Huggins v. Davidson
| Decision Date | 29 March 1918 |
| Parties | JASON M. HUGGINS et al. v. ELLSWORTH DAVIDSON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded (with directions).
Lamar & Lamar for appellant.
(1) Cancellation or recission is an exercise of the most extraordinary power of a court of equity, and will not be exercised except in a clear case on strong and convincing evidence. 9 Corpus Juris. p. 1254, sec. 195; Jackson v Wood, 88 Mo. 76; Bryan v. Hitchcock, 43 Mo 527; Haydon v. Railroad, 222 Mo. 140; Cohron v Polk, 252 Mo. 281. (2) The evidence in such cases must be clear, cogent and convincing. 9 Corpus Juris, p. 1255, sec. 195; Jackson v. Wood, 88 Mo. 76; Cohron v. Polk, 252 Mo. 281. (3) And where proof of a negative allegation is a material part of plaintiff's case the burden is on him, to prove such negative allegation, unless the proof of such negative facts lie peculiarly within the knowledge of defendant. If such proof is equally available to both parties, then the burden is on the plaintiff. 16 Cyc. 297, note 15; Swinhart v. St. L. & Sub. Ry., 207 Mo. 434; Cummings v. Dent, 189 S.W. 1162; McGinnis v. Railway, 192 S.W. 115; Wolf v. United Railways, 155 Mo.App. 125, 130; Marshall v. Ferguson 94 Mo.App. 175; O'Kane v. Miller, 29 N. E. (Ind.) 439; New Albany v. Endres, 42 N. E. (Ind.) 687; Gas. Co. v. Small, 50 N. E. (Ind.) 479. And the rule is the same in cases for cancellation and rescission. Jackson v. Wood, 88 Mo. 76. (4) The courts will not decree rescission of an executed contract for the sale of land except on the ground of actual fraud. Mere failure of title in the grantor will not authorize such a decree. Hart v. Railway, 65 Mo. 509; Florida v. Morrison, 44 Mo.App. 438. The petition in this case does not charge actual fraud when stripped of its surplus verbiage. It simply charges that neither Nichols nor the plaintiff had the title to the Nebraska land, and that the title and the posession thereof was in a third party, one P. Gunderson. (5) The finding of the trial court is not binding on this court in equity cases. Such cases are substantially tried de novo by this court and the evidence will be received. Cohron v. Polk, 252 Mo. 281; Blount v. Spratt, 107 Mo. 408.
Barton & Impey for respondents.
(1) An answer in which defendants simply "deny each and every allegation in plaintiff's petition contained except such as are hereinafter stated and set forth" is neither the general nor special denial required by statute; and hence the "defendants' defense rested upon the particular allegations of the other defenses." Dezell v. Fidelity Co., 176 Mo. 253; Pace v. Ins. Co., 173 Mo.App. 506; Brickell v. Williams, 180 Mo.App. 576; Cooper v. Ins. Co., 139 Mo.App. 581. This being the law and no assignment of error being made to any ruling of the court "upon the particular allegations of the other defenses" set forth in the answer, the judgment should be affirmed. (2) The legal effect of the answer is to raise but one issue, i. e. whether the false representations alleged in the petition, and specifically admitted in the answer, were believed when made. While the evidence abundantly shows guilty knowledge, bad faith, and moral turpitude on the part of the defendant Ellsworth Davidson, yet none of these are necessary elements in plaintiffs' cause of action. Cook v. Smith, 184 Mo.App. 566, 28 L. R. A. (N. S.) 204, note. Plaintiffs were entitled, therefore, to judgment on the pleadings below, and hence to an affirmance here. Dezell v. Fidelity Co., 176 Mo. 279. This rule has been applied to a case where the allegations that the abstract failed to show title in the vendor were not denied. Horn v. Butler, 39 Minn. 515. (3) The objection to the depositions of Elder and Yost "were too general, vague and indefinite -- imposing upon the court the burden which belonged to the counsel of sifting and scrutinizing the proof to ascertain what portion came within the scope of the exceptions." Donnell v. Jones, 48 Am. Dec. 66; Bank v. Hutton, 224 Mo. 50; Simpson v. Van Laningham, 267 Mo. 298; Armstrong v. Henley, 182 Mo.App. 323; Hilburn v. Insurance Co., 140 Mo.App. 364; Coombes v. Knowlson, 193 Mo.App. 559. With this testimony in, to which there was neither reviewable exception nor motion to strike out, even appellants' counsel does not contend the evidence insufficient and the judgment should be affirmed for that reason. Farber v. Railway, 139 Mo. 284. (4) "A false statement as to the character of title to real estate, when made as a fact, or without regard to its truth or falsity, for the purpose of inducing another to purchase the same, constitutes actionable fraud, where a sale is induced thereby in reliance thereon, and injury results therefrom, and will entitle the vendee to maintain an action for the fraud and deceit, or a rescission of the sale, if he acts with reasonable promptness after the discovery of the fraud." 28 L. R. A. (N. S.) 202; Herman v. Hall, 140 Mo. 280; Cook v. Smith, 184 Mo.App. 566. (5) An abstract may be used as evidence against the one who furnishes it. 1 Ency. Evidence, 67. This is especially true here, where he said it was correct, and made by a reliable and bonded abstracter. When in evidence it should be interpreted according to its manifest meaning, although the meaning is not expressed by a full statement in words. Evans v. Foss, 9 L. R. A. (N. S.) 1039. The title thus admitted in Gunderson is presumed to have continued. Zwisler v. Storts, 30 Mo.App. 163; Janssen v. Stone, 60 Mo.App. 402; Jones on Evidence in Civil Cases (2 Ed.), sec. 58. (6) The palming off on plaintiff of the falsified abstract, even if defendant had passed a good title, is sufficient ground for rescission. Taylor v. Williams, 2 Colo.App. 559; Stave Co. v. Gardner, 154 F. 805; Boas v. Farrington, 85 Cal. 535.
This is a proceeding in equity, commenced by plaintiffs in the circuit court of Texas County, Missouri, on October 24, 1914. The petition charges that on or about August 26, 1914, plaintiffs and defendant Ellsworth Davidson entered into an agreement, by which the latter was to convey, or cause to be conveyed, to plaintiffs, by general warranty deed, the northeast quarter of Section 27, Township 13, Range 33, located in Lincoln County, Nebraska, containing 160 acres more or less, in exchange for the southeast quarter of the southwest quarter of Section 2, and the east half of the northwest quarter and the southwest quarter of the northwest quarter of Section 11, all in Township 28 north, of Range 8 west, located in Texas County, Missouri; that at the time of said agreement, said defendant had in his possession a general warranty deed, purporting to convey said Nebraska lands, from one Mary E. Nichols and her husband, James M. Nichols, duly acknowledged in Montgomery County, Kansas, on July 31, 1914, in which said deed there was a blank space for the name of the grantee, no name having been inserted therein; that in part performance of said agreement, said defendant filled in, or caused to be filled in, the names of these plaintiffs as grantees in said deed, and delivered the same to them; that in performance of plaintiffs' said agreement, they made, executed and delivered their warranty deed to said Ellsworth Davidson, by which they conveyed to him the Texas County lands aforesaid, which said deed was recorded in Texas County aforesaid, in Book 104, at page 609, of the Recorder's office of said county.
It is further alleged that at the time of said agreement and exchange, the defendant Ellsworth Davidson, for the purpose of inducing the same, positively, and with intent that it be relied upon, stated and represented to plaintiffs, that he was the owner of said Nebraska lands; that said deed would convey to plaintiffs the fee simple, absolute title thereto that for the purpose of confirming and supporting his statement and representation as aforesaid, he exhibited and delivered to plaintiffs what purported to be an abstract of title to said Nebraska land, and positively, with the intent to have the same relied upon, stated that it was a true abstract thereof, made by a reliable and bonded abstractor in the county where said Nebraska land is located; that upon examination of said abstract plaintiffs were convinced of the perfection and goodness of the title to be conveyed by said deed, and relying upon the representations of said defendant, as to such abstract, and being deceived thereby, they were induced to, and did, make and enter into said contract of exchange; whereas in truth and in fact, neither the said Mary E. Nichols, James M. Nichols, nor the defendant Ellsworth Davidson then, or at any other time, had, or held, a good, sufficient fee simple title, or any other kind of title, to said Nebraska lands; nor was the abstract so exhibited by said defendant a true or genuine abstract to said lands, made by a competent, reliable or bonded abstractor of the county in which said real estate was located, or elsewhere; but on the contrary, the title to said real estate, as well as possession thereof, was then vested in, and held by, one P. Gunderson, of Lincoln County, Nebraska; that said abstract, although originally made by a rehable and bonded abstractor, after the making thereof, and before the same was exhibited or delivered to plaintiffs, had been altered by entering the name of said P. Gunderson, as one of the grantors in a deed, shown in said abstract, and under which said deed the said Mary E. Nichols claimed by mesne conveyances; whereas in truth, and in fact, the said P. Gunderson did not join in said deed, nor did the records of Lincoln County, Nebraska, show such joinder; nor...
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