Morley v. Harrah

• Decision Date: 19 February 1902
• Citation: 66 S.W. 942,167 Mo. 74
• Parties: MORLEY v. HARRAH et al.
• Court: Missouri Supreme Court

66 S.W. 942

167 Mo. 74

MORLEY v. HARRAH et al.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

ACTION TO SET ASIDE DEED — FRAUDULENT REPRESENTATIONS — EVIDENCE.

Deed from plaintiff in consideration of $800 in notes, part of $2,000 in notes secured by mortgage, should be set aside for fraudulent representations; plaintiff testifying that defendant told him that the $2,000 notes represented a loan on the mortgaged land, and that it was under cultivation and rented for $250 per year; it appearing that the land was worthless and unoccupied; that the person giving the mortgage did not own the land, and was not known by any witness; that defendant told plaintiff he must trade at once, if at all; and that two days later defendant conveyed the land to another, without consideration and without his knowledge; defendant testifying that he took the notes in exchange for a stock of goods; that when he traded with plaintiff he knew nothing about the land; that he told plaintiff so, and made no representations, but that he gave plaintiff a written description of the land, containing the representations plaintiff charged him with making; a witness testifying that, shortly before such trade, defendant tried to sell the notes to him, and made such representations as to the land; and an attorney testifying that defendant, in talking with him about his indebtedness, had stated that the notes were worthless.

Appeal from circuit court, Clinton county; A. D. Burnes, Judge.

Suit by George W. Morley against J. C. Harrah and others. Judgment for defendants. Plaintiff appeals. Reversed.

Thos. E. Turney and Jas. E. Goodrich, for appellant. Jos. Barton and Wm. Henry, for respondents.

VALLIANT, J.

This is a suit in equity to set aside a deed from plaintiff to defendant J. C. Harrah, conveying certain real estate in the town of Cameron, on the ground that the deed was obtained by fraudulent misrepresentations. There was a finding and judgment for the defendants in the circuit court, and the plaintiff appeals.

The evidence shows that the plaintiff's property, consisting of a house and two lots in Cameron, was worth about $1,500; that, having expressed a desire to sell, he was approached by a real estate agent named Meservey, who introduced him to defendant Harrah as one likely to buy. Negotiations between Harrah and the plaintiff ended in plaintiff's deeding to Harrah the property for the consideration of $1,500. Acknowledgment of payment was expressed in the deed; the conveyance being made subject to a mortgage on the property of $700, which Harrah assumed to pay, as part of the consideration. The $1,500 was in fact not paid in cash, but by the assumption of the $700 mortgage, and the transfer to plaintiff of a note for $500, and three-fifths of another $500 note owned by Harrah's wife. These two $500 notes were a part of $2,000 deed of trust incumbrance on 240 acres of land in Camden county. At the time the trade was made, one of the $500 notes was given to the plaintiff, and one placed in the hands of a third person to be collected; $300 of the proceeds to be delivered to plaintiff, and $200 to Harrah. The remaining $1,000 note was retained by Harrah. It turned out that the notes were entirely worthless, and the plaintiff has received nothing for his property. The question of fact as to the representations made by defendant Harrah depends chiefly, though not entirely, on the testimony of the plaintiff. He testified that Harrah told him that the $2,000 note represented a loan of that amount made on the Camden county land; that it was under cultivation, and was at that time rented for $250 a year; part of it was valley land, and the rest valuable timber; that the title was perfect; that he had had it examined by a lawyer, who pronounced it good. The fact developed that the land was of very little value, not under cultivation, scarcely susceptible of it, and not rented at all. The grantor in the deed of trust, and maker of the notes, had no title, and was himself unknown to any one who testified in the case. The negotiations began on June 8, 1898, and the trade was closed the next day. During the negotiations, on the 9th of June, Harrah showed the plaintiff the deed of trust and notes, and a paper containing a description of the land; also a paper which is spoken of in the testimony as an "abstract of title." What the contents of the abstract were, or by whom made, does not appear, as it was not produced at the trial. At that time the plaintiff stated that he would take time to investigate the title; but Harrah told him that the trade would have to be made then, or not at all, because he was going to Kansas City that evening. Then they went to the office of another real estate agent, — a Mr. Cornish, — whom plaintiff requested to examine the papers; and he did so, and said the papers were regular. Thereupon the trade was concluded. One...