Gross v. Byler
| Decision Date | 30 July 1927 |
| Docket Number | 25160 |
| Citation | 297 S.W. 391 |
| Parties | GROSS et ux. v. BYLER et al |
| Court | Missouri Supreme Court |
W. R Shuck, of Joplin, and J. D. Harris, of Carthage, for appellants.
Frank L. Forlow, of Webb City, and Roy Coyne, of Joplin, for respondents.
Plaintiffs sued to rescind agreements made with defendants and to cancel certain deeds made by them to defendants, in exchanges of lands, and asked also for money judgments. The ground alleged was that defendants had induced plaintiffs to make these exchanges, and the deeds sought to be canceled, by fraudulent representations as to the character and value of the land which defendants conveyed to plaintiffs. The plaintiffs are husband and wife. The defendants Henry Byler and Ora Byler are husband and wife, and defendants Elmer Byler and Emma Byler are husband and wife. All the parties lived in or near Webb City, and were on friendly terms at the time negotiations were begun for the exchanges of the lands involved.
There are two exchanges of property involved in the case. Negotiations as to the first exchange began in the latter part of the summer of 1920. At that time the plaintiffs owned and lived upon a tract of 25 acres near Webb City, Jasper county, which they had purchased in June, 1920, from a Mr. Gunderman. The plaintiffs also owned a lot in Webb City, described as lot 77 in Central addition to that city. These properties of plaintiffs were unincumbered. At this time, also, the defendants Henry Byler and Elmer Byler owned 440 acres of land in Howell county, which was subject to a mortgage for $ 1,600. The title to this was carried in the name of Elmer Byler, but Henry owned a one-third interest in the land. In the first exchange, consummated in the latter part of September, 1920, plaintiffs conveyed to defendants Henry Byler and Ora Byler the 25-acre tract, and received from Elmer Byler and wife a conveyance of an undivided one-half interest in the 440-acre tract in Howell county, subject to the mortgage that has been mentioned. In this first exchange the negotiations were between plaintiffs and Elmer Byler. They were dealing for a one-half interest in the Howell county tract, covering Henry Byler's interest, and, since Henry Byler only owned the one-third interest in that tract, it was necessary that Elmer Byler and his interest in that tract should be taken into consideration. Therefore, in consummating this first exchange, and as a result of it, plaintiffs conveyed their 25-acre tract in Jasper county to Henry Byler and defendant Ora Byler, his wife, and turned over certain personal property, livestock, grain, and chickens, at a valuation of $ 420. They received from Henry Byler $ 1,500 in cash, and the note of defendants Henry and Ora Byler for $ 2,000, the payment of which was secured by a deed of trust on the 25 acres, and a deed to a one-half interest in the Howell county tract, subject to the mortgage for $ 1,600.
In February, 1921, plaintiffs and Elmer Byler made the second exchange, under the terms of which plaintiffs received from Elmer Byler and his wife a deed to the remaining one-half interest in the Howell county tract, subject to the $ 1,600 mortgage, and plaintiffs conveyed to Elmer Byler and Emma Byler the lot in Webb City described as lot 77 in Central addition to that city. This lot was said to be of the value of $ 1,400 or at least was considered as of that value in making the exchange. In addition to conveying that lot, plaintiffs paid to Elmer Byler the sum of $ 300 in cash. Soon after, in March, 1921, plaintiffs loaned to Elmer Byler the sum of $ 500, the payment of which was secured by a deed of trust upon said lot 77. Afterwards Elmer Byler sold and conveyed said lot 77 to one Pugh, subject to the mortgage for $ 500.
The plaintiffs had never seen the Howell county land at the time these exchanges were made, and did not see it until about December, 1921, when they made a visit to that land, and inspected it, and upon their return charged defendants with misrepresentations as to its character and value, and demanded a rescission of the contracts. Defendants refused to do anything. Plaintiffs then tendered to defendants a certified check for the $ 1,500, paid in the first exchange, tendered return of the note for $ 2,000 and reconveyance of the Howell county tract, and demanded reconveyance of the property which they had conveyed to defendants. This demand was refused, and this suit was brought. After the suit was brought, the land in Howell county was sold under the deed of trust, and at that sale the land was purchased by a third party.
The evidence shows that the negotiations with plaintiffs in respect to both exchanges were had, and the representations as to the character and value of the Howell county land were made, by defendant Elmer Byler. The petition is framed upon the theory that the defendants acted in concert in these transactions, and in the making of false and fraudulent representations concerning the Howell county land; that Elmer Byler was acting for Henry Byler, as well as for himself, with the knowledge of Henry; and also that defendants Ora Byler and Emma Byler, as grantees, respectively, in the deeds made by plaintiffs, were necessary parties, and recovery could be had against them as well as their husbands.
The trial court found in favor of the plaintiffs on all the issues, and entered its decree canceling the deed to the 25 acres made by plaintiffs to Henry and Ora Byler; adjudged the mortgage made by Elmer Byler and Emma Byler upon lot 77 in Webb City to secure the loan of $ 500, to be a lien upon that property; and further decreed that, since defendants Elmer and Emma Byler had conveyed that lot to a third party and could not reconvey the same to the plaintiffs, the plaintiffs should have judgment against Elmer and Emma Byler in the sum of $ 1,700, that amount being made up of the value of the lot in Webb City and the sum of $ 300 in cash paid by plaintiffs to Elmer and Emma Byler in that exchange. The court also adjudged that the plaintiffs have judgment against Henry and Ora Byler in the sum of $ 420, as the value of the personal property turned over to the defendants in the first exchange. The court further decreed that plaintiffs should deliver to the defendants the deed of plaintiffs to the Howell county land, then on file with the court, when defendant should be willing to accept the same; and that plaintiffs should also repay to defendants Henry and Ora Byler the said sum of $ 1,500 received in cash in that exchange, less the amount found due plaintiffs from said Henry Byler and Ora Byler, as soon as Henry and Ora Byler should be willing to accept the same. While the court found that Henry Byler and Ora Byler had made and delivered to plaintiffs their note for $ 2,000, secured by mortgage on the 25-acre tract, no order was made directing any disposition of that note.
The primary inquiry is to be directed to the evidence, and the claim that plaintiffs were induced to make the exchanges of land by the fraud and false representations of defendants. There is in this the question, also, whether the representations were the moving cause of plaintiffs' actions. The suit is one in equity for the cancellation of executed contracts, and the power is one not to be exercised, except in a clear case, nor, for an alleged fraud, unless the fraud be made clearly to appear. 6 Cyc. 336. In such cases the fraud must be shown by evidence that is definite, positive, and cogent, and such as leaves no reasonable ground for doubt. Jackson v. Wood, 88 Mo. 76; Cohron v. Polk, 252 Mo. 261, 158 S.W. 603; First M. E. Church v. Berryman, 303 Mo. 475, 261 S.W. 73; Bragg v. Kirksville Packing Co., 205 Mo.App. 600, 226 S.W. 1012; Bross v. Rogers (Mo. Sup.) 187 S.W. 38. There must be clear proof of the fraudulent misrepresentations, and that they were made under such circumstances as show that the contract was founded on them. Bryan v. Hitchcock, 43 Mo. 527.
The testimony as to the representations made to plaintiffs was given by the two plaintiffs and a sister of Mrs. Gross. Plaintiff Pearl Gross testified that defendant Elmer Byler came to their place one day and said Henry Byler had sent him down to make a proposition to them; that he would give $ 3,-+ 300 and his interest in the Howell county land for their 25-acre tract. She knew that defendants owned the land in Howell county, but said she thought they had equal interests therein. Her testimony was that Elmer Byler said there was 160 acres of the Howell county land cleared on the one side of the main county road, and blotches all over the place that could be cultivated, and that the whole thing could be cultivated, with the exception of bluffs that went through to the creek; that she inquired as to the kind of land it was, and Elmer Byler answered. 'Just like that across the street;' that the land across the street was as fine land as there was in Jasper county; that she inquired whether there were any rocks on the Howell county land, and Elmer Byler said, 'No more than that land across the street.' She said she had never saw any rocks on the land across the street; that defendant Elmer Byler said there was no underbrush on the Howell county tract, and that the timber could be taken off and sold for $ 2,000; that it was a fine stock farm, and that he had been talking to a cattle man down there, and that this man said it was one of the finest stock farms around Willow Springs.
Plaintiff William Gross said that Elmer Byler came, telling them that Henry Byler had sent him down there with a proposition; that he inquired about the land; that Elmer Byler said the land was 'just like that across the street, just as level'; that he told Elmer Byler he would like to see...
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