Owens v. Rector

• Decision Date: 31 August 1869
• Citation: 44 Mo. 389
• Parties: JOHN L. OWENS, Respondent, v. GEO. W. RECTOR, Appellant.
• Court: Missouri Supreme Court

44 Mo. 389

JOHN L. OWENS, Respondent,

v.GEO. W. RECTOR, Appellant.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

Woodson and Jones, for appellant.

I. A grantee may set up as defense to a note given for the purchase of real estate, that the property sold to him, or part of it, was not the property of the grantor, though he (the grantee) may not have been evicted. (23 Mo. 151; 4 Mass. 627; 12 Mass. 304; 8 Pick. 547; Rawle on Covenants, 464.)

II. The answer sets up fraud, and sets out the representations made by the agent of the plaintiff, upon which he relied, and which proved to be false. This constitutes a defense. (12 Mo. 517; Rawle on Covenants, 485.)

III. False representations by the vendor, by which the vendee is induced to purchase, though honestly made, constitute fraud in law. (11 Mo. 655.)

IV. Fraud in fact is a question for the jury. (7 Mo. 245.)

V. If plaintiff's agent assumed to know the boundaries of the lots when in fact he did not know them, and the defendant, relying upon his representations, bought the property, and the representations proved to be false, it constitutes fraud. In such case the plaintiff is bound by the act of his agent. The purchaser may detain the purchase money, or have such other proper relief as he may claim in a court of law or equity. (Rawle on Covenants, 466-7, 471, 475-9.)

VI. The doctrine that representations by his agent must have been known to be false by the vendor does not apply in the sales of real estate. (29 Mo. 189.)

Hall & Oliver, and Strong & Chandler, for respondent.

The pleadings and evidence show that defendant and those claiming under him have peaceable possession of all defendant bought, and defendant does not offer to rescind the sale. “The purchase money and the land could not both be retained.” (Ash v. Holder, 36 Mo. 167; Smith v. Busby, 15 Mo. 392; Wallace v. Boston, 10 Mo. 662-3; 5 Blackf. 430; 15 Ind. 176; 17 Ind. 98; Willets v. Burgess, 34 Ill. 500; Rawle on Covenants, 505; 10 Mo. 466; 23 Mo. 163.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff brought suit, in the Buchanan Court of Common Pleas, upon a promissory note for $700 executed to him by defendant. Defendant pleads fraud, and alleges that the note was given for the deferred payment upon a purchase of certain lots in St. Joseph at the price of $3,100, the balance having been paid in cash at the time of the purchase; that the plaintiff, by his attorney for the sale, Jas. A. Owens, executed a warrantee deed for the lots by number, being lots 6 and 7, etc.; that, before making the sale, plaintiff's land agent and attorney went upon the premises with the defendant, and pointed them out to him--the same being inclosed with a fence, and containing a frame dwelling-house back about sixteen feet from the front of the lots as inclosed; and that, relying upon these representations of locality, the defendant purchased the lots without survey or further examination. Defendant further alleges that these representations were untrue, and known to be so by said Owens; that the said lots were only partially inclosed by the fence; that a portion of them are outside and below the ground fenced; that the street running in front of the lots will, when opened according to its true location, cut off some nine feet of the front of the house; and that the property is worth $2,000 less than it would have been if located as represented by plaintiff's agent, which sum is the damages he has suffered, and for which he asks judgment.

The reply denies all the allegations of the answer except the consideration of the note. Upon the trial there was testimony tending to prove the defendant's allegations, and the jury allowed him some $800 damages as an offset. The verdict was set aside by the court; and upon the next trial the case was taken from the jury by a positive instruction to find for the plaintiff the amount of the note and interest.

Inasmuch as there was testimony in support of the answer, the defendant had a right to the opinion of the jury upon the issue raised by it unless the answer failed to make a case that entitled him to relief. The plaintiff claims that the pleading is defective in not showing dispossession or an offer to rescind the sale. For aught that appears by the answer--and so the evidence shows the fact to be--the def...