Herman v. Hall

• Decision Date: 22 June 1897
• Citation: 41 S.W. 733,140 Mo. 270
• Parties: Herman v. Hall, Appellant
• Court: Missouri Supreme Court

41 S.W. 733

140 Mo. 270

Herman v. Hall, Appellant

Supreme Court of Missouri, Second Division

June 22, 1897

Appeal from Cedar Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

William O. Mead and T. T. Loyd for appellant.

(1) Appellant told plaintiff he had a good title. That was the expression of an opinion based upon the fact that he had deeds for the land and nothing more, and no injury resulted to plaintiff and none was threatened. Anderson v McPike, 86 Mo. 293. (2) There was no evidence that plaintiff relied alone upon the statements of defendant in relation to the title of the land in question, but on the contrary the plaintiff testified that he did not rely upon what defendant said about his title, and would not have taken Hall's opinion that he had title, and would have demanded an abstract for the forty acres as he did for the other land if Hall had not produced the deed from the county. (3) The testimony not only fails to sustain plaintiff's contention but disproves it and is conclusive according to plaintiff himself that he did not rely upon anything the defendant said. Rogers v. Rogers, 87 Mo. 257; Johnson v. Quarles, 46 Mo. 425; Jackson v Wood, 88 Mo. 76; Forrester v. Scoville, 51 Mo 268. (4) The evidence of title in defendant for the forty acres was before both parties; both had the same opportunity to determine what title he had, and both are bound by the conclusion; no confidential relations existed; they were strangers dealing at arm's length. Lewis v. Land Company, 124 Mo. 672. (5) When the deed was made by defendant and delivered to plaintiff, and he paid defendant the $ 850 and gave his note for $ 800, secured by deed of trust, there was a completely executed contract which a court of equity will not set aside. Mitchell v. McMullen, 59 Mo. 252; Hart v. Railroad, 65 Mo. 509; Key v. Jennings, 66 Mo. 356; Langdon v. Green, 49 Mo. 363; Holladay v. Menifee, 30 Mo.App. 207.

W. C. Hastin and Mann & Talbutt for respondent.

(1) Respondent is entitled to rescind and is not forced to his remedy at law, having been prevented from an examination of the title by representations of appellant, upon which he relied and upon the faith of which he bought. Holland v. Anderson, 38 Mo. 55; Bailey v. Smock, 61 Mo. 213. (2) Caveat emptor does not apply. Where the vendor knows or has reasonable grounds to believe that unless he does make the disclosure, vendee will be misled to his injury, then it is his clear duty in good conscience to make it, and if he fails to make it, he is liable for damages. Hayes v. Delzell, 21 Mo.App. 679. (3) "Representations made by a party as of his own knowledge and not as a mere matter of opinion, or general assertion, about a matter of which he has no knowledge whatever, is the same as the statement of a known falsehood and constitutes a fraud." Caldwell v. Henry, 76 Mo. 255; Nauman v. Oberle, 90 Mo. 669. (4) Respondent had a right to assume that appellant knew of the real condition of his title and had a right to take him at his word, and was not guilty of negligence in not looking further. Wannell v. Kem, 57 Mo. 478. (5) Where one induces another to abstain from seeking information, mere concealments may become fraudulent. Stones v. Richmond, 21 Mo.App. 17; Bailey v. Smock, 61 Mo. 213; McBeth v. Craddock, 28 Mo.App. 380. (6) At the time of the institution of this suit, and, in fact, at the trial, the defect in the title of appellant had not been cured by the statute of limitations, but conceding that it had, respondent could not be required under the circumstances to take title by limitation. Luckett v. Williamson, 31 Mo. 54.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is a suit in equity by plaintiff to rescind a contract for the purchase of one hundred and ten acres of land lying in Cedar county, for which plaintiff agreed to pay defendant $ 1,650, of which sum $ 850 was paid in cash and plaintiff gave his note for $ 800, and executed a deed of trust on all of said land to secure it. Defendant gave plaintiff a warranty deed with the usual covenants to all of the land.

The petition, after averring the foregoing facts, avers that the defendant represented to plaintiff that his title to the farm was clear, and was free from incumbrances, which representations plaintiff at the time believed and relied upon, but which were false and fraudulent and made with the knowledge that they were so by defendant, and for the purpose of deceiving and defrauding plaintiff; that defendant represented that he bought forty acres of said land from Cedar county as swamp land and had a deed from said county which was the only conveyance affecting the title to said forty acres, concealing from plaintiff that John M. Cook was the legal owner thereof; that relying upon the false and fraudulent representations in relation to the title to said forty acres, plaintiff neither demanded nor received an abstract of title therefor, but did demand and receive an abstract for the remainder of seventy acres; that plaintiff did not pay the note for $ 800 so given as part of the purchase money, for the reason that the title to said forty acres had failed and was outstanding in the heirs of John M. Cook, and plaintiff was unable to sell or mortgage the same; that upon learning of said defect in said title plaintiff offered to rescind said trade and sale and offered to reconvey the said farm to defendant upon the refunding to plaintiff the $ 850 which plaintiff had paid, and the surrender of his note for $ 800, all of which defendant refused to do but foreclosed said deed of trust and became the purchaser of all of said lands at the foreclosure sale. The prayer was for a decree setting aside the trustee's sale and a surrender of the note and for judgment for the $ 850 paid by plaintiff on the said farm and that a vendee's lien be decreed on the seventy acres for the purchase money so paid.

The answer admits the sale, warranty deed to plaintiff, payment of the $ 850 and the execution of the $ 800 note for balance of purchase money and deed of trust to secure the same; the sale thereunder, and purchase of all the land by defendant. Alleges that when he sold he had been in possession since March, 1883, and delivered possession of the land to plaintiff which plaintiff held without adverse claim thereto; that at the time he sold he was claiming title under deeds to all of said land believing he was the owner in fee and had good right to convey and believes so yet. Plaintiff replied by general denial.

The evidence consists of the admissions in the answer and the following oral testimony. Plaintiff testified that he purchased the land directly from the defendant in the office of Whitsett & Hightower, real estate agents at Jerico; that when he inquired about the title defendant told him he had bought the "40 acre tract" at a bona fide sale of swamp lands by Cedar county; that the title was good, and at the same time exhibited his swamp land deed; that there had been a number of transfers of the "70 acre tract;" that thereupon plaintiff demanded an abstract of the "70 acre tract" but said to the defendant there is no need of one to the "40 acre tract if the deed you have is the only entry there is" to which defendant replied, "Yes, all the entry is right here," referring to the swamp land deed which he handed plaintiff to examine. Plaintiff testified he relied upon this representation. D. C. Neal testified that four years prior to the suit the defendant told him that there was a link out of one forty of his land. Wm. Loyd testified that prior to the sale under the deed of trust defendant told him he was going to Lamar to see Mr. Timmons about perfecting title to one forty acres of his land which he had sold to Herman. Mr. Whitsett testified that defendant agreed to give an abstract to the "70 acre tract" but objected to giving an abstract to the "40 acre tract" because he had bought it from the county and spoke of it "originally being school land," and because of the expense, and that plaintiff relying upon defendant's statements in regard to the swamp land waived an abstract as to that forty.

Defendant testified that he had not agreed to furnish an abstract to any of the land, but when the deed came with his wife's acknowledgment the plaintiff then demanded an abstract and he instructed Whitsett to get an abstract to all the land but when the abstract came from Stockton for some unaccountable reason the forty acres was not included. He says: "I then gave him the deed that the county had given me." Told him it was swamp land, and that his deed was the only conveyance of it.

A patent from the United States to John M. Cook, Jr., to the "40 acre tract" was read in evidence bearing date May 1, 1868. It was shown that John M. Cook, Jr., hauled the logs to build him a house on this forty and built a temporary shanty to live in while building his house that he died at Cedarville in said county unmarried in the spring of 1870 or 1871, leaving brothers and sisters as his heirs; that some of these heirs removed to Oregon and were living at the time of the trial. Plaintiff also introduced the regularly certified plat book of original entries from the land office on file in the county clerk's office and across this "40 acre tract" on said book was written "John M. Cook, November 13, 1867;" "Certificate of entry, 29815." This plat book was shown to have been on file in 1886, some four years prior to the sale to plaintiff in 1890. Another uncertified plat book in the office contained the same entries substantially and Mr. Walker, the clerk, testified that the John M. Cook entry must have been there prior to 1883, when defendant bought the land as swamp land. De...