Johnson v. Jines

• Decision Date: 20 February 1917
• Docket Number: No. 18304.,18304.
• Citation: 193 S.W. 15
• Parties: JOHNSON v. JINES.
• Court: Missouri Supreme Court

193 S.W. 15

JOHNSON v. JINES.

No. 18304.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Appeal from Circuit Court, Ripley County; J. P. Foard, Judge.

Action by J. E. Johnson against A. M. Jines, with which was consolidated an action of replevin brought by defendant. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

On September 12, 1912, plaintiff filed in the circuit court of Ripley county, Mo., his petition to set aside and cancel certain conveyances made by him to defendant. Thereafter, on March 19, 1913, a second amended petition was filed in the cause, in two counts. In the first count it is alleged that plaintiff was the owner of 340 acres of land in Ripley county aforesaid; that defendant was the owner of the Terminal Hotel, in the city of Cape Girardeau, Mo.; that on April 22, 1912, plaintiff and defendant entered into an agreement to exchange their respective properties, upon the terms hereafter mentioned; that on the date above mentioned, plaintiff conveyed and delivered to defendant his real estate aforesaid, of the value of $12,000, together with certain personal property described in petition, of the value of $2,000, for an undivided one-half interest in the Terminal Hotel aforesaid, subject to a mortgage on said hotel, in favor of C. A. Marchildon and Company, for $7,500. The petition then alleges that the exchange of properties aforesaid was brought about and obtained through the fraud of defendant, as alleged in said amended petition. The court is asked to cancel said deed and bill of sale executed by plaintiff as aforesaid; to divest said defendant of the legal title to the Ripley county land, and personal property aforesaid; to vest the legal title thereto in the plaintiff, and to grant such other relief as to the court may seem just and proper. The second count of said petition alleges that plaintiff has been damaged on account of defendant's alleged fraud, in the sum of $2,000, etc. The answer contains a general denial, except as to such matters as are alleged to be true. It admits that on April 12, 1912, plaintiff was the owner of the Ripley County land described in petition; it admits that defendant was the owner of the undivided one-half interest in the Terminal Hotel property, specifically described in petition. Defendant admits that he entered into the contract of exchange of said properties; that plaintiff executed and delivered to him the warranty deed and bill of sale aforesaid; that he executed and delivered to plaintiff, on the date aforesaid, a warranty deed for the undivided one-half interest in the Terminal Hotel property, subject to the Marchildon mortgage aforesaid; that plaintiff assumed and agreed to pay said mortgage. The answer further alleges that De Long was a bona fide purchaser and owner of the undivided one-half interest in said Terminal Hotel property; that defendant held a series of notes for $8,800, secured by a deed of trust, on De Long's half interest aforesaid. This paragraph of the answer concludes with a denial of any fraud having been practiced by defendant on the plaintiff. The answer further sets up an alleged conspiracy between plaintiff, his son, and De Long, to injure defendant, in respect to the De Long notes secured as aforesaid. It likewise charges that plaintiff has not tendered to defendant all the consideration he received for said exchange; that he has permitted the hotel furniture to be sold under the chattel mortgage given thereon, so that said property has been lost to defendant, and he cannot be placed in statu quo. The answer concludes with the allegation that plaintiff, on the _____ day of May, 1912, entered upon the Ripley county real estate aforesaid, and unlawfully withholds possession of same, to his damage, in the sum of $1,000. He alleges the monthly value of the rents and profits of said land at $40, and prays judgment for possession, damages, rents, etc. The reply is a general denial of the new matter contained in said answer.

Plaintiff owned the 340 acres described in petition, which lies about eight miles north of Doniphan, the county seat of Ripley county, in the Little Black River bottom. Defendant came to plaintiff's house a few days before the exchange was made, and went over the land in controversy with plaintiff. Defendant had been buying and selling real estate for many years, and, according to the testimony, must have been a good judge of land, and an experienced real estate dealer. He told witness Speaks that he had traded for the above farm, and that he considered it one of the best he had seen in that section. No claim is made in the pleadings that defendant was deceived as to the value placed by plaintiff on either the 340 acres, or the personal property conveyed to him. Plaintiff's evidence is uncontradicted to the effect that no value was named as to his property, but that he put it in at $19,000, as a lumping deal. There was an outstanding deed of trust on the plaintiff's 340-acre farm of $4,200. There was also an outstanding deed of trust, in favor of Cyrille A. Marchildon, of Thebes, Ill., for $7,500, on the entire Terminal Hotel property aforesaid.

It appears from the evidence that on January 27, 1912, defendant Jines and wife executed a warranty deed for the undivided one-half interest in the Terminal Hotel property aforesaid, for the expressed consideration of $17,500, to W. F. De Long. Said deed contains the following recitals:

"This conveyance of a one-half interest is made subject to an incumbrance amounting to $7,500.00 now standing of record in favor of E. G. Rolwing, trustee, the said A. M. Jines, individually assumes the payment of same, on or before maturity, and covenants to hold the interest of W. F. De Long harmless from the foreclosure of same.

"As between the parties, it is to be regarded as a lien simply on the undivided interest of A. M. Jines.

"Of the consideration above mentioned $7,500.00 is paid in cash and the balance is evidenced by notes secured by deeds of trust, and to secure the payment thereof the said A. M. Jines retains a vendor's lien upon the premises conveyed."

Plaintiff and defendant were brought together by one or more members of the Bowman Bros. Realty Company. Plaintiff declined to pay any commission, and said he would act as his own agent. The above firm represented defendant in the negotiations and looked to him for the payment of their $300 commission. On April 22, 1912, both plaintiff and defendant met at the office of Bowman Bros., and consummated their negotiations as follows: Plaintiff's property was estimated at $17,000 for the 340 acres and $2,000 for the personal property, making a total of $19,000, from which there should be deducted the $4,200 deed of trust, which defendant was to assume. This left plaintiff's equity, including the personal property, at $14,800. The undivided half interest of defendant in the hotel was put in at $17,500, subject to the Marchildon deed of trust on the entire hotel property for $7,500, the payment of which had been assumed by defendant. This left the defendant's equity at $10,000, with plaintiff assuming the payment of said $7,500 deed of trust. The difference between the two equities aforesaid was $4,800, which was to be paid to plaintiff, by defendant transferring to him notes executed to Jines by De Long for the other half interest in said hotel. Defendant owed Bowman Bros. $300 as commission, and plaintiff agreed to assume same by executing his own notes to Bowman Bros. for $300, and put up as collateral security another $500 note of De Long's, furnished by defendant, and out of which the latter was to have a return of $100, when paid.

Defendant testified that during January, 1912, he leased the dining room of the Terminal Hotel to De Long, for two years and was to charge him no rent for same. After this arrangement, the evidence tends to show that defendant looked after the rooms, and De Long looked after the dining room. Plaintiff turned over possession of said farm and the personal property aforesaid to defendant, and they were left in charge of A. M. Dunning, as defendant's agent. Plaintiff took Jine's place in the hotel, with De Long in the dining room, and ran the rooming part about 21 or 22 days. During the latter period, plaintiff claims that he then learned that defendant had been guilty of misrepresentation and fraud, in respect to the trade aforesaid. In order to avoid repetition, the evidence in regard to defendant's alleged fraud will be considered in the opinion. Plaintiff thereupon tendered the warranty deed back to defendant for the half interest in the hotel, which he had formerly purchased from respondent, and notified defendant that he would rescind the contract. (The question of tender will be more fully considered in the opinion.) Plaintiff left the hotel, took possession of the 340-acre farm, and got possession of said personal property, through an action of replevin. The latter was consolidated with the present suit, and tried by the court as a single action.

On July 1, 1913, the trial court, after hearing the evidence, took the case under advisement, and on September 8, 1913, found the issues in this cause in the suit to cancel a deed, for the defendant, and rendered judgment accordingly. The court also found, as a part of its decree, that plaintiff took possession of said 340 acres on April 18, 1912, and is still in possession. The court further found that defendant was entitled to $300 per year, for the rent of said farm for the years 1912 and 1913, and at the same rate until possession was delivered to defendant. The costs were likewise taxed against appellant. The court in said decree found for defendant in the action of replevin, and gave judgment against plaintiff and his sureties on the replevin bond for $1,500, with costs, etc. The court further found that defendant, A. M. Dunning, has no interest in said personal property, but held...