Morgan v. Joy

• Citation: 26 S.W. 670,121 Mo. 677
• Parties: Morgan v. Joy et al., Appellants
• Decision Date: 14 May 1894
• Court: Missouri Supreme Court

26 S.W. 670

121 Mo. 677

Morgan v. Joy et al., Appellants

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Affirmed.

C. H Nearing for appellants.

(1) The court erred in admitting the trustee's deed from Nat. H Vincent to Mary S. Morgan, dated February 14, 1887. R. S sec. 7093. (2) The court erred in finding appellants bound by the settlement of December 3, 1888. It was not their voluntary act. Davis v. Luster, 64 Mo. 45; Turley v. Edward, 18 Mo. 677; Collins v. Westbery, 2 Bay, 211; Eadie v. Slimmon, 26 N.Y. 12; Miller v. Miller, 68 Pa. St. 486; White v. Heylman, 34 Pa. St. 142; Merty v. Mitchell, 91 Pa. St. 114.

Gates & Wallace for respondent.

(1) The court did not err in admitting the trustee's deed from Nat. H. Vincent to Mary S. Morgan, of February 14, 1891, in evidence, because: First. The objection that "the trustee's notice of sale does not comply with the statute" is not tenable. It gives the date of the deed and the book and page where it is recorded. This is just what the statute requires. R. S., sec. 7093. Second. No objection was made to the introduction of the trustee's deed on account of insufficiency of the notice of sale. The only objection was that the deed was incompetent and immaterial. This is not specific enough to raise the question now presented for the first time in this court. Stone v. Hunt, 114 Mo. 66; Price v. Town of Breckinridge, 92 Mo. 378; Dunkman v. Railroad, 95 Mo. 232; Lohart v. Buchanan, 50 Mo. 202; Corrister v. Railroad, 25 Mo.App. 619. (2) Even if the trustee's notice of sale was defective, it would be no defense on part of defendants in this suit, unless they had by their answer offered to redeem by paying the amount due on the notes secured by the deed of trust, and which were given for the purchase price of the property, Schanewerk v. Hoberecht, 117 Mo. 22; Kennedy v. Siemers, 120 Mo. 73; Springfield Engine and Thresher Co. v. Donovan, 120 Mo. 423. (3) The claim that defendants were compelled to execute the agreement of December, 1888, and the deed of trust of December 4, 1888, is wholly without merit. They were their voluntary acts. There were none of the elements of duress in the transaction. As to what is necessary to constitute duress, see: Wolfe v. Marshall, 52 Mo. 167; Claflin v. McDonough, 33 Mo. 412; Davis v. Luster, 64 Mo. 43; Wilcox v. Howland, 23 Pick. (Mass.) 167, loc. cit. 170; Holmes v. Hill, 19 Mo. 159; Buchanan v. Sahlein, 9 Mo.App. 552; Brisbane v. Dacres, 5 Taunt. 143. (4) The statement which Mrs. Joy says she made to the notary public certainly is not sufficient to impeach the certificate of acknowledgment. Comings v. Leedy, 114 Mo. 477; Biggings v. Building Co., 9 Mo.App. 210; Ray v. Crouch, 10 Mo.App. 321; Riecke v. Wertenhoff, 10 Mo.App. 358. (5) The contract of settlement of December 3, 1888, is binding and conclusive on the defendants. They signed it with a full knowledge of the contents, after repeated consultations with their attorney who attested it, received all the benefits of it, and made no complaint concerning it until this suit was brought, more than two years thereafter. Burnham v. Rosenberger, 110 Mo. 468; Gwin v. Waggoner, 98 Mo. 327, 328; Taylor v. Short, 107 Mo. 384; Mateer v. Railroad, 105 Mo. 320; Campbell v. Van Houten, 44 Mo.App. 231, 238.

OPINION

Black, P. J.

Mary S. Morgan brought this action of ejectment against C. Mason Joy and his wife, Sarah S. Joy, to recover property known as the Merchant's Hotel in the city of Independence. The defendants, in their answer aver that they and John H. Taylor and George B. Wightman purchased the property from the plaintiff, who was the owner thereof, at the price of $ 30,000, one-half cash and one-half on time; that they were induced to join Taylor and Wightman in the purchase and to pay $ 5,000 on the cash payment by the false and fraudulent representations of Taylor and Wightman, and that the plaintiff was a party to the fraud. They tender plaintiff a deed of release and ask judgment for the $ 5,000 so paid by them. The plaintiff avers in her reply that all differences between her and the defendants arising out of the sale were compromised and settled at a subsequent date. The other issues will be noticed hereafter.

The evidence bearing upon the issues before mentioned is to the following effect:

The plaintiff being the owner of the property, gave Taylor and Wightman an option to purchase it at the price of $ 20,000. Holding this option, Taylor and Wightman represented to the defendant, C. Mason Joy, that the property could be purchased at the price of $ 30,000, one-half cash and one-half on time, and that $ 30,000 was the least the plaintiff would take for it.

By these and some other representations, Taylor and Wightman induced Joy to join them in the purchase, and Joy paid his share of the cash payment, namely, $ 5,000. Thereupon the plaintiff conveyed the property to one Foote by deed dated the fourth of April, 1887, for the recited consideration of $ 30,000. At the same time Foote executed his note payable to the plaintiff for $ 15,000, and secured the same by a deed of trust upon the property. Foote then conveyed to Wightman, who conveyed a one-third interest to defendant C. Mason Joy, the latter assuming and agreeing to pay one-third of the $ 15,000 incumbrance. Taylor and Wightman paid no part of the alleged $ 15,000 cash payment. Foote was a mere man of straw in the hands of Taylor, Wightman and the plaintiff. As the plaintiff made no effort to overcome the charges of fraud, but relied upon the subsequent settlement, it is useless to detail the further evidence on this branch of the case. As the record stands, the conclusion is irresistible that Joy was induced to make the purchase and pay the $ 5,000 by the false and fraudulent statements of Taylor and Wightman, and we are bound to conclude that plaintiff knew of and was in fact a party to the fraud. Joy, therefore, had the right to rescind the transaction and recover the $ 5,000 paid by him. This conclusion brings us to the settlement set up in the plaintiff's reply.

As bearing upon this settlement, the evidence discloses the following facts: Joy and Wightman took possession of the property and carried on a hotel business therein. The plaintiff and Taylor boarded at the hotel. Things ran on in this way for some eight or ten months when differences arose about board bills of some of these parties. Taylor, Wightman and Joy made default in the payment of interest on the $ 15,000 incumbrance. In the meantime Joy became possessed of the knowledge of the fact that Taylor and Wightman paid nothing on the purchase. In short, he knew all about the prior transaction and the connection of the plaintiff therewith. With such knowledge he and his wife, to whom he had transferred his one-third interest, and the plaintiff executed a written contract, dated the third of December, 1888, to the following effect: The plaintiff agreed to purchase in the property at a sale to be made under the Foote deed of trust and then convey it to the defendant, Sarah S. Joy, at the price of $ 15,750. The defendants agreed to give their notes to plaintiff for $ 15,000 of that amount and secure the same by a deed of trust on the same property. The agreement contains this further stipulation:

"It is further agreed that all matters and differences, and all claims, damages and demands whatsoever which C. Mason Joy and Sarah S. Joy have asserted or may have had, or now have, growing out of the sale of the Merchant's Hotel property in 1887 are declared by them to be now settled and withdrawn, and are now...