Hickey v. Drake

• Decision Date: 28 February 1871
• Citation: 47 Mo. 369
• Parties: MICHAEL HICKEY, Respondent, v. JOSHUA H. DRAKE, Appellant.
• Court: Missouri Supreme Court

47 Mo. 369

MICHAEL HICKEY, Respondent,

v.JOSHUA H. DRAKE, Appellant.

Supreme Court of Missouri.

February Term, 1871.

Appeal from Livingston Court of Common Pleas

L. T. Collier, for appellant.

Broaddus & Pollard, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The petition was in the nature of an equitable suit to procure the rescission of a contract and the cancellation of certain deeds and notes made in conformity therewith.

It is alleged by the respondent, Hickey, that on the 19th day of November, 1868, he entered into a contract with the appellant, Drake, whereby Drake agreed to sell him the northwest quarter of section 30, also the southwest fourth of the southwest quarter of section 19, all in township 57, range 23, in Livingston county, for the consideration of $1,716, of which amount $80 was paid down, and $420 to be paid in fifteen days thereafter, at which time Drake was to make to him a good and sufficient deed for the premises, upon condition that he would make and deliver to Drake three good promissory notes, dated November 19, 1868, bearing ten per cent. interest, due respectively in one, two and three years, for $405 each, the same to be secured by a deed of trust on the real estate sold. There is an averment of compliance with all these terms by Hickey; and it is stated that Drake, in writing the agreement and the deed, inserted therein the southeast quarter of the southeast quarter of section 24, instead of the southwest quarter of the southwest quarter of section 19; that the last described tract of land was good timber, and was the inducement to the purchase of the whole, as the other piece was prairie and was not valuable without the timber; that the forty-acre tract actually conveyed was not worth as much by $800 as the tract contracted for; that at the time Drake sold Hickey the southwest quarter of the southwest quarter of section 19 he did not own the same, and well knew that he was not the owner of the same, but falsely and fraudulently represented that he was such owner for the purpose of inducing Hickey to buy the northwest quarter of section 30, the other piece of land contracted for.

The answer admitted that Drake was not the owner of the southwest quarter of the southwest quarter of section 19, but denied that there was any mistake or fraud or misrepresentation. To this answer there was a replication.

Upon the hearing of the cause the court framed and submitted to the jury the following issue: “Did the defendant (Drake) on or about the 19th day of November, 1868, sell to the plaintiff (Hickey) the southwest quarter of the southwest quarter of section 19, township 57, range 23, situated in Livingston county,...