, 106 S.W. 1028; 27 C.J., p. 485; Moore v. Carlyle, 209 S.W. 309; Ward v. Stulsman, 212 S.W. 65. (21) A school fund mortgage for purchase price is a good and valid consideration. Austin v. Loring, 63 Mo. 19; Wilcoxson v. Osborn, 77 Mo. l.c. 628; Williams v. Brownlee, 101 Mo. l.c. 312. (22) The county court is the agent and trustee of all state school fund money and cannot cancel an existing school fund mortgage by purchasing the land at a tax sale. Lippold v. Held, 58 Mo. 213. (23) Where one accepts purchase money, or any part thereof, they ratify and are estopped from bringing suit to set aside sale of real estate, even though the sale was void at the time it was made. Lawson v. Cunningham, 204 S.W. l.c. 1108; Austin v. Loring, 63 Mo. l.c. 22. (24) The law or statute which says, that the county court can only loan money of the school fund on land that is clear of debt is directory and not mandatory. Marion County v. Moffitt, 15 Mo. 624. (25) The duty of Thomas G. Campbell, as trustee, is fixed by the statute, and his only duty was to purchase as trustee, after his appointment in 1939, such land as was offered for taxes which failed to bring the amount of taxes due and costs, and this property in suit was deeded to Butler County in 1937, and not to the trustee. Sec. 9952-b, Sess. Acts, 1939. (26) The proof shows that no rents have ever been collected or received by defendants as they only got possession of the property after the death of the Kellys in January, 1943, and a court of equity should not collect rent from one who has never received any rent. Only payment of a school fund mortgage, or a release from the record will satisfy same. Lippold v. Held, 58 Mo. 213. (27) Anything which affects the title or might be an expense to the purchaser may be shown as a part of the consideration. Edwards v. Latimer, 183 Mo. l.c. 613. (28) A deed which shows upon its face to be a deed of a commissioner is sufficient, as such deed is only a quitclaim passing whatever interest the county may have. Henry v. Atkinson, 50 Mo. 266. (29) A deed is good if he acts as commissioner. Williams v. Brownlee, 101 Mo. 309. (30) If the county had power to sell though there were some irregularities, the title passes. Barton County v. Walser, 47 Mo. 189; Wilcoxson v. Osborn, 77 Mo. 621. (31) Where a contract to purchase land from the county is agreed upon and the consideration, or any part thereof, has been accepted, the title passes to the purchaser. Sec. 13785, R.S. 1939. (32) A deed executed by a commissioner though there are irregularities, and no authority of commissioner except in the deed itself, is sufficient. Elliot v. Buffington, 51 S.W. 208; Barton County v. Walser, 47 Mo. 189; Wilcoxson v. Osborn, 77 Mo. 621; Henry v. Atkinson, 50 Mo. 266. (33) A commissioner's deed does not warrant, but is only a quitclaim. Henry v. Atkinson, 50 Mo. 266; Pool v. Brown, 98 Mo. l.c. 684. (34) The court failed to find and allow interest on the taxes and other money expended by defendant. The fact that the interest might be an insignificant amount makes no difference. St. Louis v. Senter Comm. Co., 124 S.W.2d 1180. (35) The judgment is not based upon the evidence and the pleadings, as the court found the $ 950 Kelly School Fund Mortgage to be a lien against said property, while he tried the case on an entirely different theory, and ruled out some of the evidence offered by defendants in regard to same. It is elementary law that the judgment or decree must be based upon the evidence and the pleadings. American Ext. School of Law v. Ragland, 112 S.W.2d 110.

Charles T. Bloodworth, Sr., Special Prosecuting Attorney, for respondent.

(1) Plaintiff's petition states a cause of action on the grounds of the commission of a constructive fraud by the County Court of Butler County and the allegation of positive fraud and fraudulent...