McGhee v. Bell

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

70 S.W. 493

170 Mo. 121

McGHEE et al. v. BELL et al., Appellants

Supreme Court of Missouri, Second Division

November 12, 1902

Appeal from Benton Circuit Court. -- Hon. W. S. Jackson, Special Judge.

Affirmed.

Henry P. Lay for appellants.

(1) Plaintiffs' petition is without equity, and fails to state any cause of action because: (a) It attempts to force on the defendant a new contract, to which he never assented. Norton v. Bohart, 105 Mo. 631; Fruin v Railroad, 89 Mo. 405. (b) It attempts to retain the benefits derived from a contract, and to avoid the obligations arising from the contract. Smith v Busby, 15 Mo. 393; Woodward v. Van Hoy, 45 Mo 300; Beaty v. Coal Co., 56 Mo.App. 221; Norton v. Bohart, supra; Estes v. Reynolds, 75 Mo. 563; Fruin v. Railroad, supra. (c) A vendee who claims to have been induced to purchase land by fraudulent misrepresentations made by the vendor can not retain possession of the land purchased and avoid the payment of any part of the purchase money because of fraud. If he desires to avoid any part of the contract of sale he must deliver possession, tender back a deed and rescind the whole contract. 21 Am. and Eng. Enc. of Law (1 Ed.), 84, 91; Estes v. Reynolds, supra; Lopp v. Ryan, 23 Mo.App. 436. (d) While the prayer of the petition is for the cancellation of a deed of trust on the ground that the debt secured has been paid, yet the other allegations of the petition show that no part of the debt has really been paid, and that the real object of the petition is to rescind a part of the contract of sale, while affirming the remainder, which can not be done. Lewis v. Land Co., 124 Mo. 672; Estes v. Reynolds, supra; Crumb v. Wright, 97 Mo. 18; Robinson v. Siple, 129 Mo. 208; Bogard v. Bogard, 138 Mo. 429. (2) The judgment is erroneous on its face. The facts found by the court, even if supported by the evidence, do not authorize the court to grant the relief it does. The facts as found by the court show the plaintiffs to be entitled to legal damages, if anything, and the relief granted is purely equitable. The judgment is also erroneous because the finding of the court that the sale to McGhee was a sale by the acre is supported neither by the allegations of the petition nor by any evidence. (3) A mere statement of opinion as to quantity by a vendor, even though mistaken, does not entitle the vendee to relief, especially where, as in this case, the vendee has ample opportunity to investigate and judge for himself. 14 Am. and Eng. Enc. Law (2 Ed.), 34; Anderson v. McPike, 86 Mo. 293; Nauman v. Oberle, 90 Mo. 666; Bank v. Hunt, 76 Mo. 439; Dalrymple v. Craig, 149 Mo. 345; Lewis v. Land Co., 124 Mo. 687. (4) On discovering the fraud the vendee of lands must proceed to rescind the contract of sale promptly, and in toto, and place the vendor in statu quo. A failure to do so leaves him only his legal action for damages for the deceit. Lewis v. Land Co., supra; Lapp v. Ryan, supra; Robinson v. Siple, 129 Mo. 222; Taylor v. Short, 107 Mo. 384; Dougherty v. Stamp, 43 Mo. 247; Estes v. Reynolds, supra; Kirk v. Seeley, 63 Mo.App. 266; Crumb v. Wright, supra. (5) (a) Under the pleadings and evidence, the trial court should have rendered judgment in favor of defendant Bell for the possession of the land, and for damages at the rate of $ 35 per year at least. Baker v. St. Louis, 75 Mo. 671; Morrison v. Herrington, 120 Mo. 665. (b) And it is proper for this court to enter such judgment now, this being an equity case, and there being no serious dispute as to the material facts upon which defendant's right to possession is based. Darrier v. Darrier, 58 Mo. 234; Huff v. Shepard, 58 Mo. 242; Land Co. v. Hays, 105 Mo. 143.

W. L. P. Burney for respondents.

(1) A party defrauded in a contract may stand by it, even after he discovers the fraud, and recover damages resulting from the fraud, or he may rescind the contract and recover back what he has paid or sold. Parker v. Marquis, 64 Mo. 38; Nauman v. Oberle, 90 Mo. 666; Brownlow v. Wollard, 61 Mo. 124; 14 Am. and Eng. Ency. Law, 168; Hall v. Clark, 21 Mo. 415; Schultz v. Christman, 6 Mo.App. 238; Cahn v. Reid & Bungardt, 18 Mo.App. 115. (2) When a person who has been drawn into a purchase or other contract by fraud does not seek to rescind the same, but merely seeks to recover the damages sustained by reason of the fraud, he is not required to return or offer to return what he has received under the contract. He may retain the same and recover his damages. 14 Am. and Eng. Ency. Law, 168; Shinnebarger v. Shelton & Lane, 41 Mo.App. 147; Hitchcock v. Baughman, 36 Mo.App. 216; Brockhaus v. Schulting, 52 Mo.App. 73; Heed v. Pierce, 8 Mo.App. 568; Prior v. Foster 130 N.Y. 171. (3) Where a petition contains a prayer for general relief, a court will grant any and all relief that is necessary to substantial and complete justice between the parties. Schneider v. Colyer, 72 Mo. 569; Pomeroy v. Benton, 57 Mo. 531; Rankin v. Charles, 19 Mo. 490; Bevins v. Powell, 83 Mo. 365; Harper v. Kendell, 65 Mo.App. 514; Crosby v. Bank, 107 Mo. 436; Conrad v. Harris, 89 Mo. 217. (4) (a) Where a court of equity has once obtained jurisdiction of a cause, it will not relinquish same until it has done full and complete justice between the parties. 11 Am. and Eng. Ency. Law (2 Ed.), 201; McDaniel v. Lee, 37 Mo. 204; Boynton v. Miller, 63 Mo. 209; Holland v. Anderson, 38 Mo. 55. (b) Equity has ancient and original jurisdiction in matters of fraud and deceit, and, where these are present, its jurisdiction will not be ousted, notwithstanding the party has also an action at law, but will take charge and decide all matters between the parties, to prevent a multiplicity of suits. Nelson v. Betts, 21 Mo.App. 232; Biddle v. Ramsey, 52 Mo. 153; St. Louis v. Gaslight Co., 70 Mo. 105; Bales v. Gilbert, 84 Mo.App. 679; Rogers v. Bank, 82 Mo.App. 377; Black v. Rogers, 75 Mo. 441. (5) The measure of damages for false representations on a sale is the difference between the value as represented and as it actually is, and not the difference between the market value and the price paid. Davenport v. Anderson, 28 S.W. 922; Farmer v. Randall, 28 S.W. 384; Bank v. Byers, 139 Mo. 627; Assyln v. Frank, 8 Mo.App. 116; Cahn v. Reid, 18 Mo.App. 116; McBeth v. Craddock, 28 Mo.App. 380; Clark, Admr. v. Railroad, 36 Mo. 216; Shinnebarger v. Shelton, 41 Mo.App. 147. The petition does not in so many words ask for damages, yet the facts alleged and the prayer for general relief entitle plaintiff to damages. Cahn v. Reid, 18 Mo. 120; Schultz v. Christman, 6 Mo.App. 338; Heed v. Pierce, 8 Mo.App. 568; Hull v. Pace, 61 Mo.App. 120.

GANTT J. Sherwood, Robinson, Valliant, Marshall and Brace, JJ., concurring therein; Burgess, C. J., dissents and expresses his views in a dissenting opinion.

OPINION

In Banc

GANTT, J.

-- This is a suit in equity to enjoin the sale of plaintiffs' land 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 in township forty of range twenty-three, lying in the following metes and bounds: commencing at the 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 plaintiff and stated to plaintiff 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 plaintiff 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 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 defendant 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 recorder's office of Benton county, at deed book 67, page 188.

"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...