Glasscock v. Minor

• Decision Date: 31 July 1848
• Citation: 11 Mo. 655
• Parties: GLASSCOCK v. MINOR.
• Court: Missouri Supreme Court

11 Mo. 655

GLASSCOCK

v.MINOR.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM MARION CIRCUIT COURT.

REDD, for Appellant. The decree dissolving the injunction and dismissing the bill for want of equity, is erroneous; for if the bill, taking it as true, contains equity, the answer admits all the essential allegations except the intent to deceive in making the false representations, and the only thing set up in the answer by way of excuse, is the ignorance of the defendant that the representations were false at the time he made them. 10 Vesey, 475; 1 Vernon, 136; 9 Vesey, 23; 2 Vernon, 150; 1 P. Williams, 240.

GLOVER & CAMPBELL, AND BUCKNER, for Appellee.

1. The record of the proceedings at law, on foreclosure of mortgage, not being filed, and oral testimony having been given of the same without objection, the same will be considered by this court. This evidence shows that Glasscock made defense at law, and that his defense was overruled. We inst, therefore, that no defense which might have been made at law, can be again relied on by bill in this case. If a party have a defense which by due diligence he could have preferred to a court of law, will equity relieve? 2 Story's Eq., 179, 180, 181, 182; Hardin's Ky. R. 123; 3 Monroe, 299. 2. The bill in this case is grounded upon the allegation of fraud and failure of consideration, which would, if true, have constituted a good defense in the action at law. 8 Cowen, 31; 11 Johns. 50. 3. The matter alleged in the bill as the ground of fraud, to wit: that Minor stated he had examined the records, that he could find no conveyance from Dickerson, and was therefore of opinion that none existed, is mere matter of opinion, and cannot be imputed to fraud. 4. But if it were otherwise, it is most manifest that this plea of fraud by Glasscock is unfounded. The answer solemnly avers he bought for speculation after being acquainted fully with the circumstances; that he was clerk of the court and knew at the time of the transaction all about the partition; when suit was brought he preferred no complaints, but promised to pay the notes-- made defense when sued, but not a defense grounded on fraud--after judgment begged day--afterwards paid $400, and begged further indulgence, never mentioning fraud--does not charge in his bill when he first discovered the supposed fraud--and only enjoins when he is again pressed with execution, then suffers his appeal to remain unprosecuted nearly twelve months; these are circumstances, in our opinion, entitled to great weight in the case.

NAPTON, J.

Glasscock filed a bill to enjoin the collection of a judgment at law obtained by Minor for the purchase-money of certain real-estate sold by Minor to Glasscock. The facts, as gathered from the bill and answer, were as follows: Minor sold Glasscock nine lots in the town of Palmyra, for two of which, he gave a deed with a warranty of title. For the remainder of the lots, he executed a quit-claim deed. The consideration for the entire lots was $800; the two lots, for which a deed with warranty was given, being worth about $250. Minor's title to the lots, which he did not warrant, was derived from one Dickerson, and so described in the deed given to Glasscock, and this title proved worthless. Minor took a deed of trust or mortgage upon the property, to secure the purchase-money, and foreclosed the mortgage by regular preceedings in the Circuit Court of Marion. Glasscock paid off $400 of this judgment, and this bill is brought to restrain the collection of the remaining $400, and to annul the contract, and have so much of the purchase-money returned as formed the consideration of the lots to which title failed.

The ground upon which this decree is asked, is, that Minor represented to Glasscock, when the treaty for the purchase was on foot, that he had examined all the records, and had ascertained that there was no conveyance from Dick erson (previous to the one to himself), and that he considered the title good; which representation was false and fraudulent, inasmuch as there had been a partition, duly recorded in Ralls county, by which Dickerson's interest had been conveyed in 1820, to one Caldwell.

Minor admits all the facts charged in the bill, except fraudulent representations on his part. He admits, that he had examined the records in Ralls, Marion and Pike, and that he had found no evidence of any conveyance from Dickerson, and that he was of opinion that his title was good, and that he so stated to Glasscock; but he affirms that Glasscock was fully advised of the...