Githens v. Butler County

• Decision Date: 12 November 1942
• Docket Number: 38031
• Parties: Flora Githens v. Butler County, Missouri, Appellant
• Court: Missouri Supreme Court

165 S.W.2d 650

350 Mo. 295

Flora Githens v. Butler County, Missouri, Appellant

No. 38031

Supreme Court of Missouri

November 12, 1942

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Reversed and remanded (with directions).

Charles T. Bloodworth, Jr., for appellant.

Under the evidence there is a preponderance, when all the facts and circumstances and fair inference are considered, to establish an inadequate price and fraud, deceit and connivance sufficient to authorize the cancellation of the deed to respondent, Flora Githens. Morriso v. Philliber, 30 Mo. 145; 15 C. J. 538, sec. 225; 46 C. J. 1037, sec. 308; Haxton v. Harris, 19 Kan. 511; Mangold v. Bacon, 237 Mo. 496.

Tedrick & Tedrick for respondent.

(1) The defendant failed to make a proper tender and for that reason is not entitled to the relief prayed for in its answer. When the answer was filed the defendant tendered the sum of one hundred dollars ($ 100.00), and during the progress of the trial the tender was increased to two hundred dollars ($ 200.00), but there was never any tender or offer to pay the accrued interest or costs. 62 C. J., 661, 662, 693. The theory upon which a tender is made in a suit to set aside a transaction is that the party seeking to rescind must place the opposite party in status quo, and the equitable maxim of "he who seeks equity must do equity" applies. One who seeks cancellation of the instrument must tender back what he received under it or offer to do so. Davidson v Gould, 187 S.W. 591. To entitle a person to set aside his deed on the ground of fraud he must offer to return consideration received. Thompson v. Cohen, 29 S.W 885; First Methodist Church of Poplar Bluff v. Berryman, 261 S.W. 73; Mo. Dig., Cancellation of Instruments, Key No. 24 (2). The fact that the interest or costs might be an insignificant amount is no excuse for failure to make a proper tender. St. Louis v. Senter Comm. Co., 124 S.W.2d 1180; 62 C. J., pp. 661-662. Tender of consideration after filing of bill to cancel deed was too late. Mississippi State Highway Comm. v. Anderson, 184 So. 450. (2) The fact that the plaintiff was the wife of the Presiding Judge of the County Court at the time the court made the order authorizing the sale, does not make the sale fraudulent. In support of his contention that this fact would make the sale fraudulent, the attorney for appellant evidently relies upon Sec. 2491, R. S. 1939, which section reads as follows: "No judge of any county court in the state shall directly or indirectly become a party to any contract to which the county is a party." Thus it will be seen that although D. M. Githens is the husband of plaintiff, yet this fact does not and cannot make him a party to the deed, which is the contract in question. Further the law of this State is that a married woman may own her own separate real property if such property was purchased with her own individual funds (as was testified to in this case), then she may convey by deed such real estate without her husband joining her. Sec. 3390, R. S. 1939. "Realty paid for by a married woman held separate property which can be conveyed without joinder of her husband." Travelers Ins. Co. v. Beagles, 62 S.W.2d 800.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Flora Githens, claiming to be the owner by purchase from Butler County of two tracts of land consisting of 333 acres, brought this suit to quiet the title and alleged that Butler County claimed some interest in the land.

Butler County answered the suit by alleging that the deeds under which the plaintiff claimed were void and asked the court to cancel the deeds and decree the title to the land to be in the county.

The allegation upon which the county relied as making the deeds void was "that at the time of said order, made by said County Court, that D. M. Githens was the husband of Flora Githens, and that the said D. M. Githens was the Presiding Judge of the County Court of Butler County, Missouri, and that said D. M. Githens was acting as Presiding Judge of the Court at the time said sale was ordered."

The Hemphill Lumber Company once owned the land and after the timber was removed permitted it to sell for taxes. At the tax sale Tom Campbell, Land Commissioner of Butler County, bought the land for the county. He paid $ 150.00 for the two tracts in question and soon after sold them to Mrs. Githens for $ 200.00.

Mrs. Githens testified that she owned land near that purchased and that she wanted it because the river ran through it. She said she owned property in her own name and had money of her own and that the land was purchased with her separate money, on her own initiative and without consulting her husband. She said: "My husband did not know I bought this land. I did not buy it for him or his agent."

D. M. Githens testified that he was the husband of the plaintiff and the Presiding Judge of the County Court of Butler County. He said that when his wife told him she was going to buy the land he advised against it because they owned enough land without it.

The Clerk of the County Court identified the record book which showed the order of the County Court authorizing the sale of the land to Mrs. Githens on December 5, 1940. The judges present and signing the record for that day were D. M. Githens, Charlie Smith and John Garver. Smith's and Garver's terms as judges expired on December 31, 1940, and they were succeeded by Sam Woolard and Hulen Spencer who, in Judge Githens' absence, made an order rescinding the previous order authorizing Campbell to sell the land to Mrs. Githens. Judge Spencer said: "The reason we set this sale aside was that Mrs. Githens is the wife of the County Judge and Mr. Campbell was appointed by the County Court. That's the only reason." His associate, Judge Woolard, said: "We set aside this sale of land that Mrs. Githens bought because we thought it was too cheap and because it was kinfolks buying it."

There were other issues in the trial of the case, one of them being the value of the land and whether its value would be enhanced by certain proposed public improvements, but the decisive question is whether the wife of a judge of the county court may purchase land from the county at a private sale authorized and approved by the vote of her husband and his two associate judges. The trial court found for the plaintiff on her petition to quiet the title and dismissed the county's cross-bill after finding all the issues on the county's claim for the plaintiff. In this we think the trial court was in error.

". . . the directors of a private corporation may, if there is no fraud in fact or unfairness in the transaction, contract on behalf of the corporation with one of their number. A stricter rule is laid down in regard to public corporations, and it is held that a member of an official board or legislative body is precluded from entering into a contract with that body." 6 Williston, Contracts, Sec. 1735, p. 4895. The basis of this common law rule is that it is against public policy (State ex rel. Smith v. Bowman, 184 Mo.App. 549, 170 S.W. 700) for a public official to contract with himself. "At common law and generally under statutory enactment, it is now established beyond question that a contract made by an officer of a municipality with himself, or in which he is interested, is contrary to public policy and tainted with illegality; and this rule applies whether such officer acts alone on behalf of the municipality, or as a member of a board of [or] council. . . . The fact that the interest of the offending officer in the invalid contract is indirect and is very small is immaterial. . . . It is impossible to lay down any general rule defining the nature of the interest of a municipal officer which comes within the operation of these principles. Any direct or indirect interest in the subject matter is sufficient to taint the contract with illegaliy, if the interest be such as to affect the judgment and conduct of the officer either in the making of the contract or in its performance. In general the disqualifying interest must be of a pecuniary or proprietary nature." 2 Dillon, Municipal Corporations, Sec. 773; 46 C. J., Sec. 308; 22 R. C. L., Sec. 121; State ex rel. Streif v. White (Mo. App.), 282 S.W. 147; Witmer v. Nichols, 320 Mo. 665, 8 S.W.2d 63; Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857.

This basic and fundamental common law concept has been enacted into our statute law relating to county courts. Mo. R. S. A., Sec. 2491 provides that:

"No judge of any county court in the state shall, directly or indirectly, become a party to any contract to which such county is a party, . . ."

The next section of the statute makes the violation of the statute a misdemeanor. Mo. R. S. A., Sec. 2492.

The cases cited in the preceding paragraphs deal with instances of an official being "directly" interested in the contracts, actions or dealings with the public body of which he was a member. Here the question is whether the public official is so "indirectly" interested as a party to a transaction with a county court of which he was a member as to invalidate it. In fact the question is whether the relationship of husband and wife is a...