Crumb v. Wright

• Decision Date: 20 December 1888
• Citation: 10 S.W. 74,97 Mo. 13
• Parties: CRUMB v. WRIGHT.
• Court: Missouri Supreme Court

10 S.W. 74

97 Mo. 13

CRUMB v. WRIGHT.

Supreme Court of Missouri.

December 20, 1888.

1. EJECTMENT — DEFENSES — FORECLOSURE — FRAUD — RESCISSION.

After land has been sold under a deed of trust to secure the purchase money, and repurchased by the vendor, the vendee, having retained possession of the land, cannot defend ejectment by the vendor on the ground of fraudulent misrepresentations by the vendor inducing the first sale, as, upon discovery of the fraud, he should have repudiated the purchase, and surrendered possession of the land.

2. SAME — INVALIDITY OF TITLE — EVIDENCE — DOCUMENTARY.

In such an action, before the defendant can introduce evidence of the falsity of plaintiff's statements, he must prove the invalidity of plaintiff's title, which should be done by documentary evidence, or its equivalent, showing in whom the legal title is.

Appeal from circuit court, Stoddard county; JOHN G. WEAR, Judge.

Ejectment by D. S. Crumb against Charles P. Wright. Verdict and judgment for plaintiff, and defendant appeals.

Smith, Silver & Brown, for appellant. Houck & Keaton, for respondent.

SHERWOOD, J.

Ejectment for S. ½ of S. W. ¼ of section 13, township 27, range 9. The answer was a general denial, and the following: "And defendant, further answering plaintiff's said petition, says that he admits that on the 27th day of December, 1880, he did execute a deed of trust to plaintiff, which said deed of trust was obtained by plaintiff through false and fraudulent representations made by plaintiff to defendant; that is to say, plaintiff represented to defendant that he was the owner of the land therein described, and that he had good right to sell the same, he, the said plaintiff, well knowing at the time that said representations were false and fraudulent. Defendant further says that by the said false and fraudulent representations, so made as aforesaid, he was induced to execute the said deed of trust, and the notes upon which the same was based, and for no other nor greater consideration; that the same was made without any consideration whatever passing from plaintiff or to defendant." Prayer that said deed of trust, and the said notes so secured by said deed of trust, be declared by the court null and void, and for all other proper relief. Replication, general denial. Plaintiff introduced testimony showing that defendant was in possession of the premises at the commencement of the suit. Then read in evidence a deed of trust dated December 27, 1880, to secure notes given for the purchase money, executed by defendant, conveying the land in suit to Collin Morgan, trustee, and deed of trust to plaintiff for said land, executed 12th day of January, 1884. Plaintiff then testified as to rents and profits, number of acres in cultivation, etc. On cross-examination, defendant offered to prove by the plaintiff that at the time he conveyed to defendant, he had no title to the land in suit; that defendant was at the time the owner; that the plaintiff obtained his note and deed of trust, through which he now derives his title through false and fraudulent representations to the defendant that he had title to the premises; that the deed from plaintiff to defendant, which conveyed nothing, was the only consideration for defendant's said note and deed of trust. The court held said evidence inadmissible, and overruled the offer of defendant to prove said facts; to which defendant objected, and excepted. Judgment was then rendered for plaintiff, and defendant appeals.

The defendant, by his answer, took upon himself the burden of showing that the representations alleged therein, respecting the title, were false, and known by the plaintiff to be false, when he made them. In order to do this, it was first necessary for him to show in whom the title was; but this he did not do, nor attempt to do, by any legitimate method known to the rules of evidence. Unless the whereabouts of the title were shown, and shown by documentary evidence, or its equivalent, it would be a vain and useless thing to ask as to fraudulent representations respecting that title. The first step in the case was to show, by proper methods, the invalidity of plaintiff's title, and next to show the fraudulent representations concerning it, and then to show that defendant, relying on such representations, was induced to become the purchaser of the land. But the truth or falsity of plaintiff's representations, respecting his ownership of the land, could not be established without first investigating his title to the land in the proper way, which, as already seen, was not done. There is not a scintilla of testimony or evidence in this record, nor allegations in the pleadings, whether the defendant was the real owner of the premises or not, or whether he was in possession thereof, prior to receiving a deed from plaintiff, nor whether that deed was one of general warranty indented, or poll in form.

Inasmuch, however, as the deed of trust was executed on the 27th day of December, 1880, to secure notes given for the purchase money of the land,...