Davenport v. Casey

• Decision Date: 02 June 1920
• Docket Number: No. 20888.,20888.
• Citation: 222 S.W. 791
• Parties: DAVENPORT et ux. v. CASEY et al.
• Court: Missouri Supreme Court

222 S.W. 791

DAVENPORT et ux. v. CASEY et al.

No. 20888.

Supreme Court of Missouri, Division No. 1.

June 2, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Suit by James Davenport and Melvina Davenport, his wife, against F. E. Casey and Sarah D. Casey, his wife, and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Geo. Munger, of Bloomfield, for appellant F. E. Casey.

Wammack & Welborn and J. W. Farris, all of Bloomfield, for respondents.

SMALL, C. J.

Suit in equity to set aside a deed to 80 acres of land in said county. The substance of the petition is: That plaintiffs, being the owners of said real estate, and desirous of selling the same for $2,000 in cash, employed the defendant F. E. Casey as their agent to sell the same for that price; that on or about the 5th of July, 1915, said defendant informed the plaintiffs that he could exchange their land for a lot in the town of Essex in said county 100 by 200 feet in dimensions; that plaintiff James Davenport examined said real estate and informed said defendant that he would not make the exchange; whereupon said defendant .T. B. Casey informed the plaintiffs that he would sell said Essex real estate for $2,000, and would deposit the money to their credit in the Citizens' Bank of Dexter in said Stoddard county in payment for their land; that on the 28th of July, 1915, said defendant F. E. Casey fraudulently represented to plaintiffs that in order to do so it was necessary that plaintiffs should make a deed for their said 80-acre tract to the said defendant F. E. Casey; that said defendant, in fact, had made no such arrangements, but relying on the truth of such statement, plaintiffs were induced to and did make a warranty deed to their said 80-acre tract to said defendant, but not for the purpose of conveying title to him as owner, but only for the purpose of enabling him to complete the alleged arrangements that he had made for procuring $2,000 in cash for the plaintiffs for their said land, and that he was not to record said deed until he had procured said sum in cash for the plaintiffs; that plaintiffs were unlearned and ignorant in business transactions, and said defendant F. E. Casey was a shrewd business man; that plaintiffs inquired of him whether or not he meant in any way to cheat or defraud them, and he assured plaintiffs that he was their friend, and would under no circumstances do anything to injure or defraud them, and plaintiffs believed and had full confidence in him when they made and delivered to him their said deed; that afterwards, on September 23, 1915, for the purpose of cheating the plaintiffs, and without their knowledge and consent, and in violation of his agreement, said defendant F. E. Casey caused said deed to be recorded in the recorder of deeds office in said county, and also on the same day said defendant executed a deed of trust upon said property to the defendants, Asa Norman and E. L. Casey, to secure a note of $1,200 made to them by said defendant E. E. Casey; that in said month of July, 1915, said defendant F. E. Casey had himself obtained title to said parcel of land in the town of Essex from, one P. W. Crowley, subject to a deed of trust for $2,200 in favor of said defendants Asa Norman and B. L. Casey; that plaintiffs were ignorant that said F. E. Casey had any interest in said land, and that for the purpose of keeping them in ignorance thereof said defendant F. B. Casey represented that said land was owned by said Crowley, and that he would sell the same and obtain $2,000 in cash with which to pay the plaintiffs for their 80-acre tract and thereupon convey their land to said Crowley; that on the 21st of September, 1915, said E. E. Casey and wife, without the knowledge or consent of plaintiffs, executed a warranty deed purporting to convey said parcel of land at Essex to the plaintiffs, and caused the same to be recorded on the 23d of September, 1915; that afterwards said F. E. Casey handed said deed to the plaintiff Tames Davenport, who did not understand the purpose of said deed, or that defendant F. B. Casey had violated the purpose for which he had received the deed from the plaintiffs, and that said plaintiff James Davenport did not by receiving said deed from said Casey intend to become the owner of said lot at Essex, or to relinquish the ownership of the 80 acres belonging to the plaintiffs; that the plaintiffs relinquish all claim to said deed and said land at Essex, and deposit said deed in court for the defendants F. B. Casey and Sarah E. Casey, his wife. The prayer is for the court to set aside and cancel said deed of July 28, 1915, given by plaintiffs to defendant F. E. Casey, and to cancel and set aside the deed of trust given by said defendant F. E. Casey on the plaintiffs' property to the other defendants, and that the court render personal judgment against said defendant F. B. Casey for any damages caused by his act which cannot be fully compensated by the cancellation of said deed, and for general relief.

The answer was a general denial.

There is no dispute with reference to most of the principal facts in the case. That the plaintiffs owned the land as alleged is not denied. That defendant F. E. Casey received the deed from them for their land in the first place for the purpose of enabling him to sell it or trade it for them is not denied. Plaintiffs testify that he was not to record their deed, and was not to trade it for the piece of property in the town of Essex mentioned in the petition, unless he first procured a purchaser for said Essex property, so as to obtain $2,000 in cash for them for their property, and that, if he could not do this, their deed to him was to be returned to them; that under no circumstances would they take the Essex property for their land. At the time plaintiffs made their deed to said Casey, he admits that he told them that he had a deed from Mr. Crowley, the owner of the Essex property, so he could handle it for Crowley, and he wanted their deed for the same purpose. He also admits that he did not notify the plaintiffs that he had any interest, directly or indirectly, in the property of Crowley, except merely to handle it for Crowley for the purpose stated to the plaintiffs. The plaintiffs' deed to said defendant, was dated July 28, 1915. Crowley's deed to said defendant F. E. Casey was dated July ___, 1915.

A few days after making their deed, the plaintiff Mrs. Melvina Davenport became uneasy, and the plaintiff James Davenport thereupon visited the defendant F. E. Casey and told him that his wife was uneasy, and he wanted Casey to go up to their home and assure her that everything was safe. Accordingly said defendant F. B. Casey went to the plaintiffs' house, August 3, 1915, accompanied by Miss Bond, a relative. While there, said F. E. Casey dictated, and Miss Bond wrote, the following document:

                                "Dexter, Mo., 8-3-15
                

"This contract entered into by and between games Davenport and Melvina Davenport, parties of the first part, and F. E. Casey, party of the second part, under the consideration that, if F. E. Casey, party of the second part, consigns to James Davenport and Melvina Davenport a certain parcel of real estate lying and being in the city of Essex herein not described for twenty hundred or more dollars, then this deed dated 7-28-1915 will stand the proved; otherwise these deeds are null and void and will revert to the parties of the first part for disposery.

                                               his
                                         "James X Davenport
                                              mark
                                         "Melvina Davenport
                                         "F. E. Casey
                   "Elsie Vaughn in witness."
                

Plaintiff James Davenport could neither read nor write. His wife could write her name and could read a little. She did not attempt to read the document. They heard what said defendant F. E. Casey told Miss Bond to write. She read it to them, and they thought she read what he had dictated. Both of them, however, testified that at and before the time the writing was signed Casey assured them that, unless they obtained $2,000 in cash for their property, he would not put their deed on record and it was to be returned to them. This testimony was objected to by the defendants as contradicting the writing, which objection the court overruled, and defendants excepted. Defendant F. B. Casey denied that he so stated at that time in portions of his testimony. But on cross-examination he said:

"Q. That was the understanding, was it? A. Yes, sir. Q. That at any time the money could be realized for this Essex property the old man, Davenport, would make the deed? A. Yes, sir. Q. And that is what you understood about it? A. Yes, sir. Q. What did you go back there on the next morning for, to draw up this contract? A. It was for their satisfaction."

When the contract was read to plaintiffs, Casey testifies, he asked them how it sounded, and they said, "All right," and then he said:

"I don't want you to go worrying about this deed, because until I pay for it, it don't belong to me."

Said defendant Casey made several attempts, after this contract was made, to sell the Essex property for $2,000. He says:

"Q. You were all the time trying to find a buyer for $2,000 or make a deal by which he could get $2,000 for his property all this time, were you not? A. Yes, sir."

But nothing came of these attempts to sell the Essex property to others.

It appears from the evidence that said defendant Casey had an interest in this Essex property. Defendants' witness Crowley, who owned the property, testified that he made the deed for the property to Casey and put it in the Dexter Bank, to be delivered to Casey when Casey should procure a credit for him of $1,800 on a note for $2,200 which defendants Asa Norman and Ed L. Casey held against him; that said defendant F. E. Casey, on account of said $1,800 credit, delivered to Crowley a team of...