Holloway v. Vincent

• Decision Date: 16 May 1910
• Citation: 128 S.W. 1009,143 Mo.App. 434
• Parties: ROBERT HOLLOWAY, Administrator, Respondent, v. GEORGE W. VINCENT et al., Appellants
• Court: Kansas Court of Appeals

128 S.W. 1009

143 Mo.App. 434

ROBERT HOLLOWAY, Administrator, Respondent, v. GEORGE W. VINCENT et al., Appellants

Court of Appeals of Missouri, Kansas City

May 16, 1910

Appeal from Cole Circuit Court.--Hon. Wm. H. Martin, Judge.

AFFIRMED.

Judgment affirmed.

Silver & Dumm, Gove & Davidson and W. J. Voshall for appellants.

(1) It is competent to show that the consideration recited in a deed is fictitious. Bobb v. Bobb, 89 Mo. 411; Hollocher v. Hollocher, 62 Mo. 267; O'Day v Conn, 131 Mo. 321; Fontaine v. Savings Institution, 57 Mo. 552. (2) The description in question is wholly insufficient to support a judgment to enforce a vendor's lien. Jefferson City v. Whipple, 71 Mo 519; State v. Burroughs, 174 Mo. 519; State v Railway, 114 Mo. 1.

W. S. Pope and Robert Walker for respondent.

It has been the purpose of courts to support deeds interpartes and in their interpretation not to require the accuracy of description required in sheriff's sales or other transfers, without the consent of the owner. Hart v. Rector, 7 Mo. 531; Webster v. Blount, 39 Mo. 500; MacPike v. Allman, 53 Mo. 551; Carter v. Holman, 60 Mo. 498; Johnson v. Boulware, 149 Mo. 451; Whitaker v. Whitaker, 175 Mo. 1; Cole v. Mueller, 187 Mo. 638; Martin v. Stone, 79 Mo.App. 309; Cochran v. Railway, 94 Mo.App. 469.

OPINION

ELLISON, J.

This action is to enforce a vendor's lien against certain real estate. The judgment in the trial court was for the plaintiff.

It appears that plaintiff's intestate, Henry Kemple, conveyed to George W. Vincent a tract of land. The conveyance was a warranty deed for the consideration expressed therein of one thousand dollars, the receipt of which was acknowledged. Vincent sold the land to the defendant Cramer for one hundred dollars, conveying by quitclaim deed. There was evidence tending to show Cramer knew, at the time he purchased, that the purchase money had not been paid.

The defense is based on the assertion that while there was a deed to Vincent expressed to be in consideration of one thousand dollars, yet, in reality, it was a gift to Vincent and that nothing was paid or expected to be paid by him; in short, that as the land was given to him there was no debt to form the basis of a vendor's lien and therefore the judgment should have been for defendants.

The right conclusion on the merits of the case depends somewhat on inferences to be drawn from undisputed facts. We deem it established beyond doubt that Kemple and Vincent agreed upon a consideration of one thousand dollars, and that they directed the justice of the peace, who wrote the deed, to put that amount as the consideration in the deed, and that it was done accordingly. We deem it clearly enough established that defendant Cramer knew when he bought the land of Vincent that the latter had not paid any part of this consideration. He therefore bought with notice and if anything was charged as a consideration--if Vincent was to pay for the land--a lien was created for the amount which is a charge on the land in Cramer's hands as a purchaser with notice. Was there a debtor and creditor relation between Kemple and Vincent? Some evidence in favor of that relation is the fact of the sale, merely. For where land is sold and a warranty deed executed, it will be presumed it was for something of value. When to this is added an expressed consideration actually agreed upon by the parties and inserted in the deed, it becomes exceedingly strong evidence that the buyer was to pay for the land; and when it appears that he did not, a continued debtor and creditor relation is established. Stating a valuable consideration in a deed counts for something. It has been ruled that if a deed shows a valuable consideration, such as money or other value, it must be taken to be a valuable consideration, and you will not be allowed to show a good consideration, such as a gift for natural love and affection. [Winningham v. Pennock, 36 Mo.App. 688; Edwards v. Latimer, 183 Mo. 610, 82 S.W. 109; Scott v. Scott, 1 Mass. 527; Whitman v. Hapgood, 10 Mass. 437; 2 Herman on Estoppel, sec. 624.] The effect flowing from the different kinds of consideration cannot be denied. Thus, if a warranty deed recites a valuable consideration and a question of liability on the warranty should arise, the grantor would be estopped from showing that the consideration was not valuable but merely a good consideration. He could show that it was a...