Clark v. Carter

• Citation: 234 Mo. 90,136 S.W. 310
• Parties: CLARK v. CARTER et al.
• Decision Date: 31 March 1911
• Court: United States State Supreme Court of Missouri

136 S.W. 310

234 Mo. 90

CLARK v. CARTER et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

1. APPEAL AND ERROR (§ 1078)—QUESTIONS REVIEWABLE—ABANDONMENT OF ERRORS.

Where counsel for appellant, assigning as error the admission of testimony, did not brief the point nor cite any authority in support thereof, nor argue the same, the point will be deemed abandoned.

2. VENDOR AND PURCHASER (§ 31)—MISTAKE OF LAW.

One purchasing real estate may not sue for the cancellation of the transaction on the ground of a mutual mistake of law of the parties.

3. VENDOR AND PURCHASER (§ 31)—MISTAKE OF FACT.

Where the executor appointed in a will was authorized to sell real estate, and testator by codicil substituted a third person as executor, without revoking the authority of the original executor to sell, or without conferring such authority on the third person, and the third person and a purchaser from him acted under the mutual mistake that the third person had authority, the mutual mistake was one of fact, and the purchaser could sue for the cancellation of the transaction.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by T. W. Clark against G. H. Carter, trustee, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is the second appeal of this cause to this court. The opinion delivered upon the former appeal is reported in 200 Mo. 515, 98 S. W. 594.

The present suit is to set aside and cancel an executrix' deed, conveying certain real estate to plaintiff, upon the grounds of mistake; to declare null and void a certain promissory note given in part payment of the purchase money of said land, and a deed of trust conveying the same land to G. H. Carter, trustee; to secure the payment of said note; and to recover $500, a part of the purchase money paid at the time of the execution of the executrix' deed. A trial was had which resulted in a judgment and decree for the plaintiff, and the defendants duly appealed the cause to this court.

Thomas Harber was the testator, and Margaret M. Harber was his widow and the executrix mentioned. G. H. Carter was the trustee mentioned in the deed of trust, and C. C. Carter was the administrator de bonis non of the estate of said Margaret M. Harber. As there is no question raised as to the pleadings, they will therefore be eliminated from the case, with the passing observation that they were sufficiently comprehensive to support the decree of the circuit court. The facts of the case are practically undisputed, and they are correctly stated by the court in the decree, as follows (formal parts omitted):

"Now, on this the 16th day of December, A. D. 1907, same being the thirteenth day of the regular December, 1907, term of this court, this cause coming on to be heard, the plaintiff, T. W. Clark, appears by his attorney, M. E. Morrow; the defendant C. C. Carter, administrator de bonis non of the estate of Margaret M. Harber, deceased, and defendant G. H. Carter, trustee, both appeared by their attorneys, James Orchard and O. L. Haydon, and the plaintiff and both the said defendants announced ready for trial. The court, after hearing the evidence introduced by both the plaintiff and the defendants, and the argument of counsel, and being fully advised on all matters in issue in this cause, doth find that heretofore Thomas Harber died testate in Howell county, Mo.; that his last will was duly probated by the probate court of Howell county on the 27th day of April, 1892; that in said last will said Thomas Harber provided that there should be paid to the board of missions of the Cumberland Presbyterian Church, and the educational commission of the McAdow, Missouri, Ozark, and Missouri Valley synods of the Cumberland Presbyterian Church, the sum of $2,000 each; that said bequests should be paid from the sale of real estate only, to be sold after the death of his wife, Margaret M. Harber, in case she should survive him. That said testator by his last will appointed one Milton Moore trustee, with full power to sell real estate left by him, sufficient for the payment of said bequests, according to the provisions of said will. The court doth find further that said Margaret M. Harber, wife of said testator, survived her said husband; and that she duly qualified as executrix of last will of said Thomas Harber, deceased. That said Thomas Harber died seised and possessed of the following described lands in said Howell county, to wit: Lots one (1) and two (2) of the southwest quarter of section thirty (30), township twenty-four (24), range eight (8) west, the lands in question.

"The court doth further find that said Margaret M. Harber, as said executrix, on the 24th day of February, 1898, for a consideration of $1,000, undertook to sell and convey to plaintiff all the right, title, and interest of the estate of said Thomas Harber, deceased, in said lands; and that she executed her executrix' deed therefor, which said deed is recorded in Book 63, at page 169, of the Deed Records of said Howell county, that in payment for said lands plaintiff paid to said executrix the sum of $500 in cash, and executed and delivered to her a note of the date last aforesaid for the sum of $500, and on same date executed and delivered to defendant G. H. Carter, trustee, a deed of trust, of record in the office of the recorder of deeds in said county, in Book 64, page 37, by which he conveyed said lands to the said Carter, in trust to secure the payment of said note. That in making and executing said executrix' deed, attempting to convey said lands to plaintiff, said executrix represented to plaintiff that said Thomas Harber, by his said last will, did empower and direct his executrix to sell and convey said real estate for the purpose of paying said bequests, and did also give said executrix the power to sell at public or private sale as might seem to her best; and the court doth find that plaintiff, T. W. Clark, believed and relied on the said representations as to the power and authority of said executrix to sell and convey good title to said lands, and that plaintiff paid said money and executed and delivered said note and deed of trust, believing that her said executrix' deed conveyed the absolute title to said lands. The court doth further find that said executrix departed this life, and never at any time applied any part of the consideration so received as aforesaid from plaintiff for said lands, to the payment of any part of the bequests mentioned in said will. And the court doth find that said executrix, as such, had no power to convey the title to said lands and that her said executrix' deed conveyed no title whatever to plaintiff; that the payment by plaintiff to said executrix of said $500, and the execution and delivery by him to her of said note for a like sum, and the execution and delivery by him to G. H. Carter, trustee, of said deed of trust conveying said lands, to secure the payment of said note, were without consideration, and were executed and delivered under mutual mistake of facts as to the intention of said Thomas Harber in conferring a power of sale upon his said executrix. The court finds that this power of sale of said real estate was conveyed by said will upon one Milton Moore, as trustee, to be exercised after the death of Margaret M. Harber, in case his said wife should survive said testator.

"The court finds that said Margaret M. Harber departed this life without paying any part of the legacies aforesaid, and that neither of said legacies have ever been paid in full by any one else. And the court doth find that plaintiff ought to recover from the estate of the said Margaret M. Harber, deceased, the said sum of $500 so paid her, as aforesaid, on said lands; also that said note of $500 for the remainder of said consideration for said lands, and deed of trust executed as aforesaid to said G. H. Carter, should be canceled and for naught held. The court doth further find that the life estate of said Margaret M. Harber, deceased, in said lands, which was conveyed to plaintiff by her quitclaim deed, was worth the sum of $250. The court doth find that defendant C. C. Carter, administrator de bonis non of the estate of said Margaret M. Harber, deceased, should pay plaintiff $250, the amount paid by plaintiff to said Margaret M. Harber, as aforesaid, less the value of her life estate in said real estate; and that he cancel and deliver to plaintiff said note of $500, executed by plaintiff to said Margaret M. Harber, as aforesaid, on which payment and delivery of note, plaintiff should quitclaim his interest in said lands to the estate of said Margaret M. Harber, deceased.

"Therefore, it is considered, ordered, and adjudged, and decreed by the court that said note of $500, dated February 24, 1898, and the said deed of trust executed by plaintiff as aforesaid, conveying said lands to G. H. Carter, trustee, of the date and record last aforesaid, be and the same is hereby canceled and for naught held and esteemed. And the court doth further order, adjudge, and decree that plaintiff have and recover of and from defendant C. C. Carter, administrator of the estate of Margaret M. Harber, deceased, the sum of $250, the amount paid by plaintiff as aforesaid to said executrix, less the value of her life estate in said lands.

"It is further ordered, adjudged, and decreed by the court that the temporary injunction heretofore granted in this cause be and the same is hereby made perpetual; and it is further ordered that defendant C. C. Carter, administrator, as aforesaid, pay all costs of this action in this court."

To which action of the court in making and entering said finding and judgment, the defendants then and there in open court objected and excepted at the time. Such additional facts as may be necessary for a proper understanding of the questions involved in the case will be stated in connection with the question presented.

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