Davis v. Fox

• Decision Date: 28 February 1875
• Citation: 59 Mo. 125
• Parties: OSCAR F. DAVIS, Appellant, v. HENRY A. FOX, MARTHA J. MASON and ADOLPHUS MASON, her husband, Respondents.
• Court: Missouri Supreme Court

59 Mo. 125

OSCAR F. DAVIS, Appellant,

v.HENRY A. FOX, MARTHA J. MASON and ADOLPHUS MASON, her husband, Respondents.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Nodaway Circuit Court.

Heren & Rea, for Appellant.

I. A party making a deed under duress can enter and avoid such deed against a bona fide purchaser. (Worcester vs. Eaton, 13 Mass, 371; Somes vs. Skinner, 16 Mass., 348; 11 Mass., 379; 2 Black. Com., p. 290; 3 Black Com., p. 173-5.)

Dawson & Edwards, for Respondents.

I. A contract procured by fraud, duress and violence is not absolutely void, but only voidable; because the person upon whom the fraud and duress was practiced may ratify and affirm the contract. (1 Pars. Cont., 395; 1 Poth. Oblig., 14; 1 Black's Com., Chitty's ed., 291; 2 Wash. Real Prop., 586; Deputy vs. Stapleford, 19 Cal., 302.)

II. The respondents, Mason and Mason, being bona fide purchasers for a valuable consideration without notice, are not affected by the fraud or duress of their grantor. They hold the title purged of the original fraud or duress. (Jackson vs. Henry, 10 Johns., 184; Fletcher vs. Peck, 6 Cr., 133-135, (p. 87); Somes vs. Brewer, 2 Pick., 183; Bean vs. Smith, 2 Mason, 252; Dexter vs. Harris, Id., 531; Anderson vs. Roberts, 18 Johns., 513; Deputy vs. Stapleford, supra; 1 Sto. Eq. Jur., §§ 434, 436.)

III. The appellant's silence for years after Fox had conveyed the land in controversy to the respondents, Mason and Mason, is as conclusive upon him as if he had been a party to the conveyance to them. (1 Sto. Eq. Jur., 385; Storr and Brooks vs. Barker, 6 Johns. Ch., 166; Wendell vs. VanRansselær, 1 Johns. Ch., 343.)

IV. The evidence in this case is not sufficient to establish duress per minas. (Dallam vs. Renshaw, 26 Mo., 533, 544.)

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Nodaway Circuit Court, on the fifth day of March, 1870. The object of the action was to set aside a deed executed by the plaintiff in the month of July, 1863, purporting to convey certain lands therein named from the plaintiff to the defendant, Fox; and also to set aside and make void a deed executed by said Fox, conveying the same land to defendant, Martha Mason, who was the wife of her co-defendant, Adolphus Mason, on the ground that said deed from plaintiff to said defendant, Fox had been obtained from plaintiff by force and duress.

The amended petition filed in the case by plaintiff, and upon which the trial was had, is substantially as follows:

That the plaintiff, on the 8th day of July, 1863, was the owner in fee of about seventy-three acres of land in Nodaway county, which is particularly described in the petition; that the value of said tract at said time, was two thousand dollars; that on or about the 7th day of July, 1863, the defendant, Henry A. Fox, came to the plaintiff at Maryville, Missouri, and demanded a deed conveying to said Fox the said lands before referred to; that shortly afterwards, and during the same day, one David Nelson came to plaintiff and informed him that he (Nelson) was instructed by defendant, Fox, to tell plaintiff that he, said Fox, intended to kill plaintiff, unless plaintiff deeded said land to Fox; that the next morning said Fox came to plaintiff and demanded that plaintiff should go to the court house and make and acknowledge a deed to said Fox for said land, and not to leave town until he did so; and that plaintiff was further ordered that when he got to the court house he should not open his mouth; that plaintiff afterwards told defendant, that if he would give up to plaintiff his deed which defendant had obtained from plaintiff, and give plaintiff his word and honor that he, defendant, would not molest plaintiff, and would let plaintiff pass out of the State, that plaintiff would give him one hundred dollars; that defendant replied to plaintiff, that nothing but the land or plaintiff's life would satisfy him, and that if plaintiff did not deed said defendant his land immediately, defendant would take his life.

The petition then, after referring to the troubled state of the country at the time in consequence of the civil war then existing, and to the fact that several of plaintiff's neighbors had just previous to that time been killed at their homes in plaintiff's neighborhood, proceeds to state that he was induced, through fear and terror caused by the threats of said defendant, Fox, to execute and deliver a deed conveying his said land to said Fox, for a mere nominal consideration fixed by said Fox, without the consent of the plaintiff; that the consideration so fixed was one old wagon, two mares, one mule colt and one set of harness of the value of one hundred and seventy-five dollars; that afterwards, on the 25th day of April, 1864, the defendant, Fox, conveyed said land to defendant, Martha J. Mason; that the said Martha and her husband, Adolphus Mason, had notice at the time of their purchase of the land, that the deed from plaintiff to Fox for said land was obtained by force and duress as aforesaid. The plaintiff therefore offers to bring into court to be repaid to said Fox the sum of $175, the alleged value of the property received by him for said land, and prays the court to cancel and make void the deed from plaintiff to Fox, and also the deed from Fox to Martha J. Mason, and to re-invest the title to said land in the plaintiff, and for other relief, etc.

The answer of defendant, Fox, fully denies all of the material allegations in the petition, and states that he purchased the land named in the petition of plaintiff at his solicitation and request, and for a fair price freely and fairly agreed on between the parties, and which was freely agreed on and received by plaintiff, etc.

The defendants, Martha and Adolphus Mason, in their answer deny all of the allegations of the petition, and charge that they purchased the land of the defendant, Fox, for a fair and full consideration paid for the same by them, and without any notice of any claim or right in plaintiff to said land whatever, and that they, without any notice of plaintiff's claim, had made large and valuable improvements on said land, etc.

Replications were filed, putting in issue the affirmative allegations in the answers. After hearing the evidence in the cause upon the trial, the court found for the defendants, and rendered a judgment in their favor and against the plaintiff for costs.

The plaintiff in due time filed a motion for a re-hearing of the cause, setting forth as grounds for said motion, that the judgment was against the law and the evidence, and against the weight of the evidence. This motion being overruled by the court, the plaintiff excepted and appealed to this court.

There are two points presented to this court for consideration: 1st. Does the evidence in the case show such a state of facts as will authorize the court to find that the defendant, Fox, obtained the deed to the land in controversy from plaintiff, without the consent of the plaintiff, and by threatened violence as is charged in the petition; and therefore to declare said deed to be void. 2d. If the evidence in the case should be considered sufficient to warrant a cancellation of the deed from plaintiff to said Fox, can the court under the law, cancel the deed from Fox to Mrs. Mason, unless the evidence should show that Mason purchased with notice of the defect in Fox's title, or that plaintiff still had some claim to the land, or, in other words, will the fact that the deed was obtained by duress, avoid a deed to an innocent purchaser for value of the land from the fraudulent vendee?

The first of these questions must be determined as a matter of fact to be found by the evidence in the case, and if it should be solved in favor of the defendants in the case, it would render the solution of the second question wholly unnecessary.

When we refer to the evidence given by the respective parties on the trial of the cause, we find it to be painfully conflicting and contradictory. The plaintiff, by his own testimony, fully sustains the allegations of the petition in reference to the violent threats and duress on the part of the defendant Fox. He details with a great deal of circumstance and particularity the manner in which he was induced by fear of personal injury, threatened by said Fox, to execute the deed for the land to Fox without any choice on his part, and against his will. Plaintiff also testified that there were about seventy-three acres of the land worth from $25 to $30 per acre, which was conveyed to Fox for a wagon, two mares, a mule colt and a set of harness, worth in the aggregate from one hundred and seventy-five to two hundred dollars. In fact, if the plaintiff's evidence was uncontradicted and should have full credence, his petition and the charge of duress made therein is fully made out and sustained. The plaintiff also introduced one Nelson as a witness, whose evidence in some of the most material particulars corroborated and sustained the evidence of the plaintiff. A number of other witnesses were introduced by plaintiff, whose evidence in some degree, although in most cases in a very slight degree, tended to sustain the plaintiff's theory of the case.

It may be here remarked, that at the time, and for some time before the time that plaintiff conveyed the land in question to Fox, there had been great commotion and excitement in the neighborhood where the plaintiff resided, and...