Clinkenbeard v. Weatherman

• Citation: 57 S.W. 757,157 Mo. 105
• Parties: CLINKENBEARD et al. v. WEATHERMAN et al.
• Decision Date: 12 June 1900
• Court: United States State Supreme Court of Missouri

57 S.W. 757

157 Mo. 105

CLINKENBEARD et al. v. WEATHERMAN et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

VENDOR AND PURCHASER — RESCISSION — FRAUD — CONVEYANCE BY GRANTEE — TENDER OF DEED — REVESTING TITLE — INSOLVENCY — EQUITY.

1. A bill to rescind a contract of sale of land for fraud, alleging a conveyance thereof by the grantee and his wife to their daughter, who is joined with them as a party plaintiff, and making tender of a deed, does not show a transfer of the land placing plaintiffs beyond equity jurisdiction, since the deed tendered is sufficient to revest all the title received.

2. Where false and fraudulent representations as to the value, cultivation, improvement, character, and accessibility of distant lands were made knowingly with intent to defraud and deceive a purchaser who had not seen the lands and relied on the truth of such representations, equity will entertain jurisdiction to rescind the sale.

Appeal from circuit court, Taney county; James T. Neville, Judge.

Bill by Louis Clinkenbeard and others against James A. Weatherman and others to rescind a contract of sale of land and adjust equities. From a judgment in favor of the defendants, plaintiffs appeal. Reversed.

Wm. H. Johnson, for appellants. Groom & McConkey and W. G. Robertson, for respondents.

MARSHALL, J.

This is a suit in equity to cancel a conveyance of land in Taney county, and to recover the purchase price paid. The name of James A. Weatherman appears as one of the defendants in this case, but, as he does not appear to have been served with process, and as his name is omitted from the second amended petition, and he is not referred to therein in any manner, it is not clear why his name should appear as a defendant in the record. The plaintiffs are Louis Clinkenbeard, Anna Clinkenbeard, his wife, and Luella Clinkenbeard, their daughter. The defendants are Solomon Kornbleet, Katie Kornbleet, his wife, and Hershel Bartlett. The cause comes here on plaintiffs' appeal, upon a second amended petition, a demurrer thereto, which was sustained, and final judgment rendered for the defendants. These pleadings are as follows:

Second Amended Petition.

"Now come the plaintiffs, Louis, Anna, and Luella Clinkenbeard, and for their cause of action state: That on or about the 7th day of November, 1894, Solomon Kornbleet was the owner of the following lands situated in Taney county, Missouri, to wit: The E. ½ of N. E. ¼, N. W. ¼ of N. E. ¼, of Sec. 33, and W. ½ of N. W. ¼ of Sec. 34, in Twp. 22, N., of range 21 W. That on or about the 6th day of November, 1894, said Kornbleet made offers to plaintiffs to sell them the above land, and represented to plaintiffs that said land was worth $35 to $40 per acre. That 80 acres of said land was in cultivation. That there was good wire fence around the whole 200-acre tract. That there was upon said land a good five-room frame house, nicely plastered, and in good repair. That there was upon said land a good barn, 70 feet square, in good repair. That there was upon said land a good, large apple and peach orchard. That all of said land was level, and capable of cultivation. That the said tract lay in a good neighborhood, seven miles from the town of Forsyth, and 1½ miles from Kirbyville. That the roads leading thereto were good and smooth; and that said land was reasonably worth the sum of $3,000. All of said statements so made by Solomon Kornbleet were false and fraudulent, and said Kornbleet well knew them to be false and fraudulent, and wholly untrue. But that said Kornbleet made said false representation for the sole purpose of cheating, defrauding, misleading, and deceiving these plaintiffs. That these plaintiffs were residents of the city of St. Joseph, in this state, and had never seen said land, and did not inspect same, but, wholly relying on the false representations of defendant Kornbleet, and believing said representations to be true, did buy said land from said Kornbleet at the sum and price of three thousand dollars, and did pay said Kornbleet the sum of twenty-four hundred dollars, and did execute to said Kornbleet a promissory note for the sum of six hundred dollars for the balance of said purchase price. That at the request of Solomon Kornbleet said note was made payable to the order of Katie Kornbleet, the wife of Solomon Kornbleet, and dated November 7, 1894, due one year from date, and secured by deed of trust executed on November 7, 1894, conveying the above-described land so purchased by plaintiffs to Hershel Bartlett, trustee, for the securement of said note above for the sum of six hundred dollars. This deed of trust is recorded in the Taney county recorder's office at Book 2, page 153. That on the 8th day of November, 1894, Solomon and Katie Kornbleet gave plaintiff Louis Clinkenbeard a deed to said land, which is recorded in Book No. 10, at page 74, in the recorder's office of Taney county, Mo. That afterwards, in the adjustment of equities between plaintiffs, Louis and Anna Clinkenbeard gave Luella Clinkenbeard, their daughter, a voluntary deed to said land, to take effect in possession after the death of her father, Louis Clinkenbeard. That about the month of April, 1895, plaintiff Louis Clinkenbeard visited Taney county, and for the first time inspected said land so bought of Solomon Kornbleet, and then discovered for the first time the fraud and deceit practiced upon plaintiffs, and that all the representations and statements made by said Solomon Kornbleet were false and wholly untrue. That said land was rough, and poorly improved, with a two-room box house, only about 30 acres in cultivation, no orchards, only a small tract under fence, and a log barn in poor repair. That it lay 15 miles from the town of Forsyth, seven miles from Kirbyville, in a sparsely-settled neighborhood, and was reached by very rough, broken roads. That the land was rough, and of very little value; not worth to exceed six hundred dollars. Plaintiffs state that Katie Kornbleet was fully aware of the fraud practiced upon these plaintiffs, and was a participant therein. That she paid plaintiffs nothing for the note of $600 above mentioned. Plaintiffs state that upon the discovering of fraud they immediately approached defendants, and demanded a rescission of the contract, offering to deed back to defendants the property so above received of them, and demanding that defendants make them whole in the premises. But defendants wholly refused to do this, or to make any settlement with plaintiffs. Whereupon plaintiffs brought suit in the circuit court of Buchanan county, Mo., in December, 1895, for a rescission of the contract and equitable relief. That afterwards, in December, 1896, plaintiffs took voluntary nonsuit in the Buchanan circuit court, and instituted their action in this court. Plaintiffs state that defendants are insolvent, so that an action in damages at law would be of no avail; that the land in Taney county so above set out is the only resource these plaintiffs have against defendants; that since the institution of this action the above deed of trust has been foreclosed, and defendant Katie Kornbleet has bought said land in at the sum and price of $120; that, unless these plaintiffs can obtain equitable relief, they are wholly without remedy. Plaintiffs state that they stand ready, and have ever stood ready, to reconvey to defendant Solomon Kornbleet the land so received from him, the same being all the property, land, goods, and other things of value received of the defendants, and herewith tender into court good and sufficient deeds from plaintiffs to defendants for said land. Plaintiffs therefore pray the court to grant them a rescission of this contract, and give them a judgment for the sum of $2,400 against defendants. Plaintiffs ask the court to cancel the deed of trust and note above set out. Plaint...