Cook v. Smith
| Decision Date | 05 November 1914 |
| Citation | 170 S.W. 672,184 Mo.App. 561 |
| Parties | CHARLES E. COOK, Respondent, v. W. C. SMITH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED.
Judgment affirmed.
Talma S. Hefferman and Wright Brothers for appellant.
(1) Plaintiff did not rely on any statements of Smith, but on the papers. He knew from Smith that he was without knowledge other than the sources imparted. Smith imparted to Cook all the facts within his knowledge. There was no suppression of facts. Bradford v. Wright, 145 Mo.App. 630. (2) Before plaintiff can recover for fraud, he must prove it that defendant made the fraudulent representations; that plaintiff had the right to rely on the statements and did rely on them and that that influenced his actions. Shearer & Martin v. Hill, 125 Mo.App. 375; Younger v. Hoge, 211 Mo. 444, 458; Funding v Heskett, 125 Mo.App. 516, 530; Troll v Spencer, 238 Mo. 81, 101. (3) Both parties had equal means of information hence action must fail. Hines v. Royce, 127 Mo.App. 718; Bradford v. Wright, 145 Mo.App. 630. (4) Plaintiff must act with diligence in undertaking to rescind. Landon v. Tucker, 130 Mo.App. 704; Implement Co. v. Ellis, 125 Mo.App. 692.
Hamlin and Seawell for respondent.
(1) The appellant positively stated that he was the owner of this land, and told respondent that it was located on Horse Creek, northeast of El Paso. This was untrue, and hence fraud. If appellant did not know this to be true, he should not have made the statement and having made it, even without knowledge of its falsity, would convict him of fraud in a court of equity. Judd v. Walker, 215 Mo. 312. (2) If appellant thought that this land was in existence in said county, and respondent likewise thought so, and respondent executed a note and mortgage under such circumstances, then of course he is entitled to relief upon the ground of mutual mistake, or failure of consideration. Clinkenbeard v. Weatherman, 157 Mo. 105-112; Dunn v. White, 63 Mo. 184; Norton v. Bohart, 105 Mo. 615; Engel v. Powell, 154 Mo.App. 233-237; Jones v. Bank, 144 Mo.App. 428. (3) Appellant received something for nothing, and it would be inequitable and unjust for him to profit by such a transaction, even if there were no fraud and when it appeared from the evidence that respondent tendered back a deed and demanded a cancellation of the security. The trial court did right in entering judgment for him and it should be affirmed.
This is a suit to rescind a contract of sale of some land described as being in El Paso county, Texas, and to have the court cancel and declare void the note and mortgage to secure same given by plaintiff to defendant in payment of the purchase price. The court granted the relief prayed.
The petition is in two counts. The first states as grounds for relief that plaintiff purchased the Texas land from defendant and gave him the note and mortgage in payment thereof, but that defendant, having recently purchased said land from one Martin and, holding a deed from him with the name of the grantee left blank, instead of taking a conveyance from Martin to himself and then conveying to this plaintiff, caused the deed from Martin to be made direct to plaintiff as grantee. It is then alleged that neither Martin nor the defendant owned the land conveyed and, in fact, that there was no such land in existence in El Paso county, Texas, as that described and purported to be conveyed in the deed from Martin to plaintiff; that the consideration of the note and mortgage given by plaintiff to defendant has wholly failed and same are without consideration; that defendant's representation that he owned said land and had a right to convey same and the description and location of the land which defendant represented he owned and was selling and causing to be conveyed to plaintiff were and are wholly false and untrue. The plaintiff alleges that, on discovering the fraud and nonexistence of any such land as that sold and purported to be conveyed to him, he tendered defendant a deed reconveying to him by the same description as in the deed to plaintiff this fictitious land and demanded the surrender and cancellation of the note and mortgage, which failing, this suit was brought. It is on this count that plaintiff recovered judgment.
The land is described in a way different from that used in this and other States where the United States surveyed the land into sections, townships and ranges, and conveyances describe the land in that manner. The description here is: "All of section thirteen (13), Patent Abstract No. 104, Certificate number 2115, Survey No. 37, Original Grantee G. C. and S. F. Railroad Company and Patented to Emily M. Perry, May 10, 1882, by Patent No. 77, Volume 70, Deeds of Recorder, El Paso county, Texas, containing 640 acres more or less according to the Government Survey." It is shown that in Texas public land is sold to purchasers with little or no reference to location by issuing certificates calling for the number of acres paid for and the purchaser then locates and has surveyed a tract of the size called for and a patent is issued to him accordingly. The description in subsequent conveyances is taken from the certificate, survey, patent, etc.
It was abundantly shown, and is practically conceded, that no land answering to the description contained in the conveyance to plaintiff can be found or exists in El Paso county, Texas. Plaintiff ascertained this by a visit to that State in search of his land. There is some evidence that a tract of land answering in part to this description may be found in another county in that State and would be looked for in such other county by those familiar with land descriptions there. It is not shown, however, that either defendant or Martin had title to such other land. This point, therefore, needs no further discussion.
The real issue in the trial court, and on this there is a sharp conflict in the evidence, especially of the parties themselves, was as to whether plaintiff bought the land from defendant or from Martin with defendant acting for plaintiff in the negotiations. The...
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