Nearen v. Bakewell
| Decision Date | 20 June 1892 |
| Citation | 110 Mo. 645,19 S.W. 988 |
| Parties | NEAREN et ux. v. BAKEWELL et al. |
| Court | Missouri Supreme Court |
1. Plaintiff purchased land from defendant for $1,200, paying $200 cash and giving notes for $1,000. The tract was worth about $500, and contained 80 acres, about 12 of which were in cultivation, and about as much tillable, having on it a spring that went dry in early summer. Plaintiff was a stranger in the neighborhood, and defendant told him that about 40 acres were under cultivation, that the spring was never failing, and that the entire tract was tillable. Plaintiff testified that on a visit to the land, defendant pointed out 40 acres, fenced, and said that belonged to the tract, when in fact it belonged to a neighboring tract. Defendant was a real-estate agent, and well acquainted with the land, the title of which was in his wife, for whom he had bought it a short time before, paying $400 therefor. Held, in an action for rescission, that the evidence sustained the chancellor's finding and decree for the cancellation of plaintiff's notes.
2. Plaintiff not having appealed, the chancellor's decree, refusing to direct the return of plaintiff's cash payment on the ground of occupation of the premises for a time by plaintiff, will not be disturbed.
Appeal from circuit court, Jefferson county; JOHN L. THOMAS, Judge.
Action by John C. Nearen and wife against Judith I. Bakewell and husband. Judgment for plaintiffs. Defendants appeal. Affirmed.
Thomas & Horine, for appellants. Jos. J. Williams, for respondents.
On the first of January, 1887, the defendant Judith I. Bakewell, being the owner, to her separate use, of an 80-acre tract of land in Jefferson county, Mo., through her husband, acting as her agent, sold the same to plaintiffs for $1,200, $200 of which was paid in cash, and for the remainder, plaintiffs executed 10 promissory notes of that date, each for the sum of $100, payable with interest at the rate of 8 per cent., one on the 1st day of January of each successive year thereafter for 10 years, and thereupon received a deed from the said Judith and husband; and to secure the payment of said promissory notes the plaintiffs executed and delivered to her a deed of trust upon the land. This action is brought to cancel said promissory notes and for the return of the cash payment, upon the ground of fraud, with tender and deposit of a proper deed of reconveyance. The court found the issues for the plaintiffs, enjoined the collection of the notes, decreed their cancellation, and the delivery of the deed to the defendant; but refused to decree the return of the cash payment, upon the ground of the occupation of the premises for a time by the plaintiffs, and that some timber had been taken therefrom by them. The defendants appealed. The only question in the case is whether the finding of the chancellor is supported by the evidence. The trade was negotiated by the husbands. It appears pretty satisfactorily from the evidence that the land was an indifferent tract of timbered land, worth about $500, without a house on it; about 12 acres of which were in cultivation, and about as much more susceptible of cultivation, when cleared and broken, having on it a wet-weather spring that went dry in early summer. That the defendant J. B. Bakewell was a real-estate agent, residing in the vicinity, and well knew the quality and value of the land, having bought it for his wife about six months before for $400, cash. That the plaintiff John C. Nearen, a responsible man, was a stranger to the land and its neighborhood, residing in the state of Illinois, and ignorant of its quality or value. That, in the fall of 1886, his attention was called to the fact that Bakewell had lands for sale in Jefferson county, by his advertisement in the Globe-Democrat. That about the 11th of November he came to Jefferson county to see Bakewell about the...
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