Nearen v. Bakewell

• Decision Date: 20 June 1892
• Citation: 19 S.W. 988,110 Mo. 645
• Parties: Nearen et al. v. Bakewell et al., Appellants
• Court: Missouri Supreme Court

19 S.W. 988

110 Mo. 645

Nearen et al. v. Bakewell et al., Appellants

Supreme Court of Missouri, First Division

June 20, 1892

Appeal from Jefferson Circuit Court. -- Hon. J. L. Thomas, Judge.

Affirmed.

Thomas & Horine for appellants.

(1) Inadequacy of price alone will not warrant a court of equity in relieving against or setting aside a contract. Holmes v. Fresh, 9 Mo. 201; Carter v. Aleshire, 48 Mo 300; Phillips v. Stewart, 59 Mo. 491; Stoffel v Schroeder, 62 Mo. 147. Bakewell, even after the first notes were due, offered, by letter, to accept $ 800 for the land. (2) The evidence does not make a case of misrepresentations authorizing the relief asked.

Joseph J. Williams for respondents.

(1) The trial court had the witnesses before it, and heard and passed on their testimony. It made an explicit finding in accord with the testimony and evidence offered by the plaintiffs. This court will defer in its conclusions in that regard. McCann v. Anthony, 21 Mo.App. 83; Harris v Township Board, 22 Mo.App. 462; Drosten v. Muller, 103 Mo. 624. (2) The decree was well supported by the testimony and should be affirmed, except in so far as it relates to the $ 200 paid by plaintiffs at the time of the purchase. In that respect it ought to be modified by this court. 1 Story's Equity [13 Ed.] sec. 192, p. 205; R. S. 1889, sec. 2304.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

On the first of January, 1887, the defendant, Judith I. Bakewell, being the owner to her separate use of an eighty-acre tract of land in Jefferson county, Missouri, 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 ten promissory notes of that date, each for the sum of $ 100, payable with interest at the rate of eight per cent., one on the first day of January of each successive year thereafter for ten 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 defendants; 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 husband. 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 twelve acres of which was 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 eleventh of November he came to Jefferson county to see Bakewell about the lands with the view of purchasing. That Bakewell took him to see this tract of land in question.

Nearen testified in substance that there were three or four inches of snow on the ground at the time; that he could not tell the character of the soil and knew nothing about it; that Bakewell represented the soil and the timber to be good; that he pointed out to him forty acres under fence and in cultivation which he said was upon the tract, and that the whole tract was susceptible of cultivation; that he took him to a spring and said it never went dry, affording plenty of water for the place the year round. After learning Bakewell's terms, Nearen went home, and some correspondence by letter then passed between them, which finally resulted in Bakewell visiting Nearen at his home in Illinois about the first of January, 1887, where he again made similar representations to Nearen and his wife in the presence of another witness about the land, in substance that the land was all...