Hudson v. Cahoon

• Decision Date: 22 February 1906
• Citation: 193 Mo. 547,91 S.W. 72
• Parties: HUDSON v. CAHOON.
• Court: Missouri Supreme Court

91 S.W. 72

193 Mo. 547

HUDSON v. CAHOON.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. PLEADING—DEMURRER — ANSWERING OVER —EFFECT.

Where defendant answered over after his demurrer was overruled, he thereby waived all objections to the petition, except that it did not state facts sufficient to constitute a cause of action, or that the court had no jurisdiction over the subject-matter of the action.

2. APPEAL — REVIEW—JURISDICTIONAL QUESTIONS.

Objections that the petition did not state facts sufficient to constitute a cause of action and that the court had no jurisdiction of the subject-matter are open for adjudication on appeal, whether they are raised in the trial court or not.

3. LIMITATIONS OF ACTIONS — INTEREST IN LAND—EASEMENTS.

The right to minerals, marble, and granite beneath the surface of land conveyed, the right

to mine the same, and the right of ingress and egress in order to conduct such mining operations, reserved to a grantor, constituted an "interest in real estate," within Rev. St. 1899, § 4262, providing that an action to recover an interest in real estate may be brought at any time within 10 years after the right of action accrued.

4. SAME—CAUSE OF ACTION—ACCRUAL.

Where defendant, while acting as plaintiff's agent, obtained a blank deed to certain real estate from him, to be used in conveying the property under defendant's authority to sell, and thereafter defendant secretly inserted his own name in the deed and accounted to plaintiff for the alleged proceeds of a sale, plaintiff's right of action to recover an interest in the land, reserved to defendant in a subsequent conveyance by him to another, accrued on the date defendant filed the deed by which he acquired title for record.

5. SAME—DISCOVERY OF FRAUD.

Defendant, while acting as plaintiff's agent in 1892, obtained a deed to certain land from plaintiff, in which the name of the grantee was left blank for the purpose of completing the contemplated sale, and in the same year defendant secretly inserted his own name in the deed, accounted to plaintiff for the proceeds of an alleged sale of the land, and shortly thereafter conveyed the same to another at an advance over the price so accounted for; both deeds being recorded in 1892 and reciting the consideration moving to the grantors. Held, that plaintiff's right to recover the profits made by defendant in such transaction was disclosed by the recording of the deeds, and was barred after five years.

6. TRUSTS—ENFORCEMENT—LACHES.

Where plaintiff's delay in suing his former agent to recover an interest in certain land, which the agent had secretly purchased himself, had not operated to injure defendant, plaintiff was not barred from relief by laches.

Appeal from Circuit Court, Madison County; Samuel Davis, Special Judge.

Action by William A. Hudson against Benjamin B. Cahoon. From a decree in favor of plaintiff, defendant appeals. Reversed.

Moses Whybark, Robert A. Anthony, and Davis M. Tesreau, for appellant. Wm. D. Hudson and E. D. Anthony, for respondent.

MARSHALL, J.

This is an action to divest out of defendant, and vest in the plaintiff, the right and title to all the mineral, marble, and granite on or under a certain tract of land in Madison county, in the state of Missouri, together with a right of ingress and egress from the same, to mine and work said land, and to recover $584.55 profits, alleged to have been received by the defendant while acting as the agent of the plaintiff in respect to said land. There was no motion for new trial or bill of exceptions filed, so far as is disclosed by the record here, and therefore the case stands for adjudication in this court upon the record proper. On the 20th of February, 1902, the plaintiff instituted this suit. The petition (omitting caption) is as follows: "Now comes plaintiff, and by leave of court first had files this his amended petition, and for his cause of action states: That on the 6th day of June, 1892, and for a long time prior thereto, he was the owner of a certain tract of land, situated in the county of Madison and state of Missouri, and described as follows, to wit: All the land formerly owned by William A. Hudson in the Peter Burns survey numbered 3,171, and in the William Dillon survey numbered 3,125, which lies south and east of Mill creek and the prongs there which is to include [here follows a description of 56.3 acres, together with a lane 16½ feet wide leading thereto]. That on said 6th day of June, 1892, and for several years prior thereto, defendant was the agent of plaintiff for the management and sale of said land. That during all of said periods, plaintiff was a resident of the city of St. Louis, Missouri, and defendant was a resident of said county of Madison. That on, to wit, about the 26th day of May, 1892, defendant, while acting as said agent of plaintiff, represented to plaintiff that he thought he could sell forty (40) acres of the aforesaid land for the sum of one hundred and fifty dollars ($150.00), and requested plaintiff to execute and return to defendant a blank deed to all of said land, which said blank deed was forwarded by defendant to plaintiff at said time, with the name of the grantee being left blank in said deed. That plaintiff, being wholly ignorant of the value of said land, and relying wholly upon defendant, his agent, in said transaction, did on the 6th day of June, 1892, execute said blank deed to said land, the name of the grantee being left blank in said deed, and forwarded said deed to defendant. That thereafter, defendant, without the knowledge or consent of plaintiff, and with the fraudulent design of obtaining plaintiff's said land at a sum far below its value, did fraudulently cause his [defendant's] own name to be inserted as grantee in said blank deed, and thereafter caused said deed to be recorded on the 27th day of August, 1892, in Book 17, at page 475, in the office of the recorder of said Madison county, Missouri. That the consideration named in said deed was one hundred and eighty dollars ($180.00) and that, to wit, on or about the 17th day of November, 1892, defendant paid to plaintiff the sum of one hundred sixty-five dollars ($165.00), being the aforesaid consideration named in said deed less the sum of fifteen dollars, which said sum defendant deducted for services in making said deed, and for paying the taxes on said land. That said land, during all said times, was worth much more than said sum of one hundred and eighty dollars, which fact was well known to defendant. That on, to wit, about the 24th day of November, 1892, defendant by deed, conveyed all agricultural and timber rights, interests and values with possessory rights in and to said above-described land to one William Parks of said Madison county for the sum of seven hundred and sixty-four and 55/100 ($764.55) dollars. Wherefore defendant became indebted to plaintiff in the sum of five hundred and eighty-four and 55/100 ($584.55) dollars, as agent and trustee of plaintiff, said sum being the profit realized by defendant by the sale of said land to Parks as aforesaid. That defendant refused and still refuses to account to plaintiff for said sum. That in said deed from defendant to said Parks, defendant reserved to himself the right and title to all mineral of every nature and marble and granite in, on or under said above described land, together with the right of ingress and egress from the same, to mine and work said land. That defendant has at all times concealed from plaintiff the fact that he inserted his (defendant's) name as grantee in said deed, as aforesaid, and has likewise concealed from plaintiff the fact that defendant sold said land to said Parks as aforesaid, and plaintiff states that these facts came to his knowledge for the first time in ____ day of April, 1901. Wherefore plaintiff prays judgment against the defendant for said sum of five hundred and eighty-four and 55/100 ($584.55) dollars, together with interest thereon at the rate of 6 per cent. per annum from said 24th day of November, 1892; that defendant be ordered to reconvey to plaintiff all the title and interest in said land reserved as aforesaid by defendant in his said deed to said Parks, and the plaintiff be granted a decree divesting all said title and interest out of defendant and vesting the same in plaintiff; that the defendant be ordered to give a full and complete accounting to plaintiff of his trust in managing and selling said land as agent of plaintiff, for his costs herein, and for such further relief as to the court may seem just and proper."

The defendant demurred to the petition, and, the demurrer being overruled, he answered over. The answer is a general denial of all allegations not expressly admitted. It then admits that on the 6th of June, 1892, the plaintiff owned the surface timber and agricultural rights in and to the lands described in the petition, and the right of ingress and egress, and that, on said date, the plaintiff acknowledged a deed to said land, leaving the name of the grantee blank, for a consideration of $180, and that the defendant filed in his name as grantee, and caused the deed to be filed for record in Madison county, on the 27th of August, 1892, but denies that he thereby defrauded or attempted to defraud the plaintiff; admits that the consideration named in the deed was $180, which he alleges he paid as follows: Cash to the plaintiff $131.35, services to the defendant for making the deed and for payment of taxes $15, and $33.65 other charges were then made by the defendant against the plaintiff and set forth in the account filed with the answer; admits that the defendant sent the deed to the plaintiff to be executed and acknowledged with the name of the grantee in blank, and that it was intended to and did include and convey the land now described in it, and that, after the 27th of August, 1892, the plaintiff had notice and was informed by the...