McGhee v. Bell

• Decision Date: 12 November 1902
• Citation: 170 Mo. 121,70 S.W. 493
• Parties: McGHEE et al. v. BELL et al.
• Court: Missouri Supreme Court

70 S.W. 493

170 Mo. 121

McGHEE et al. v. BELL et al.

Supreme Court of Missouri.

November 12, 1902.

VENDOR AND PURCHASER — MISREPRESENTATIONS OF QUANTITY — PURCHASER'S REMEDY — EQUITABLE RELIEF — CREDIT FOR DEFICIENCY.

1. Grantees were induced to purchase land represented by the grantor, to contain at least 80 acres, when in fact it only contained 61 acres, and executed a note for the balance, secured by a deed of trust. The grantor fraudulently pointed out the boundaries of the land, and stated that a certain fence was on the land, when in fact it was not, and the grantees relied on the representations. The deed to the grantor described the land as "fifty acres, more or less," and the grantor directed the justice who wrote the deed to the grantees to insert "80 acres." The grantees went into possession, and greatly improved the land, before they discovered the fraud. Held, that the grantees were entitled to elect to retain the land the grantor was able to give them, and to demand an abatement of the price for so much as the quantity fell short of the amount represented, together with the cancellation of the deed of trust.

2. The grantor cannot complain of the cancellation of the deed of trust, though a part of the price remained unpaid, where the court decreed a vendor's lien for the balance.

3. A contention that the grantees cannot complain of the fraud, because they had the means to ascertain the true quantity of the land, is without merit.

4. A grantor fraudulently represented that the tract conveyed to the grantees contained at least 80 acres, and nearer 90 or 100 acres, when in fact it only contained 61 acres. There was nothing to show that one part of the tract was more valuable than another, nor was there any evidence as to the value of the land had it contained 80 acres as represented. Held, in a suit by the grantees for equitable relief, that the action of the court in giving a credit to the grantees on the price for the deficiency estimated at the contract price for 80 acres was not prejudicial to the grantor.

Burgess, C. J., dissenting.

In banc. Appeal from circuit court, Benton county; W. S. Jackson, Special Judge.

Suit by William E. McGhee and another against Samuel Bell and another. From a decree for plaintiffs, defendants appeal. Affirmed.

The following is the opinion in division:

GANTT, J.

This is a suit in equity to enjoin the sale of plaintiffs' lands under a certain deed of trust alleged to have been procured by fraud, and for the cancellation of the same, and for general relief. The petition, omitting the caption, is as follows:

"Plaintiffs, for their cause of action against defendants, state: That on the _____ day of March, 1896, they purchased from defendant Samuel Bell a certain tract of land in Benton county, Missouri, described as follows, to wit: `The south part of the northwest fractional quarter of section three (3), in township forty (40), of range twenty-three (23), lying in the following metes and bounds: Commencing at southeast corner of said quarter section, running on the half-mile line north to a point opposite the fence between James Neece and Adam J. Neece, and west with said fence to the slough, and down the slough to Grand river, and up Grand river to James Foster's land, and from thence east to place of beginning, containing eighty acres, more or less.' That at the time of said purchase and conveyance defendant Samuel Bell represented to plaintiffs that said tract contained not less than eighty acres of land. That defendant showed and pointed out the boundary lines of said tracts of land to plaintiffs, and stated to plaintiffs that a certain fence was on said land, and was the property of defendant. That the well on said premises afforded an abundance of water for house use. That plaintiffs had no knowledge of the number of acres contained in said tract, nor as to the area or boundaries thereof. That they were ignorant as to the capacity of said well to afford water for family use, but wholly and entirely relied on the statements and representations made at the time by defendant, and, so relying on the said representations of defendant that said tract did contain eighty or more acres, and that the well was as represented by defendant, plaintiffs were induced to and did purchase said tract of land at the sum and price of six hundred dollars; three hundred and eighty-five dollars of which they paid at the time, and for the two hundred and fifteen dollars balance of the purchase price of said land plaintiffs executed and delivered to defendant Samuel Bell their promissory note, and secured the same by making, executing, acknowledging, and delivering to defendants a deed of trust conveying to defendant James R. Jones, trustee, for the purpose aforesaid, which said deed of trust is dated the 16th of March, 1896, and recorded in the recorders' office of Benton county, at Deed Book sixty-seven, page one hundred and eighty-eight. The plaintiffs say that the tract of land so sold and purchased contained only fifty acres of land; that the lines of boundary as pointed out by defendant includes lands owned by others, and not by defendant, and that said well has absolutely failed to furnish water as represented, and plaintiffs have been compelled to haul water for house use; and that the representations of defendant made to plaintiffs were false and fraudulent, — all of which was well known to defendant at the time, and were made for the purpose of deceiving and defrauding plaintiffs; that plaintiffs discovered the fraud some time after said purchase, and after they had greatly improved and added to the value of said property. Plaintiffs say that they are uneducated, and wholly incompetent to understand or comprehend a description of land by metes and bounds, and that defendant brought to them the deed made, executed, and acknowledged, and told them that said deed contained a description of eighty or more acres of land, and that they accepted said deed and paid said sum of $385 and executed said note for $215 and the deed of trust on account of defendants' representations, and relied wholly thereon, and, but for said representations by defendant Samuel Bell, plaintiffs would not have purchased said tract. Wherefore plaintiffs say they have already paid full value for the land actually conveyed to them by defendant, and ask that defendant be required to bring said note and deed of trust into court, that the note be canceled, and held for naught, that the deed of trust be declared fully satisfied, and that defendants, or either of them, be forever enjoined from collecting said note by sale under said deed of trust or otherwise, and for such other relief as to the court may seem just and proper."

The answer of defendant Bell admits the execution of the deeds as alleged in the petition, and that the deed of trust and note were given to secure part of the purchase price of the land described in the petition, but denies all the other allegations in the petition. For further answer it alleges default in the payment of the note secured by the deed of trust, and an advertisement and sale by defendant Jones, the trustee therein, under the provisions of the deed of trust on July 3, 1897, at which defendant Bell became the purchaser for $250; and the execution of a trustee's deed to defendant Bell, and then concludes with a count in ejectment and prayer for possession. The reply admits the sale by the trustee, and that he made defendant Bell a deed as alleged in the answer, and denies all the other new matter set up in the answer. The cause was tried as a suit in equity, and the court found that defendant Bell represented the tract of land as containing at least 80 acres, and nearer 90 or 100; that his representations were false and fraudulent, and that plaintiffs were wholly ignorant of the number of acres in said tract; that plaintiffs paid $385 on the purchase price, and gave a deed of trust on the same land to secure the balance of $215; that the contract price was $600, or at the rate of $7.50 per acre; that in fact the tract only contained 61 acres, and plaintiffs were damaged to the amount of $142, or the price of 19 acres, at $7.50; that pending the action the trustee sold the whole tract under the deed of trust, and defendant Bell purchased the same, and received a trustee's deed therefor.

By its decree the court set aside the deed of trust and trustee's deed, and upon an accounting decreed that plaintiffs were indebted to defendant Bell in the sum of $72.50 as and for the balance of the purchase money, and decreed defendant a lien on said tract of land for that sum, and required plaintiffs to pay the same in 90 days, with 8 per cent. interest from March 16, 1896, and upon his failure to do so awarded special execution against said lands to satisfy said judgment, and divided the unadjudged costs between the parties.

The decree is assailed on the ground that the bill states no equity; that on the facts stated plaintiffs' only remedy was an action at law for damages. The petition states a clear case of actual fraud, whereby plaintiffs, the purchasers, were induced to accept a deed from defendant to a tract of land represented by defendant to contain at least 80 acres, when it in fact only contained 61 acres, and to pay the larger part of the purchase money cash, and to execute a deed of trust on the same land for the balance of the purchase money; that the plaintiffs were ignorant and uneducated people, and wholly incompetent to understand or comprehend a description of land by metes and bounds; and that to cover up the fraud and allay any suspicion of plaintiffs the defendant caused the deed to be prepared, executed, and acknowledged, and brought to plaintiffs, and represented to them that the deed contained the description of 80 or more acres, and was the same as in his deed to said land; and that, being ignorant of the number of acres in said tract, they relied...