Cook v. Smith

• Decision Date: 05 November 1914
• Docket Number: No. 1040.,1040.
• Parties: COOK v. SMITH.
• Court: Missouri Court of Appeals

170 S.W. 672

184 Mo. A. 561

COOK v. SMITH.

No. 1040.

Springfield Court of Appeals. Missouri.

November 5, 1914.

Rehearing Denied November 27, 1914.

1. CANCELLATION OF INSTRUMENTS (§ 4) — GROUNDS — NOTE AND MORTGAGE — DESCRIPTION OF LAND CONVEYED.

That there is no land answering to the description of that conveyed to the purchaser will authorize a decree canceling a note and mortgage given in payment of the purchase price of the land, though land answering in part to the description might be found in another county in the state, and would be looked for there by persons familiar with land descriptions in that state, especially where it does not appear that the grantor had title to such other land.

2. APPEAL AND ERROR (§ 1011) — FINDINGS OF FACT — CONFLICTING EVIDENCE.

A finding on conflicting evidence will not be disturbed on appeal.

3. CANCELLATION OF INSTRUMENTS (§ 25) — PURCHASE-MONEY NOTE AND MORTGAGE — DEFENSE.

In a purchaser's action to cancel a purchase-money note and the mortgage securing same, because there was no land answering the description in the deed to plaintiff, it was no defense that defendant had been deceived by his vendor and did not know that there was no land of such description.

4. CANCELLATION OF INSTRUMENTS (§ 34) — COMMENCEMENT OF ACTION — LACHES.

A suit to cancel a purchase-money note and the mortgage securing same, because there

was no land answering the description in the deed to plaintiff, was not barred by laches, where the delay was not unreasonably long or injurious to defendant, and the action was commenced before defendant attempted to enforce the note.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Charles E. Cook against W. C. Smith. From judgment for plaintiff, defendant appeals. Affirmed.

Talma S. Heffernan and Wright Bros., all of Springfield, for appellant. Hamlin & Seawel, of Springfield, for respondent.

STURGIS, J.

This is a suit to rescind a contract of sale of some land described as being in El Paso county, Tex., 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, Tex., 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 No. 2115, survey No. 37, original grantee G. C. & S. F. Railroad Company, and patented to Emily M. Perry, May 10, 1882, by patent No. 77, vol. 70, deeds of recorder, El Paso county, Tex., 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...