Picotte v. Mills

• Citation: 200 Mo. App. 127,203 S.W. 825
• Decision Date: 11 March 1918
• Docket Number: No. 2188.,2188.
• Parties: PICOTTE v. MILLS
• Court: Court of Appeal of Missouri (US)

203 S.W. 825

200 Mo. App. 127

PICOTTE v. MILLS

No. 2188.

Springfield Court of Appeals. Missouri.

March 11, 1918.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Lina I. Picotte against Ruhamah B. Mills. From judgment for plaintiff, defendant appeals. Affirmed.

Watson & Page and Williams & Galt, all of Springfield, for appellant. Patterson & Patterson, of Springfield, for respondent.

STURGIS, P. J.

This is an action for money had and received, the object being to recover back money paid by plaintiff to defendant under a mistake. The plaintiff had judgment, and the defendant appeals assigning numerous errors. It will be quite impossible within the confines of an ordinary opinion to state all the facts and discuss in detail the 20-odd distinct propositions of law, many of them with several subdivisions, contained in appellant's able and painstaking briefs. We have examined these briefs with care, but can only discuss such phases of the case as seem to us most important.

Objection was duly made, and defendant insists, that the petition fails to state a cause of action. The material allegations, which will serve as a statement of facts also, are these: Thos. E. Hendrix died intestate in Greene county, Mo., leaving no lineal descendants. His heirs at law consisted of this plaintiff, his widow, since remarried, his father and mother, one brother, four sisters of whom defendant is one, and the descendants of one brother and sister deceased. At and prior to the time of his death this plaintiff and her said husband were the owners of an estate by the entirety, under a deed to plaintiff and her said husband jointly, in and to 80 acres of land in Greene county, Mo., of the value of $8,000. This plaintiff was ignorant of such title and of the fact that after and by the death of her said husband she became and was the sole owner of said land. The defendant, and the other collateral heirs, were also ignorant of such facts. Acting on the assumption that the defendant owned an undivided eighteenth of said land by descent from said Thos. E. Hendrix, when in fact defendant had no interest whatever therein, plaintiff purchased defendant's supposed interest for $444.44, and paid defendant that amount therefor. On discovering said mistake the plaintiff demanded the return of the money so paid by her to defendant through mutual mistake for the interest that defendant did not own.

The objection to the petition stating these facts is that plaintiff could only recover on a mutual mistake of fact, and that the allegations as to the parties being ignorant as to the ownership of the land is an allegation of ignorance as to a matter of law. We shall see when we come to discuss the evidence, in connection with this allegation, that ownership is a mixed question of law and fact, or rather is a fact based on and resulting from the law (Clark v. Carter, 234 Mo. 90, 100, 107, 136 S. W. 310), and is sufficient to uphold an allegation of a mistake of fact. The allegation that each party was ignorant of the fact that plaintiff was the sole owner of the land when making the deal, and that the money was paid "through mutual mistake of fact" are sufficient to state a cause of action to recover back money paid through mutual mistake. This Is especially true where the objection comes after trial or by mere objection to the introduction of evidence.

The evidence shows that when plaintiff's husband died she and deceased's brother were appointed administrators of the husband's estate, and jointly administered on same. This estate consisted of about $80,000 in personal property and the homestead of about five acres in the town of Bois d'Arc, in addition to the 80 acres in question, which was really not a part of the estate. It is conceded that this 80 acres of land was conveyed by a deed to the husband and wife jointly, and that the wife took full title to the same by survivorship. Frost v. Frost, 200 Mo. 474, 481, 98 S. W. 527, 118 Am. St. Rep. 689; Hume v. Hopkins, 140 Mo. 65, 72, 41 S. W. 784. Notwithstanding this fact, of which all the parties were ignorant, the administrator, without looking at the deed, inventoried this land as belonging to the estate of Thos. E. Hendrix. The estate was then administered and settlement made on the theory that the wife, there being no children or descendants, was entitled to one half the estate, and the collateral heirs took the other half, the defendant taking one-ninth of such half. On this basis the collateral inheritance tax was assessed and paid. The rent from this 80 acres was carried into the assets of the estate. There were few, if any, debts to be paid, the expenses of administration were not large, and nearly all the personalty was distributed in kind at the final settlement. Nothing was done in the probate court as to the land, except to place it on the inventory and charge the rent received as assets of the estate.

On final settlement of the estate the distribution of the property in kind was looked after by the plaintiff's coadministrator, the defendant's brother and himself, a distributee, along with the attorney for the estate. The parties, other than plaintiff and one other, met together at the attorney's office, and reached the agreement in this respect, called by defendant a "family settlement." There was no dispute as to the amount each was to receive and very little as to what specific property each was to take. Just how or why is not shown, but plaintiff's homestead in the town property came up for discussion at this time, and aroused a little feeling, but it was agreed all around that the widow, this plaintiff, would sell her homestead for $1,000 cash to deceased's father, one of the collateral heirs, and a deed to such interest was executed. All the parties still believing that the 80 acres of land descended to them as tenants in common, the widow made a proposition through her brother-in-law to purchase the one-half supposed to belong to the collateral heirs for $4,000. The other parties, inclusive of the defendant, wanted a higher price, but as this was all plaintiff would give, the deal was closed, the money paid, and quitclaim deeds executed by the parties, that for defendant reciting the exact consideration paid, $444.44.

That money received under a mutual mistake of fact can be recovered in an action at law for money had and received must be conceded. Miller v. Fire Brick Co., 139 Mo. App. 25, 33, 119 S. W. 976; Bone v. Friday, 180 Mo. App. 577, 167 S. W. 599; Norton v. Bohart, 105 Mo. 615, 629, 16 S. W. 598. The defendant claims, however, that the mistake in this case was not mutual, but unilateral on plaintiff's part, the defendant merely making a quitclaim deed for whatever interest she might have in the land. The facts are, however, as both parties testified, that they both believed and acted under the belief that the land was owned by Thos. E. Hendrix at his death in fee instead of by him and his wife by the entirety, and that it then descended, under the statute of descents, one-half to plaintiff as widow and one-half to his collateral heirs of which defendant was one. Plaintiff frankly admits that she believed she owned an undivided one-eighteenth of said land; that she sold same and received the money therefor in good faith and made her deed to convey that interest. To say otherwise would be to convict her of bad faith and intentional fraud.

It is no longer an open question in this state that, when one person sells land or a definite interest therein to another, and each party acts under the assumption and mistaken belief that the vendor has the interest and title he bargains to sell and for which he receives the money, but that such is not the fact, then the money has been paid under a mutual mistake of fact and may be recovered. Griffith v. Townley, 69 Mo. 13, 33 Am. Rep. 476; Clark v. Carter, 234 Mo. 90, 136 S. W. 310. In the Griffith Case the purchaser bought land at an administrator's sale, and the evidence showed that both parties believed that such sale was of the full title to the land. The court said:

"If this was the belief of both parties, then it follows that Townley did not by his purchase procure the fee as he intended, and as Welton intended he should, then it is a case of mutual mistake, one of so fundamental a character as appeals very strongly for equitable interposition. * * * Where there was a mutual mistake of parties as to the interest of the vendor in the land sold, the Court of Appeals of Virginia held that the sale should be set aside. Irick v. Fulton's Ex'rs, 3 Grat. 193. And this, notwithstanding the whole matter arose from a mutual misconstruction of the deed and a will, and equitable relief was asked solely on the ground that the vendor and vendee both believed that the former only had an undivided interest in the land sold, when in truth she possessed the fee."

In Clark v. Carter, supra, the plaintiff purchased land of an executor, each intending to pass a good title in fee and each believing the executor had power to convey the fee. The court there said:

"It was not only a question of knowledge, but the result of the transaction was different from what both of them mutually intended that it should be, and that result was the direct result of their mutual mistake of fact, namely, that the executrix had the authority under the will to sell the remainder in fee, when in fact she had no such power. * * * In the recent case of Livingston v. Murphy, 187 Mass. 315 [72 N. E. 1012, 105 Am. St. Rep. 400], after a careful consideration of this question, the Supreme Court of Massachusetts held that a mistake as to the ownership of land is a mistake of fact in regard to which equity will grant relief, although the mistake arose from an erroneous view of the legal effect of a deed."

This same principle is expressed in 20 Ency. of Law (2d Ed.) 814, thus:

"The existence of a subject-matter being essential to every...