Jones v. Peterson

• Decision Date: 17 May 1934
• Docket Number: No. 31809.,31809.
• Citation: 72 S.W.2d 76
• Parties: H. SAM JONES v. L.P. PETERSON, Guardian and Curator of MILLARD REDMAN and WOODROW REDMAN, Minors, MILLARD REDMAN and WOODROW REDMAN, Appellants.
• Court: Missouri Supreme Court

72 S.W.2d 76

H. SAM JONES v. L.P. PETERSON, Guardian and Curator of MILLARD REDMAN and WOODROW REDMAN, Minors, MILLARD REDMAN and WOODROW REDMAN, Appellants.

No. 31809.

Supreme Court of Missouri.

Division Two, May 17, 1934.

Appeal from Cape Girardeau Court of Common Pleas. — Hon. O.A. Knehans, Judge.

REVERSED AND REMANDED (with directions).

McKay & Peal for appellants.

Without waiving objections to other points appellants contend that plaintiff wholly failed to offer any proof justifying any relief in equity and we shall confine our brief principally to the point that plaintiff failed to make out any case entitling him to equitable relief. Plaintiff's action is one for rescission in which he seeks to rescind his alleged contract with appellants and the only excuse pleaded or attempted to be proven for such rescission is that appellants promised to assign respondent all of the undivided interest of Millard and Woodrow Redman in the hands of the administrator of Mary C. Redman, deceased, which property was cash in the hands of said administrator. This proof will not sustain an action for rescission. Loan & Investment Co. v. Trust Co., 175 Mo. App. 606; Younger v. Hodge, 211 Mo. 444; Bryan v. Railroad Co., 292 Mo. 535; Shoup v. Tanner Buick Co., 211 Mo. App. 480. If by its allegations the bill is framed upon a certain definite theory, relief must be granted on Cox v. Estes, 68 Mo. 110. Under the maxim of he who comes into equity must come with clean hands, that plaintiff in this case is not entitled to equitable relief for the reason that he comes into equity with unclean hands. Carson v. Woods, 177 S.W. 622; Avery v. Central State Bank, 221 Mo. 71. The maxim operates so as to exclude aid to deny relief to or from conduct which is fraudulent, illegal or unconscionable. Hellman v. Natl. KLS., 198 Mo. App. 308; Fehlig v. Busch, 165 Mo. 144. The contract between plaintiff and defendant guardian and curator as testified to by plaintiff himself constituted a fraud upon both the minor children and the court and plaintiff being a party to such fraud cannot have equitable relief. Plaintiff testified that it was agreed between him and defendant that they would have a claim allowed against the estate of the minors for their board and keep while they lived in the home of their guardian and then said guardian would assign this claim to plaintiff. Plaintiff further testified that Peterson told him he had never made a claim against his wards estate for board and lodging, and that being true no claim could have been allowed said guardian and curator for the board and lodging of his minor wards. State to use v. Slevins, 93 Mo. 253.

W.G. Gray and McKay & McKay for respondent.

(1) The judgment of the trial court is for the right party and should not be disturbed for the following reasons: (a) Cancellation of the deed and contract of sale and a direction to return the money paid under the agreement of sale so as to place the parties in the same condition as they were originally is a proper remedy and courts of equity possess the power to perform such judgments. 9 C.J. 1170, sec. 26; Jenkins v. Ins. Co., 79 Mo. App. 55; Roberts v. Central Lead Co., 95 Mo. App. 581; Annabell v. Land Co., 144 Mo. App. 303; Hayes v. Sheffield Ice Co., 168 S.W. 306; Fitzkee v. Haiflin, 187 Ill. App. 514; Robertson v. Owensboro Sav. Bank, 150 Ky. 50, 149 S.W. 1144; Brady v. Elliott, 146 N.C. 587; Beeson v. Smith, 149 N.C. 142. (b) If a case of fraud be established a court of equity will set aside all transactions founded upon it by whatever machinery they may have been effected and notwithstanding any contrivance by which it may have been attempted to protect them these principles have become axioms of equity jurisprudence. 9 C.J. 1171, sec. 26; Wampler v. Wampler, 71 Va. 454. (2) Courts of equity will in a proper case, declare a rescission of a contract for a violation of the covenants therein contained, because it would be against conscience to permit, one party to violate the contract on his part and still hold the other party to compliance with it. Lincoln Trust Co. v. Nathan, 175 Mo. 44; Haydon v. Railroad, 117 Mo. App. 99; Parsons v. Kelso, 141 Mo. App. 374. (3) In the action at bar a contract of sale was made between the parties, and partly performed, and all the purchase money paid. A court of equity has power to cancel the contract of sale and direct the return of the money paid and put the parties in the same position as when the contract of sale was made. Ramsey v. Thompson Mfg. Co., 116 Mo. 313. (4) Rescission is an equitable remedy applied in exceptional cases where there is failure of the entire consideration of the contract or where there is such radical nonperformance of mutual dependent covenants, going to the very root and life of the contract, as amounts to an abandonment of the contract and releases the other party to further recognize its obligation. Hayden v. Railroad, 222 Mo. 126. (5) Equity does not require the same decree in all cases. It has a variety of remedies and is capable of being adjusted to the circumstances of each case. Under this principle of law the decree in this case is valid. Paquin v. Milliken, 163 Mo. 79. (6) The doctrine announced by the appellate courts to the effect that "A misrepresentation, to be actionable as a fraud, must be with reference to existing facts," does not apply in this cause because the misrepresentation alleged herein was as to existing facts: to-wit: That the guardian and curator would assign and convey by proper conveyance the personal property, after the guardian's deed was made and approved by the probate court and delivered. This he failed to do, and his failure gave him an advantage, in that he received the whole purchase price, and only parted with title to the real property, retaining title to the personal property after he had sold the same and received the purchase price. Loan & Investment Co. v. Trust Co., 175 Mo. App. 646; Younger v. Hoge, 211 Mo. 444; Byran v. Railroad Co., 292 Mo. 535; Shoup v. Tanner-Buick Co., 211 Mo. App. 480. (7) Filing an action and going to trial on the petition waives all objections except the objection to the jurisdiction over the subject matter of the action, and the objection that the petition does not state facts sufficient to constitute a cause of action. Sec. 774, R.S. 1929; Jones v. Steel, 36 Mo. 324; Elfrank v. Seiler, 54 Mo. 134; Paddock v. Somes, 102 Mo. 226; Temple Co. v. Young, 179 Mo. App. 278. An objection to a petition in equity on the ground that plaintiff has an adequate and complete remedy at law, is waived unless advantage is taken by demurrer or in the answer. Neither of which was done in the case at bar, and the same is waived. Planett Co. v. Ry. Co., 115 Mo. 613; McKee v. Allen, 204 Mo. 674.

LEEDY, J.

This is a suit in equity, originating in the Circuit Court of Dunklin County, whereby plaintiff seeks to rescind an alleged contract entered into between himself and defendant guardian and curator, and to set aside and cancel a guardian's deed from the latter to the former, conveying the undivided two-fifths interest of his wards in eighty acres of real estate in said county, which was executed and delivered in pursuance of the aforesaid contract. Upon a trial in the Cape Girardeau Court of Common Pleas, to which the cause was awarded on change of venue, a decree in favor of plaintiff was entered and defendants have appealed.

The pertinent allegations of plaintiff's bill are (summarized) as follows: After alleging the derivation of the undivided two-fifths interest of the minor defendants in the real estate in controversy as by inheritance from their deceased parents, J.S. Redman and Mary E. Redman, the bill avers that said minors also owned an undivided two-fifths interest "in whatever personal property remains undisposed of in the hands of C.C. Redman, administrator of the estate of both J.S. Redman and Mary E. Redman ... the amount of which cannot be set out herein because the amount is unknown to this plaintiff." That in 1929, and prior to the negotiations which gave rise to this suit, plaintiff became the owner of the remaining three-fifths interest in the real estate and personal property in controversy by purchase from the brothers and sisters of the minor defendants; that plaintiff "also purchased from L.P. Peterson, Guardian and Curator of Millard Redman and Woodrow Redman, all of the undivided two-fifths interest in and to the above-described real estate belonging to them as well as the two-fifths undivided interest in and to all personal property undisposed of in the hands of C.C. Redman, Administrator of the estate of both J.S. Redman and Mary E. Redman, deceased, and agreed to give therefor as full consideration, the sum of $1200.00; that said L.P. Peterson, guardian as aforesaid, agreed to execute, to the Probate Court, a proper Guardian's deed conveying all of the undivided two-fifths interest of Millard Redman and Woodrow Redman in and to the above-described real estate to this plaintiff, and also agreed to assign to plaintiff the undivided two-fifths interest of Millard Redman and Woodrow Redman of, in and to whatever personal property remained undisposed of in the hands of C.C. Redman, Administrator as aforesaid, and to execute whatever papers were necessary to convey the said undivided two-fifths interest as aforesaid to the plaintiff for the consideration of the said sum of $1200.00, which said sum has been duly paid to said L.P. Peterson, Guardian and Curator of Millard Redman and Woodrow Redman as aforesaid."

The bill then alleges the execution and delivery of a guardian's deed conveying to the plaintiff the two-fifths interest of the minor defendants in and to the real estate in controversy, and that defendant Peterson, guardian and curator, "failed and refused, and now still fails and refuses to keep and perform said agreement, to assign to this plaintiff the two-fifths undivided interest of,...