Mitchell v. McMullen

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Mitchell v. McMullen, 59 Mo. 252 (Mo. 1875)
• Decision Date: 28 February 1875
• Parties: JEREMIAH X. MITCHELL, Respondent, v. THOMAS MCMULLEN, Appellant.

59 Mo. 252

JEREMIAH X. MITCHELL, Respondent,

v.THOMAS MCMULLEN, Appellant.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Chariton Court of Common Pleas.

Geo. W. Easley, with Casper W. Bell, for Appellant.

I. The evidence and finding of the court both showing two-ninths of the title to be outstanding, and the plaintiff insolvent, the contract should have been rescinded. When the legal title cannot be conveyed and the vendee must resort to a court of equity to establish his title, notwithstanding the conveyance of all the rights of the vendor the court will not compel him to pay the purchase money. (Hill. on Vend., [2 Ed.] p. 244; Bank, &c. vs. Hagner, 1 Pet., 455.) The vendee cannot be compelled to take a doubtful title; and a title is doubtful when other persons may fairly question it. (Hill. Vend., [2 Ed.] p. 210, § 3.)

Kinley & Kinley, for Respondent.

I. Before the court will grant the relief sought by appellant, it must conclusively appear that Mitchell willfully made false statements concerning the title to said property with intent to cheat and defraud McMullen; that McMullen relying solely upon these representations, purchased said property, and was injured by reason of said representations being untrue. (Cooley vs. Rankin, 11 Mo., 643, 645, 646; Langdon vs. Green, 49 Mo., 363, 368, et seq.; Exchange Bank vs. Russell, 50 Mo., 531, 535; Holland vs. Anderson, 38 Mo., 55; Bryan vs. Hitchcock, 43 Mo., 527; Corry vs. Keyser, 30 Ind., 214; Drake vs. Latham, 50 Ill., 270; Manny vs. Eaton, 3 Humph., 347; Slaughter vs. Green, 13 Wall. [U. S.] 379; Meyer vs. Armidon, 45 N. Y., 169; 40 N. Y., 562; Taylor vs. Scoville, 54 Barb., 34.)

II. Equity will not enjoin the collection of notes for price of land sold, after execution of deed, on account of failure of title, without eviction of purchaser, actual or constructive, by purchase of outstanding title, unless fraudulent practices in the sale of said property and fraudulent representations concerning the title to the property sold, are clearly proved to have been resorted to by the vendor and payee of said notes. (Abbott vs. Allen, 2 Johns. Ch., 522; Edington vs. Mix., 49 Mo., 134; Wheeler vs. Standley, 50 Mo., 509; Norman vs. Wells, 17 Wend., 160; Mitchell vs. Warner, 5 Conn., 497, 522; Hanson vs. Buckner, 4 Dana, [Ky.] 254; Upshaw vs. Debow, 7 Bush, 442; Potter vs. Taylor, 7 How., 133; Hacker vs. Blake, 17 Ind., 97; Small vs. Reeve, 14 Ind., 164; Norman vs. Lee., 2 Black, [U. S.] 499; Sedg. Dam., 4 Ed., 150, 204; James vs. Hayes, 34 Ind., 272, 300; Kirtz vs. Carpenter, 5 Johns., 120; Beddoe vs. Wadsworth, 21 Wend., 120; St. John vs. Palmer, 5 Hill, 599; Meadows vs. Hopkins, 3 Porter, 181; Davis vs. Rowland, 2 J. J. Marsh, 27; Barton vs. Rector's Adm'r, 7 Mo., 524.)

III. None but the heirs, creditors, or distributees can object to an administrator purchasing property of the estate being sold at administrator's sale, and then only by attacking the sale before confirmation by Probate Court, or by petition to redeem in a court of equity.

NAPTON, Judge, delivered the opinion of the court.

The action in this case was upon a note for $750, which was in part consideration of a sale and conveyance of certain lots in the city of Brunswick, in the county of Chariton.

The defense was, first, that the vendor fraudulently misrepresented the exact exterior lines of the lots, by stating that they were marked by the fences around them, which was untrue; and that the defendant was damaged by such false representations to the amount of $1000; and, second, that the plaintiff represented to the defendant that he had a good title, when the title was in the heirs of his wife, then dead; and therefore the defendant asked a rescission of the contract.

In regard to the first ground of defense, the court submitted issues to a jury, which were found for the plaintiff, and the court adopted the verdict; and as no stress is laid here upon this branch of the case, the details of the issues, evidence, instructions and decree of the court in reference thereto may be omitted. The court in its decree found, upon this point, “that the plaintiff did misrepresent and conceal the true location of the northern boundary of the lots, at the time negotiations were pending for their sale; but that when defendant finally executed the contract of sale, by paying a part of the purchase money, executing his notes for the balance, and accepting a deed from plaintiff to the lots, he had actual notice of all the facts in the premises; that the fencing represents the true southern boundary of said lots as originally surveyed and marked; that the adjoining proprietors have so acted as to be estopped from disputing said boundary, and that during the pendency of this suit they have executed and delivered to plaintiff a deed to the disputed ground.”

In regard to the second and main ground of defense, the court found upon the hearing as follows: “That the plaintiff was guilty of no fraud in the representations he made about his title; that he represented the same to be good, but at the same time disclosed to defendant the nature and source thereof, and that defendant finally executed the contract of sale and accepted a warranty deed from plaintiff to himself unconditionally, and with actual notice of the true situation of plaintiff's title. The court further finds that plaintiff's title was defective in part in this--that said title was derived from Maria E. Mitchell, deceased; and the deed of plaintiff as administrator of said Maria E. Mitchell, to Henry L. Gaines, and the deed of said Gaines back to plaintiff, offered in evidence by plaintiff, are void, and vested no title in plaintiff; that by reason thereof the title to the lots in Keyle's addition vested in the heirs of said Maria E. Mitchell, viz: (naming them); that by deeds from seven of the heirs the plaintiff had acquired seven-ninths of the title, and two-ninths were outstanding in Laura Bowman, a person of unsound mind, and Sallie Bowman, whose existence and whereabouts were unknown.”

The court therefore decrees that the contract remain undisturbed; that the plaintiff recover the amount of the note with interest, but that as the plaintiff was insolvent, a stay of execution be allowed, and the collection of the second note be enjoined, until the plaintiff executes a bond with security to be approved by the court, to secure and save harmless the defendant against any assertion of the two-ninths of the title outstanding; and the plaintiff and defendant were adjudged to pay each one-half of the costs.

It may be observed that the plaintiff's title was derived from a sale made by him, as administrator of his wife, by virtue of regular proceedings in the Probate Court, at which sale one Gaines became the purchaser; and that Gaines afterwards...