Johnson v. Goldsby

• Decision Date: 10 December 1888
• Citation: 32 Mo.App. 560
• Parties: WILLIAM O. JOHNSON, Appellant, v. R. W. GOLDSBY et al., Respondents.
• Court: Kansas Court of Appeals

32 Mo.App. 560

WILLIAM O. JOHNSON, Appellant, v. R. W. GOLDSBY et al., Respondents.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Appeal from Chariton Circuit Court. --HON. G. D. BURGESS, Judge.

AFFIRMED.

The case is stated in the opinion.

George Robertson, for the appellant.

(1) The payment of the debt by Johnson subrogated him to the rights of the county, or in other words, the payment operated to assign the debt of the county to him. Pomeroy's Equity secs. 798, 1211, 1213; Liderdale v. Robinson, 2 Brock. 168; Crosby v. Taylor, 15 Gray [Mass.] 64; Neeley v. Jones, 37 Am. Rep. 794. (2) Defendants accepted their deed with full knowledge of all the facts recited in the petition; knew the mortgage was due, that the county had advertised the land for sale under its mortgage and knew further that Johnson paid the debt off to prevent the sale. They are therefore estopped from repudiating a benefit received by them. Neeley v. Jones, supra; Pomeroy Eq. Jur. sec. 802; Jones on Mort. sec. 856; The Law of Mort. sec. 136; Gatewood v. Gatewood, 75 Va. 407. (3) There was no fraud in fact alleged in plaintiff's petition. Then, that being the case, it would have to be pleaded by the defendants. But it makes no difference whether the deed from W. H. Johnson to W. O. Johnson was declared void on account of fraud in fact or fraud in law. Crosby v. Taylor, supra; Cole v. Malcolm, 66 N.Y. 363; Selleck v. Phelps, 11 Wis. 397.

A. W Mullins and S. P. Huston, for the respondents.

(1) A volunteer cannot be subrogated. Evans v. Halleck, 83 Mo. 376; Richmond v. Morrison, 15 Ind. 134. (2) Plaintiff predicates his interest upon and deduces it through an adjudged and admitted fraud. Equitable rights cannot have their root in such a soil. Bump on Fraud. Conv. [3 Ed.] 613 and cases cited. " No right can be deduced from a fraudulent act. Every one who engages in a fraudulent scheme forfeits all right to protection at law or in equity. The law does not so far countenance fraudulent contracts as to protect the perpetrator to the extent of his investment * * * or for sums subsequently paid to creditors, even though he thereby pays off a mortgage or a debt contracted in the purchase of the property." Authorities supra; Allen v. Berry, 50 Mo. 90. (3) " Where the fraudulent act must be depended upon or forms a necessary link in the allegations necessary to the statement of a cause of action, it is fatal." Baldwin v. Moffit, 94 N.Y. 82, and cases there cited. " The law cares very little what a fraudulent party's loss may be, and exacts nothing for his sake. It certainly will not undertake to indemnify him for expenditures made in the prosecution of his fraudulent purpose." Masson v. Bovet, 1 Den. [N. Y.] 69, 74, 75. (4) The respondent is not asking relief; appellant is the actor, and in such case where fraud appears, even between the parties themselves, equity will not interfere but leaves them to lie in their own bed. Hall v. Callahan, 66 Mo. 316. Much more will relief be refused where the plaintiff must deduce his right through his own fraud, and the defendant is innocent.

RAMSAY J.

In this case the circuit court sustained a demurrer to plaintiff's petition and entered a judgment thereon, from which plaintiff has appealed to this court. Therefore, the only question for our consideration is the sufficiency of the petition, which, in substance sets forth the following facts as a cause of action: That on the sixth day of March, 1876 the plaintiff William O. Johnson purchased of one W. H. Johnson certain lands situated in Chariton county, Mo., described in the petition, and received a general warranty deed therefor; that said deed was, on the tenth day of January, 1878, recorded in the office of the recorder of deeds, within and for said county; that on the thirtieth day of March, 1876, after the execution and delivery of said deed to plaintiff, but before it was filed for record, the said W. H. Johnson executed and delivered to the county of Chariton a mortgage on said lands with power of sale, to secure to said county the payment of three promissory notes, described in the mortgage, and which were, at that date, given by said W. H. Johnson to said county for certain school money which he then borrowed from the county; that one of these notes was for the principal sum of two hundred dollars, one for $219.75 and one for twenty-one dollars, each due one year from date and bearing interest at the rate of ten per cent. per annum conditioned to compound if not paid annually; that said mortgage was given without the knowledge or consent of plaintiff and was taken by said county without knowledge, upon its part, of the fact that W. H. Johnson had previously deeded the same lands to plaintiff; that said county, on the thirtieth day of March, 1876, had its mortgage duly recorded; that, in order to prevent a sale of the lands under this mortgage, plaintiff, on the ninth day of April, 1878, paid interest on said notes in the sum of $45.10; on the thirteenth day of May, 1879, $60.20, and on the fifteenth day of January, 1880, $31.10; and after the county had advertised the lands for sale on account of the non-payment of the notes and interest, plaintiff paid all of said notes aggregating $440.75, making a total sum of $557.15 paid by plaintiff to said county under said mortgage; that on the twenty-seventh day of October, 1877, said W. H. Johnson became indebted to one Annie Munson in the sum of $302.90; that afterward, said Annie Munson, obtained a judgment against said W. H. Johnson for this debt and costs, and under an execution issued out of the Chariton circuit court, in pursuance of said judgment, the lands involved in this controversy were, on the twenty-third day of October, 1879,...