Key v. Jennings

• Decision Date: 31 October 1877
• Citation: Key v. Jennings, 66 Mo. 356 (Mo. 1877)
• Parties: KEY v. JENNINGS et al., Appellants.
• Court: Missouri Supreme Court

66 Mo. 356

KEY

v.JENNINGS et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Warren Circuit Court.--HON. W. W. EDWARDS, Judge.

Wm. A. Alexander and Lackland & Broadhead for appellants.

1.Fraud is never presumed; it must be proved by him who asserts it.1 Story'sEq., Sec. 190.There is no particle of evidence of either actual or constructive fraud

2.A manifest distinction to be traced through all the cases between executory contracts and those which have been executed.In the latter class, where a deed has been made, and possession given, there must be an eviction at law under paramount title, before the court of chancery will interfere, and the vendor, selling in good faith, is not responsible for his title beyond his covenants.Barton v. Rector,7 Mo. 528;Edington v. Nix,49 Mo. 134.

3.The settled doctrine of this court is, that where a party buys a tract of land, receives a deed with a warranty, and goes into possession, he cannot defend against a note given for the purchase money upon the mere ground of speculative defects of title, unless there have been false and fraudulent representations made by him in regard to this title.Mitchell v. McMullen,59 Mo. 256.And there must be the clearest proof of the fraudulent representations, and that the contract was founded on them.Bryan v. Hitchcock,43 Mo. 531;Langdon v. Green,49 Mo. 363, 368;Holland v. Anderson,38 Mo. 59.

4.To avoid a sale for false representations, they must not only be false, and made with the intent to deceive and mislead, but the purchaser must have relied on them and been deceived and damaged in consequence thereof.Holland v. Anderson,38 Mo. 55;Morse v. Rathbun,49 Mo. 91;Cooley v. Rankin,11 Mo. 645;Langdon v. Green,49 Mo. 363;Bryan v. Hitchcock,43 Mo. 527.

5.If there is no fraud, and the vendee is in the undisturbed possession, defective title is no ground of relief.The defective title may ripen by time.There must be an eviction, or total failure of title, or such failure as will defeat the objects and purposes of the vendee.Cooley v. Rankin,11 Mo. 645;Connor v. Eddy,25 Mo. 72;Mitchell v. McMullen,59 Mo. 252;Barton's Admr. v. Rector,7 Mo. 528;Edington v. Nix,49 Mo. 134.

6.The two forties are not essential in any way to the value of the farm, were never made use of by any of the owners of the farm, and are on the outskirts of the tract.At most the failure of title thereto, can only be a breach of the warranty pro tanto, for which redress can be sought in a suit on the deed.Merritt's estate is amply solvent.Hart v. Handlin,43 Mo. 175.

Wagner, Dyer & Emmons for respondent.

1.There was no attempt to offer a good title to the land.Plaintiff was not bound to accept a quit-claim, or rely upon the statute of limitations to any of the land.He was entitled to an indefeasible title.Although there may have been no fraudulent intent on the part of Merritt in showing the wrong boundaries, and representing the water and timber as being on the land sold, still, plaintiff, on offering to deliver up the premises, as he does, is entitled to rescission on the ground of mistake.This is not an action at law seeking to recover damages, but it is a bill asking equitable relief, where both parties may be restored to their former position.The distinction between the two classes of cases was pointed out in Dunn v. White,63 Mo. 184.A substantial error between the parties, concerning the subject-matter of the contract destroys the consent necessary to its validity.2 KentCom., 471; and this principle has frequently been applied in equity in the rescission of executed contracts for the sale of real estate.1 Story'sEq., § 142;Hitchcock v. Giddings,4 Price 135;Mead v. Johnson,3 Conn. 597;Bradley v. Chase,22 Me. 511;Davis v. Heard,44 Miss. 51;Armstead v. Hundley, 7. Gratt. 64;Smith v. Mitchell,6 Ga. 458;Dale v. Rosevelt,5 Johns. Ch. 182;Champlin v. Laytin,6 Paige 197;Daniel v. Mitchell,1 Story 172;Mason v. Crosby, 1 Woodb. &Min. 352;Glasscock v. Minor,11 Mo. 655;Rawlins v. Wickham, 3 D. &J. 317;Hough v. Richardson,3 Story 659;Doggett v. Emmerson,3 Story 733;Kerr on Fraud and Mistake, p. 60, Am. note;Leyland v. Illingworth,2 D. F. & J. 253;Pitts v. Cottingham, 9 Porter 675;Lewis v. McLemore,10 Yerg. 206;Barton v. Rector,7 Mo. 528;Duke of Norfolk v. Wortly,1 Camp. 337;McFerron v. Taylor,3 Cranch 270.

NORTON, J.

This suit was instituted in 1872 in the circuit court of Warren county, to enjoin and restrain defendant, Jennings, as trustee, from selling certain lands hereinafter described, and also to rescind a contract whereby one Abel S. Merritt sold and conveyed to Thomas Key, the plaintiff, and Nicholas Key, the lands, the sale of which was sought to be enjoined.

The petition alleges that in 1867plaintiff desired to purchase 1,200 or more acres of land, lying in a body, well watered and suitable for the purposes of a stock farm; that A. S. Merritt represented to him that he was the owner of such a farm in Warren county, containing 1,269 acres, that his title thereto was clear and perfect; that Merritt pointed out the same to plaintiff, and showed him the boundaries of the following land: 560 acres, being all of section 6, except the ne qr. of the ne qr. and the se qr. of the ne qr., in township 47, range 2 west; 100 acres, being the south half of the sw qr., and 40 acres, being the sw qr. of the se qr. of section 31, township 48, range 2 west; 80 acres, being the south half of the se qr.; 40 acres, being the nw qr. of the se qr.; 80 acres, being the east half of the sw qr. of section 36, township 48, range 3 west; 169 acres, being the ne qr. of section 1, township 47, range 3 west; 40 acres, being the sw qr. of the sw qr. of section 5, township 47, range 2; 80 acres, being the east half of the sw qr. of section 5, township 47, range 2 west, and 80 acres, being the east half of the nw qr. of section 8, township 47, range 2 west, containing in all 1,269 acres, more or less; that relying on the representations of said Merritt as to the location and contiguity of said land, and that there was upon it a never-failing stream of water, and his title thereto perfect, plaintiff, on the 7th of June, 1867, was induced to purchase the land at the price of $25,000--$1,000 of which was paid at the time, and the remainder to be paid as follows: $8,000 on the 1st of January, 1868; $8,000 in two years from June 7th, 1867, and $8,000 in four years, with interest at 6 per cent.; that, on the 3rd of July, 1867, the said Merritt and wife executed and delivered to plaintiff a deed of general warranty for what plaintiff supposed to be the above described land, and that plaintiff, to secure the notes given for the deferred payments, executed and delivered to defendant Jennings, as trustee, a deed of trust on the lands thus conveyed by Merritt; that 560 acres of the land described as being in section 6, T. 47, R. 2 west, is by said deed located in township 48, range 2 west, which places it six miles north of the balance of the tract, and that the lands conveyed by the deed do not lie in a body, but are separate and far apart, thus defeating the object of plaintiff in buying the same as a stock farm.

It is further alleged that Merritt was not the owner of the land in section 6, township 47, range 2, which he showed plaintiff and agreed to convey; that he never had title thereto and could not convey the same.It is also alleged that Merritt never had title to the north half of the sw qr. of the se qr. of section 31, township 48, range 2, nor to the south half of the sw qr. of section 5, and ne qr. of the sw qr. of section 5, township 47, range 2, nor to the south half of the se qr. of section 36, township 48, range 3 west, making in the aggregate 800 of the said 1,269 acres, to which Merritt had no title.

It is also alleged that said land was encumbered by mortgages, and that plaintiff had paid in the aggregate the sum of $13,179.38 on the notes given by him to Merritt; that plaintiff, by reason of the misrepresentations and fraud practiced by Merritt, had been deceived as to the location and title to said lands; that the never-failing stream of water, which was the controlling inducement for the purchase of said farm, is not located on any land to which Merritt had title, either in law or equity, and that such failure of title defeats the whole object of plaintiff's purchase of said land for a stock farm.It is further alleged that Jennings, the trustee, was about to sell the lands for the unpaid purchase money; that Merritt had since died, and after making the administratrix of his estate a party, it prays for an injunction restraining the trustee from enforcing a sale under the deed of trust; that the contract be rescinded, the notes given up and canceled, and for an account, &c.

The defendants, in their answer, deny each allegation in the petition.They deny that the 560 acres was described in Merritt's deed to plaintiff as in township 48, range 2, and aver that it was in township 47, range 2, and is part of the 1,269 acres sold to plaintiff; that Merritt was the owner in fee of it, and never owned, or pretended to own any land in township 48, range 2, and if it is so described in said deed, it is a misdescription and did not mislead plaintiff.It is further averred that the land sold to plaintiff was purchased by Merritt in 1863, of the assignees of Warren Stewart, and was known and sold to him as the Warren Stewart farm; that prior to said sale, said tract of 1269 acres (of which the said 560 acres was a part) had been owned, occupied and possessed by Stewart as a stock farm, and as his own property, for a period of not less than ten years, and that if, in the deed of said assignees to Merritt, there is a failure to describe the said 560 acres as being in township 47, range 2, it is a mere clerical error; that said Stewart never owned 560 acres of like quality or description in...