Huggins v. Davidson

• Decision Date: 29 March 1918
• Docket Number: No. 19185.,19185.
• Citation: 274 Mo. 34,202 S.W. 395
• Parties: HUGGINS et al. v. DAVIDSON et al.
• Court: Missouri Supreme Court

202 S.W. 395

274 Mo. 34

HUGGINS et al. v. DAVIDSON et al.

No. 19185.

Supreme Court of Missouri, Division No. 1.

March 29, 1918.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Proceedings in equity by Jason M. Huggins and another against Ellsworth Davidson and Annie Davidson and others. From decree rendered, defendants named appeal. Reversed and remanded, with directions.

This is a proceeding in equity, commenced by plaintiffs in the circuit court of Texas county, Mo., 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 caused to be conveyed, to plaintiffs, by general warranty deed, the northeast quarter of section 27, township 13, range 33, located in Lincoln county, Neb., 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, Mo.; 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, Kan., on July 31, 1914, in which said deed there was a blank space for the no me 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 else-where 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, Neb.; that said abstract, although originally made by a reliable and bonded abstractor, after the making thereof, and before the same was exhibited or delivered to plaintiffs, had been altered by enter" ing 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, Neb., show such joinder; nor did the abstract as originally prepared and certified to by said abstractor show such joinder.

The petition further alleges that on the 5th day of September, 1014, defendants Ellsworth Davidson and Annie Davidson, his wife, executed and delivered to the American State Bank of Coffeyville, Kan., their promissory note for $275, due six months after date, with 10 per cent. interest from date of same, and for the purpose of securing same executed a mortgage on the Texas county lands aforesaid, which said mortgage is duly recorded in said county, in Book 108, at page 54, of the recorder's office.

It is averred that on or about October 20, 1914, plaintiffs first learned of their entire lack of title, and of the worthlessness of said deed to the Nebraska lands, and instantly offered to return said deed to defendant Ellsworth Davidson, or any other proper party, and demanded a return of their Texas county lands, which said offer and demand were refused; "and now in court plaintiffs tender said deed and offer to make any conveyance or do anything necessary to place defendants in the position they occupied prior to such exchange, and to restore anything they have received by reason of the transaction." They allege that they, the defendants, and said Nichols and wife, are residents of Montgomery county, Ran.; that said agreement and deeds were made in said county: that it is located about 300 miles from the Nebraska land, and the records pertaining to its title; that defendant Davidson and wife, and Nichols and wife, are insolvent, and that an action at law against them would be useless in a suit on the covenants of said deed; that plaintiffs have no adequate remedy at law.

The petition concludes by asking the court to cancel the deed of the Texas county lands to Ellsworth Davidson and the mortgage aforesaid, given to defendant bank. They ask, in addition to foregoing, general relief.

Defendant Davidson and wife answered in said cause with a general denial, except as to such matters as are afterwards admitted.

It is admitted that Ellsworth and Annie Davidson are husband and wife; that Mrs. Davidson had nothing to do with said trade, and has no interest in this controversy, except as the wife of said Ellsworti Davidson. They allege that Mrs. Davidson told Jason M. Huggins she did not want her husband to trade the Nebraska land, but wanted to keep it; that said Huggins traded for said land within one hour after said conversation.

It is alleged that Ellsworth Davidson, en or about the 26th of August, 1914, entered into an agreement with the plaintiff Jason M. Huggins, to exchange the Nebraska land aforesaid for said Texas county lands; that he notified said Huggins that he had procured the title to said Nebraska land from said Mary E. Nichols and husband; that the deed was in blank as to the second party; that he had the authority from said Nichols and husband to fill in the names of the grantees in said conveyance to whomsoever he might sell or trade the same.

Defendant Ellsworth Davidson further avers that he did not guarantee the title to said Nebraska land, but he believed then and now that the title to same was vested in said Nichols and her husband, who exhibited to him an abstract of title, which he had examined by an attorney; that said attorney stated the abstract seemed to show a merchantable title in said Mary E. Nichols and her husband.

Said defendant further avers flat he stated all the facts within his knowledge with reference to the title of said property to said Jason M. Huggins, who seemed to be negotiating the trade for himself and his son, Charles W. Huggins; that he gave to said Jason M. Huggins the abstract of title; that the latter had said abstract examined by one A. C. Bowman; that the latter, in his presence, stated to said plaintiff the abstract, in his judgment, showed a merchantable title to said Nebraska land. He avers, that he told plaintiff Jason M. Huggins that he would not guarantee the title; that he did not know anything about it, only what was shown by the abstract and what was told him by said James M. Nichols, which was communicated to said plaintiff; that said plaintiff, in the presence of Bowman and others, stated that he expected he was stung, but that he was going to make the trade anyway, and proceeded to close the deal; that the names of Jason 11. Huggins and Charles W. Huggins were written in the blank left for that purpose, the names of the grantees having been left blank by said Nichols and husband; that plaintiffs, with full knowledge of all the facts, jointly and severally accepted said deed thus executed without any warranty or covenants of warranty on the part of these defendants, but succeeded to all the rights of ownership that were possessed by the said Mary E. Nichols and James N. Nichols to the said Nebraska land. It is alleged that the deed to the Missouri land was then delivered to these defendants with the name of the grantees blank, in exchange for the Nebraska laud.

Said defendants further aver that they made no false or fraudulent representations to said Jason Huggins to induce him to trade for said land; that he acquainted said Huggins with all the facts, as far as they had come to his knowledge; that said plaintiffs acted on their own judgment in trading for said Nebraska land; that said Ellsworth Davidson, suggested to said Jason M. Huggins to not close the deal for said land at that time, but to wait and investigate the title fully; that he would leave the trade open until such time as said plaintiff could satisfy himself about the title to the Nebraska land, but said plaintiff preferred not to delay the closing of the trade, accepted the deed as it was, without any guaranty of title on the part...