Keltner v. Harris

• Decision Date: 21 June 1917
• Docket Number: No. 18576.,18576.
• Parties: KELTNER v. HARRIS.
• Court: Missouri Supreme Court

196 S.W. 1

KELTNER v. HARRIS.

No. 18576.

Supreme Court of Missouri, Division No. 1.

June 21, 1917.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by W. P. Keltner against E. A. Harris. Decree for plaintiff, motion for new trial and in arrest of judgment overruled, and defendant appeals. Affirmed and remanded.

On May 9, 1913, plaintiff filed in the circuit court of Greene county, Mo., his bill in equity to set aside, upon the alleged ground of fraud, a deed from himself and wife to H. H. Harris, dated December 18, 1911, and recorded in Book 295 at page 241 in the office of the recorder of deeds in said county, wherein he conveyed to said H. H. Harris lot 21 and 11¼ feet off of the east side of lot 20 in block 4 of J. M. Richardson's Second addition to the city of Springfield, Mo.; and also to set aside, upon the alleged ground of fraud, a deed from said H. H. Harris, dated December 19, 1911, to defendant, E. A. Harris, conveying the real estate aforesaid. Defendant, E. A. Harris, answered, and admitted therein that he bought from H. H. Harris the lot or tract of land described in plaintiff's petition. He denies each and every other allegation in petition.

It appears from the evidence that plaintiff is a white citizen of Springfield, Mo.; that he was a traveling salesman and had lived in said city for about 14 years before the institution of this suit. Plaintiff owned a home on Center street in said city, and his family consisted of a wife and three children. The real estate in controversy adjoins plaintiff's home place. He had contracted to buy the same from Earl Hamel prior to November 22, 1911. He paid Hamel $100 and assumed a deed of trust on said property for $500. On account of some requirements in regard to the title, the deal was not consummated until December 18, 1911, although negotiations with the owner had progressed to the point where respondent knew he could purchase the lot from Hamel for the above consideration. The Ozark Land Company at that time was composed of Blain Berry and Gus Berry, his brother. The company had in its employ one H. H. Harris, who was a single man. It appears from the evidence that on or about November 22, 1911, plaintiff requested Blain Berry to find him a purchaser for the Hamel property; that after this conversation, and on the same day, Blain Berry prepared a contract for sale of said real estate to said H. H. Harris. When the contract of sale was presented to plaintiff for his signature, the latter then for the first time disclosed the fact that the title was not in him, and changed the contract by interlineation, so as to provide that in case of failure on the part of plaintiff to procure the title he was not to be bound by the contract. Afterwards, on December 18, 1911, plaintiff filed for record a deed to himself for said land, dated September 26, 1911, acknowledged December 4, 1911. On the same date (December 18, 1911), plaintiff and wife conveyed said real estate to said H. H. Harris, and on the following day, December 19, 1911, said H. H. Harris conveyed the same to defendant. The latter was an educated, respectable colored doctor in said city; was single, contemplated marriage, and bought the property in controversy with the view of building a home thereon. He had been living in said city for a number of years, and had always borne a good character.

The evidence tends to show that prior to November 22, 1911, the defendant had negotiated for the purchase of a lot 100 feet east of plaintiff's residence, and that this negotiation ended when it was discovered by the agent of the owner that defendant was a colored man. Defendant learned from the agent that the owner of the lot would not sell to him on account of his color. Plaintiff and other residents of the immediate neighborhood protested to the above agent against the sale of said lot to a colored man. The evidence shows that prior to November 22, 1911, defendant had requested the Ozark Land Company to purchase a lot for him; that some attempt was made by the company or its employés to find him a lot; that he had been shown a lot by said company in the southern part of said city, but some distance from the property in controversy. The defendant obtained a deed to said property from H. H. Harris, through the land company aforesaid, and, at the time of receiving same, knew that plaintiff and other residents in the immediate neighborhood of said property objected to his buying same on account of his color. The defendant, after acquiring a deed to the property in controversy from H. H. Harris, built a house thereon, made valuable improvements, married, and was living on said property at the time of the trial of this case in the court below. It appears from the evidence that on May 2, 1913, the defendant executed a deed of trust for $2,000 on the property in controversy, which was recorded in said recorder's office on May 13, 1913. The proceeds of this loan, together with $400 in cash paid by defendant, was held by the State Savings Trust Company, of said city, and by said company paid out in the erection of a two-story frame residence building now on said property.

This action was commenced on May 9, 1913, and lis pendens filed on the same day in the office of the recorder of deeds of Greene county, Mo. At the time of the filing of said petition and lis pendens, the proceeds of said loan, together with $400 in cash paid by defendant to said trust company, was in the hands of its officers, who had at that time entered into a contract for the erection of the residence on said property,...