Kelley v. Absher

• Decision Date: 19 April 1948
• Docket Number: No. 6740.,6740.
• Citation: 210 S.W.2d 531
• Parties: KELLEY et al. v. ABSHER.
• Court: Missouri Court of Appeals

210 S.W.2d 531

KELLEY et al. v. ABSHER.

No. 6740.

Springfield Court of Appeals. Missouri.

April 19, 1948.

Appeal from Circuit Court, Texas County; Claude E. Curtis, Judge.

"Not to be published in State Reports".

Action by J. E. Kelley and another against Smith Absher, Jr., to recover damages for alleged false representation as to boundaries of land sold by defendant to plaintiffs. From a judgment for plaintiffs, the defendant appeals.

Reversed and remanded.

Charles A. Moon, of Springfield, for appellant.

Collier & Huffman, Frank Collier and M. J. Huffman, all of Mountain Grove, for respondents.

VANDEVENTER, Judge.

This case was filed in Wright County and went to Texas County on a change of venue. The amended petition, (which was very general in its terms but apparently not attacked for that reason) upon which the cause was tried, alleged that the plaintiffs, J. E. Kelley and Ola Kelley (respondents here), purchased certain real estate, describing it, from the defendant, Smith Absher, Jr. (appellant here), which was located in Wright County. That the defendant desiring to sell certain land to plaintiffs did, "with intent to deceive and defraud plaintiffs, represent to plaintiffs the boundaries of said land to be as pointed out to plaintiff, J. E. Kelley, at the time of inspection of said land"; that relying on these representations and assurances made by defendant, plaintiffs purchased said real estate and on the 29th day of July, "the defendant made, executed and delivered to plaintiffs a deed purporting to convey all of said real estate and the land contained within the boundaries as same was represented to plaintiffs." That they received the deed, paid defendant $4,000.00, the purchase price, and caused the deed to be recorded in Wright County. That the defendant well knew the representations as to the boundaries were false and that the land described in the deed did not contain all the land within the boundaries as represented by the defendant.

That when plaintiffs learned that the deed did not contain the true and correct description of the land as represented by defendant, they demanded that defendant execute and deliver to them a deed which would fully, completely and correctly describe the real estate; that thereafter defendant did make a deed but plaintiffs refused to accept it on the ground that the description was not complete and correct, that by reason of the fact, that the plaintiffs did not receive a deed to the land they had contracted to purchase, they had been damaged in the sum of $1,000.00.

The material part of the amended answer denied any fraud or deceit on the part of defendant, admitted that there was a mistake in certain descriptions of the real estate and asserted that defendant had executed a deed, correcting the errors and offered it to plaintiffs and that he was still ready to convey to plaintiffs the real estate, correctly described and tendered the deed into court with his answer.

Upon these pleadings the case went to trial. Defendant's answer, which admitted error in the description of the real estate in the original deed, contains three descriptions, all different and none of them definite, however, they all referred to the northeast corner of the farm but when the evidence was introduced on the part of plaintiff, it showed there was no controversy about that portion of the farm but that the controversy was about the west line. The record is voluminous but, as we view it, a great part of it has nothing to do with the real issues in this case. A Jury was waived and the case was tried before the court, which found for the plaintiffs and assessed their damage at $500.00. No findings of fact or conclusions of law were asked or given. The main objection on appeal is that the evidence was insufficient to sustain the judgment. For that reason we will state, somewhat in detail, what we consider the material evidence in the cause.

Plaintiff, J. E. Kelley, testified that on the 27th or 28th of July, 1946, he went to the farm in question owned by the defendant, and occupied by his tenant, for the purpose of inspecting, with the intention to purchase it. That Bill Hill accompanied him, that he was met by the defendant and Carter Reed, the tenant on the land. That they went from the house down to the gate near a rock fence about a quarter of a mile from the house; that this rock fence was along the east and south side of a stream, the meanderings of which approached the land from the west, turning in a northeasterly direction and then running almost directly east. (How much of this stream and rock fence were on the land purchased by plaintiffs, and described on the deed, the testimony does not show.) At the south end of this rock fence was a gate. While standing at this point, the defendant pointed north over the rock fence and said that was the line. That later one Jim Walker told plaintiff, J. E. Kelley, that he, Walker, knew "about" where the west line was; that it was somewhere east of part of the rock fence, but crossed it; Kelley did not know where the line was but Jim Walker stretched a wire across the field, and the wire crossed the rock fence and was 20 or 25 steps east of the south end thereof.

Plaintiff did not know at the time of the purchase where the west line was neither did he know at the time of testifying. He had never had it surveyed and all the information he had concerning it came from Jim Walker, who had stretched a wire from points, which he claimed were the north and south corners. Plaintiff did not know who, if anyone, located the corners for Walker. He testified that defendant showed him where the north corner was and Jim Walker showed him where the south corner was.

Jim Walker, the man from whom plaintiff Kelley got such information as he had as to where the line was, testified, as a witness for plaintiff, that he went over to the farm in question about the 15th day of September, 1946 to meet Kelley. That he owned the land west of and adjoining the land in controversy, that he had purchased it from Albert Absher, who lived in the State of Oregon, but that Albert's brother Everett, conducted the transaction as Albert's agent. That during the transaction, Everett showed him what he claimed to be the north and south corners of the forty in controversy. The witness further testified:

"Q. Now, did you stretch a wire between the north corner and the south corner of this east tract that you got from Absher between you and the land that Kelley got from Smith Absher? A. Yes, I did. I stretched a barb to see where the land was. It looked like it was such a job to stake it out, the brush and the hills and so on, I just got a wire and tacked it on the south corner and stretched it across to the north corner to tell where the line was. That is pretty well the line where the wire went.

* * * * * *

"Q. And then what did you and Mr. Kelley do? A. Well, we looked about the line and tried to stake out about the line. As I stated a while ago, the brush was thick and the hills and so it was a poor job of staking out the line, and after that is when we stretched the wire, we couldn't have no luck staking out the line so I went and stretched the wire to see where the lines were.

* * * * * *

"Q. Now, then, when you were over there with the defendant and Kelley and Wes. Butcher, none of you knew where the line was between the two tracts of land, did you? A. Pardon me? Q. None of the four of you knew where the line was between the two tracts of land? A. No, I didn't know where the line was, only Everett showed me the corners and naturally — "Q. Everett Absher? A. Everett Absher. Naturally, you would have a guess about where the line, if you knew where the corners was.

* * * * * *

"Q. Well, I say, the four of you were talking about that proposition of the line? A. Yes, sir; naturally.

"Q. And there wasn't any one of the four that seemed to know, isn't that right? A. Just had a guess coming, that's all there was to it.

"Q. You were just all four trying to guess about it, isn't that right? A. That's right.

"Q. Now you haven't had that line surveyed? A. All I know is, I stretched that wire from corner to corner where they told me the corner was, where Everett Absher told me the corner was, that's all I know."

Everett Absher did not testify in the case.

Eli Finch testified that he was a man of experience in buying and selling real estate in Wright and Douglas Counties and that within a short time prior to the trial, he had viewed the farm in controversy. That he went down to the west side near the rock fence and saw a wire that was stretched from north to south about 35 feet east of the south end of the rock fence where a gate was located; that he stepped the distance from the gate along the meanderings of the fence to the place where the wire crossed it and it was 165 steps. He estimated the value of the farm, if it included the rock fence and the land lying east of it and west of the wire, at $4,000.00. That if it did not include the land between the wire and the fence, his judgment was that it was worth only $3,000.00. He estimated that there were three or four acres between the wire and the rock fence and that it was of a reasonable value of $100.00 per acre and that the rock fence was worth something to keep the water back. He did not know where the west line was and did not know whether the wire was on the line.

Bert Morgan testified that he lived at Norwood, for several years had been engaged in selling farms in Wright and Douglas Counties, was acquainted with farm values, that he had looked over the premises in controversy and had seen the rock fence; that apparently the rock fence was built to protect the land east of it from an overflow from the creek during high water. He also testified that the farm was worth $4,000.00 if the rock wall was the west boundary but worth only $3,000.00 if the wire he saw stretched north and south was the west boundary....