Custer v. Shackelford

• Decision Date: 20 November 1920
• Docket Number: No. 20946.,20946.
• Citation: 225 S.W. 450
• Parties: CUSTER v. SHACKELFORD.
• Court: Missouri Supreme Court

225 S.W. 450

CUSTER v. SHACKELFORD.

No. 20946.

Supreme Court of Missouri, in Banc.

November 20, 1920.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Suit by Cora C. Custer against Harry M. Shackelford. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

John C. Leopard & Son and Nat G. Cruzen, all of Gallatin, for appellant.

Garland Wilson, of Bethany, for respondent,

BROWN, C.

This is a proceeding in equity to rescind the sale and conveyance by plaintiff to defendant of the east one-third of lot 22. Schnatterly's addition to the city of Betheny in Harrison county, Mo., for alleged fraud and misrepresentation in the transaction. The petition was filed in the Harrison county circuit court in vacation on August 9, 1916, and after answer the cause was transferred, on of defendant, to the circuit court for Daviess county. The petition states, in substance: That on and prior to April 29, the plaintiff was the owner of said lot. That defendant, with one Johnson, a real agent in Bethany, Harrison county, devised a fraudulent scheme for obtaining said land in exchange for a tract of land in Las Animas county, Colo. That in pursuance of such scheme he visited plaintiff, and represented to her that he had paid $3,200 for the, Colorado land, of which $2,500 was paid in, cash; that it was a valuable tract of land with a good house, cave, and other improvements, and was well fenced; that he had an uncle in Colarado who had told him that it was a bargain at the price he had paid. That defendant had never been in Colorado and knew no one through whom she could make inquiry as to the character and value of the property, and relying solely upon the said statements of defendant and Johnson, on April 27th made a contract with defendant whereby she agreed to sell the Bethany lot to him for $2,900, taking in full payment therefor the said Colorado land at a valuation of $2,500 and his note payable in three years with interest for the remaining $400, of the purchase price.. That still relying on the said representations of defendant and Johnson, and without having any other opportunity to ascertain the character, condition, and value of said land, and in pursuance of said contract, she did, on April 29, 1916, convey the Bethany lot to defendant by deed duly executed and delivered, in which her husband joined, receiving therefor a conveyance for said Colorado land together with defendant's note for $400. That all of said representations were false as defendant well knew. That the Colorado land was worthless. That no more than 5 acres of the 160 acres of which it consisted could be cultivated under any circumstances. That the fences belong to the adjoining owners, and the buildings, such as they were, were worthless. It also stated that the defendant did not own the Colorado land as he represented; that the patent issued by the United States reserved all coal that might be therein, with the right to take the same as provided in the Act of Congress of March 3, 1909 (U. S. Comp. St. § 4665), as defendant well knew; that, as soon as plaintiff discovered that she had been defrauded of her said property, she demanded that the defendant return it to her and tendered to him a deed conveying all the right that she had acquired under his deed, and also tendered back his $400 note and deed of trust; but that defendant refused to receive or accept the same or to convey back to her her said property, and proceeds as follows:

"Plaintiff herein now tenders to the defendant the promissory note in the sum of $400, given to her as aforesaid, and the deed of trust securing the same, in part payment for her said property by the defendant as aforesaid, also offers and tenders to the defendant a reconveyance of all interest and title she received from him under said deed of conveyance, land conveying to her his interest in the Colorado land as aforesaid."

Wherefore said plaintiff prays that said conveyance so made by her to the defendant, by which she conveyed her said property in the city of Bethany, Mo., as aforesaid, be set aside and for naught held, that all title and interest, so acquired by the defendant in and to said property, to wit, the east one-third of lot 21, Schnatterly's addition to the city of Bethany, Mo, be divested out of the defendant, and vested in this plaintiff, that the contract so into by her, agreeing to convey the same to the defendant be canceled and for naught held, that all title and interest, so That acquired by the defendant in and to said property, to wit, the east one-third of lot 21 of Schnatterly's addition to the city of Bethany Mo., be divested out of the defendant, and vested in this plaintiff, that the contract so entered into by her agreeing to convey the same to the defendant be canceled and for naught held, and for such other and further relief as to the court shall seem meet and just.

The answer is a general denial. The cause came on for trial in the Daviess circuit court on December 21, 1917, and the evidence was heard by the court. No instructions or declarations of law were given or asked, and the court rendered judgment for defendant. After motion for new trial overruled, this appeal was taken.

The plaintiff stated in her testimony in answer to questions by defendant's counsel that defendant's note for $400 given in part payment of the lot was in possession of her mother in Iowa, but could be procured and surrendered whenever necessary. A considerable number of witnesses were introduced by defendant for the purpose of impeaching plaintiff's character for truthfulness in Bethany. Some of this related to her disregard of city ordinances relating to keeping her chickens and ducks at home, and her arrest and conviction in the city court in connection with the same offense, while other impeaching testimony was founded on talk with reference to this transaction and her testimony in a criminal trial growing out of it.

The defendant was permitted, over the objection of the plaintiff, to introduce testimony to the effect that he himself sustained a good character in Bethany. This ruling was placed upon the ground that his character had been attacked by the nature of the charge against him.

The testimony for both parties showed, and it may be assumed, that the Colorado land was practically worthless; the only testimony on that subject being that it was worth less than $100, which no attempt was made to dispute. It was located in Las Animas county, Colo., where the Trinidad Coal fields are situated, and had been patented with a reservation to the government of all coal and coal mining rights and privileges. It is evident upon the whole evidence that it was not salable to any Colorado purchaser nor to any other person knowing its location, its physical character, and the nature of the title.

The plaintiff desired to sell the Bethany lot in question and listed it for that purpose with A. J. Johnson, representing the real estate firm of Johnson & McQuerry. The cash value of her lot is variously estimated by witnesses on either side at from $1,000 to $2,500. One of defendant's impeaching witnesses was occupying the house at a rental of $12.50 per month, and quit because the rent was raised. Land values in that part of the town were, according to defendant's evidence, increasing.

In April Johnson suggested defendant as a possible purchaser. She saw him, and he suggested that he had land in Colorado which he might trade for it, and this negotiation began. He told her that he had never seen the Colorado land, but that one Sparks had located it and lived on it with his family, and had died there; that his widow had returned to Missouri and was living in Bethany and could give her all necessary information. Mrs. Sparks was employed by Mrs. Reid as a washwoman, and Johnson went there to see her, and afterward called upon her with defendant whom he introduced as a prospective purchaser of the Colorado land. After this the plaintiff called on her at least three times before the trade in question was finally consummated. Mrs. Sparks gave her a very favorable description of the land and told her it was worth from $10 to $25 per acre, and advised her to go to Colorado and look at it. Mrs. Sparks had already conveyed it to Chambers & Davis for $320, partly paid by credit on her grocery bill and partly in cash, and the defendant and McQuerry turned to them to acquire the title. They made a trade with Chambers & Davis by which the latter agreed to sell to McQuerry for $500 making the conveyance directly to defendant for that sum. Defendant asked them to make the deed so that it would show a consideration of $2,500, which was done, defendant paying for the revenue stamps necessary to show the fictitious part of the consideration, and he testifies that he did this to help him sell the land. Defendant says that he paid McQuerry in this transaction $700 or $200 more than the actual consideration which passed to Chambers & Davis. On the same day (April 27, 1916), the plaintiff entered into her contract with defendant whereby she agreed to convey to him the lot in question for $2,900, $400 of which was to be paid by note secured by mortgage on the lot and payable three years after date with interest, and $2,500 by the conveyance to her of the Colorado land.

The plaintiff testified positively that defendant assured her that he had paid $3,200 for the land, $2,500 of which had been paid in cash and $700 in trade; that he had never seen it, but that he had an uncle there who was a good man and who had written him In answer to an inquiry that if he could get it at $3,200 it would be a bargain; that there were 40 acres of valley land which would raise two crops of alfalfa in one year, and that it was worth $100 per acre; that Johnson told her that if she traded for the land he would give her his check for what it cost her, and that she saw Mrs. Sparks at his...