Leslie v. Carter

• Decision Date: 29 February 1912
• Parties: MARY E. LESLIE v. S. E. CARTER and CHARLES A. BYRD, Appellants
• Court: Missouri Supreme Court

144 S.W. 797

240 Mo. 552

MARY E. LESLIE v. S. E. CARTER and CHARLES A. BYRD, Appellants

Supreme Court of Missouri, First Division

February 29, 1912

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Reversed and remanded (with directions).

George Hubbert and Frank L. Forlow for appellants.

(1) The plaintiff's laches, and especially with her warning and information from others adverse to defendant's good faith towards her, for at least two years, according to her own testimony, about a matter so open to inquiry; and her express acquiescence in the conveyance, as shown by her conduct and letters, from time to time, for nearly two and one-half years before suit, constitute an effectual bar against her as to any remedy, under the well established rules of equity. Kerr on Frauds and Mistake, 299, 305; Klive v. Vogel, 90 Mo. 247; State ex rel. v. West, 68 Mo. 229; Dexter v. McDonald, 196 Mo. 399. The effort to excuse the plaintiff's laches by alleged fraud and continuing confidence cannot avail. But it shows plaintiff's conscious need of some excuse. Callan v Callan, 175 Mo. 346; Jones v. Rush, 156 Mo 373; Newman v. Oberle, 90 Mo. 666; Powell v Adams, 98 Mo. 598. (2) The evidence does not show any material fraudulent misrepresentation of fact by defendant Carter, believed, relied and acted on, by plaintiff, to her injury, under circumstances excusing her from exercising her own judgment with reasonable prudence; without which she can have no standing in equity, nor claim for the relief sought by her. Hitchcock v. Baughman, 36 Mo.App. 222; Lewis v. Land Co., 124 Mo. 672; Nations v. Pulse, 175 Mo. 86; 18 Ency. Pl. and Pr., 853; Lumber Co. v. Crommer, 202 Mo. 521; Wood v. Evans, 43 Mo.App. 230; Parker v. Marquis, 64 Mo. 38; Estes v. Desnoyers, 155 Mo. 587; Smith v. Dye, 88 Mo. 581. (3) Without proof of a relation of trust and confidence in fact, by which the will of plaintiff was subjected to the domination of defendant Carter; and also that he deceitfully availed himself of the relation and exercised an undue influence upon her mind; also that he thereby induced her to sell to him to her damage, when she would not have done so otherwise -- without each and all of these things being proved, the plaintiff should not have prevailed below; and yet such proof was not made. Peckham v. Lalone, 164 U.S. 255; Studebaker v. Cofeld, 159 Mo. 612; 2 Beach on Contracts, sec. 1391; Dickson v. Kempinsky, 96 Mo. 252; Cutts v. Young, 147 Mo. 587. (4) The lugging into this case of alleged frauds against Laura Miller and William Carter and George Carter, must fail of the purpose designed. The George Carter case has been submitted and is under the consideration of this court. The Laura Miller case has been amicably settled. The William Carter case is pending in this court on appeal by him and not by defendants. Each case must stand upon its own merits. Collateral transactions with strangers to the case on trial are so clearly irrelevant that they should never have been offered, and cannot be considered. Jones on Evidence (2 Ed.), sec. 140; Edwards v. Warner, 35 Conn. 517; Williams v. Robbins, 15 Gray 590. Equity is always conditioned that defendant's rights are to be conserved and protected; and one of the means of so doing is to require restoration of the status quo or its equivalent, failure to do which will preclude cancellation of the instrument in which the rights of all parties are tied up; for even an old wrong cannot, in the contemplation of equity, be righted by a new one. Pom. Eq. Juris., sec. 915; 18 Am. and Eng. Ency. Law, 858-60; Bradshaw v. Yates, 67 Mo. 221; McClure v. Lewis, 72 Mo. 323. (5) Compensation should at least have been allowed Byrd, proportionately for his expenditure of time, labor and money, and the improvement of the premises, by which their value and products were enhanced to the benefit of all owners; for owners in common may improve with the full assurance of being protected in so doing, to the extent of a contribution by each owner of his fair proportion of the enhanced value so added to the premises and products. Andrews v. Connoly, 145 F. 43; Freeman on Cotenancy, sec. 510; Hall v. Piddock, 21 N.J.Eq. 314; Coberly v. Coberly, 189 Mo. 1; Broyles v. Waddel, 58 Tenn. 32. (6) Byrd should have had six per centum annual interest, for the use of the $ 5000 for the time she had it, if he stand decreed to account for the rents, issues and profits of the land for that time. No less could make him whole under her tender of equities by her petition. Smith v. Townsend, 92 Am. Dec. (Md.) 637; McClure v. Lewis, 72 Mo. 314; Thornton v. Ogden (N. J. Eq.), 7 A. 619; Andrews v. Connoly, 145 F. 43. (7) The change of the conditions of the property, the acquirement by strangers of rights therein, the development of mines unopened before, all during the time passing after the making of the deed and the acquisition of the mining and speculative property by Byrd and others through him from Carter -- these things are substantial objections in equity to the attempt to administer justice so long after the fact, upon charges of deceit therein. Spurlock v. Burnett, 170 Mo. 372; Phillips v. Hardeberg, 181 Mo. 46; 18 Am. and Eng. Ency. Law 102, 103; Hatcher's Case, 139 Mo. 614; Bliss v. Pritchard, 67 Mo. 181.

W. M. Robinson and Thomas & Hackney for respondents.

(1) The defendant Carter having been the trusted agent of his sister in the management of her one-fifth interest in the property in controversy ever since the death of her brother, A. G. Carter, in 1903, having in charge her interest in said property, collecting her rents and royalties and paying the taxes, and being her agent for the sale of the property, he is not permitted to enter into any transaction with her on his own behalf respecting the subject-matter of the agency unless he acts with entire good faith and without any undue influence or imposition and makes a full disclosure of all of the facts and circumstances attending the transaction. 31 Ency. Pl. and Pr., 1442; 2 Pom. Eq. Jur. (2 Ed.), sec. 955-956; Kerr on Fraud and Mistake, 173; Bartholomew v. Leach, 7 Watts (Pa.), 472; Colbert v. Shepherd, 89 Va. 401; 1 Am. and Eng. Ency. Law (2 Ed.), 1071; Ralston v. Turpin, 129 U.S. 675; 1 Story's Eq. Jur., par. 315; Harris v. Tremenhere, 15 Ves. 34; Wadsworth v. Adams, 138 U.S. 380; Gay v. Gillian, 92 Mo. 250; Dausman v. Rankin, 189 Mo. 703; Ross v. Payson, 43 N.E. 399; Hall v. Knappenberger, 97 Mo. 509; Reed v. Carroll, 82 Mo.App. 108. (2) The deed from the plaintiff to defendant Carter was obtained by him by fraudulent concealment of the conditions of the property, and its value, and by undue influence exerted over the plaintiff. Reed v. Carroll, 82 Mo. 108; Morley v. Harrah, 167 Mo. 74; Derby v. Donehoo, 208 Mo. 699; Evans v. Evans, 196 Mo. 19; Elmore v. Johnson, 153 Ill. 513; Hallwood v. Mansfield, 59 Ill. 496; Laclede Bank v. Keeler, 109 Ill. 385. (3) The evidence clearly shows that defendant Byrd was not an innocent purchaser and that whatever conveyances were made to him he received the same to hold for his codefendant. A purchaser on credit is not an innocent purchaser. And the fact that the pretended purchaser may have given the vendor his note therefor, does not render him an innocent purchaser, unless the note has been paid before notice or unless it has been negotiated and is in the hands of an innocent holder. Arnholt v. Hartwig, 73 Mo. 484; Young v. Keeler, 94 Mo. 590; Cheek v. Waldron, 39 Mo.App. 25; Wetmore v. Woods, 62 Mo.App. 265. The law charged Byrd with notice that a deed procured by Carter while the agent of his sister for the sale of the property for less than its value was a fraud on the plaintiff and he was put on inquiry, even if he had paid a full consideration, as to her rights in the property. Plow Co. v. Sullivan, 158 Mo. 440; Bank v. Tobacco Co., 155 Mo. 602; Eck v. Hatcher, 58 Mo. 235; Leavitt v. LaForce, 71 Mo. 356. (4) Plaintiff was guilty of no laches in the bringing of her suit. She was not called on to take action until she had notice of the wrong committed against her. Real Est. Co. v. Lindell, 142 Mo. 61; Howell v. Jump, 140 Mo. 440; Napton v. Leaton, 71 Mo. 358; Davis v. Forman, 229 Mo. 27; 2 Pomeroy's Eq. Jur., 917. Relationship of the parties is entitled to great weight when the question is one of laches. Wright v. Wright, 37 Mich. 56; Case v. Case, 26 Mich. 483; Van Buskirk v. Van Buskirk, 148 Ill. 9. There is no evidence of any acquiescence of the plaintiff and no delay of hers induced the defendants or either of them to change their position. Newman v. Newman, 152 Mo. 515; 12 Am. and Eng. Ency. Law (2 Ed.), 544; Ross v. Payson, 43 N.E. 399; Walther v. Null, 233 Mo. 123.

OPINION

VALLIANT, J.

This is a suit in equity to annul a deed made by plaintiff conveying her one-fifth interest in 538 acres of land in Jasper county to defendant Carter, on the ground that it was obtained by fraud, and to annul also a deed from Carter conveying the same interest to defendant Byrd, on the ground that it was without consideration and made to further the fraudulent purpose by which defendant Carter obtained the deed from plaintiff. Plaintiff tenders back the purchase money paid her by Carter and prays an account of rents and profits. Defendant Carter's answer was a general denial; defendant Byrd's answer was a general denial, and a statement of facts going to show that he was an innocent purchaser for value, and that plaintiff was guilty of laches. The finding and judgment were for the plaintiff on all the issues, and the defendants appealed.

The 538 acres of land were owned by Washington G. Carter, who died in 1874, leaving his widow and six children his heirs, four sons, George, S. E., A. G., and William, and two daughters Mary, the plaintiff, and...