Ryan v. Growney

• Decision Date: 20 November 1894
• Court: Missouri Supreme Court
• Parties: RYAN v. GROWNEY.<SMALL><SUP>1</SUP></SMALL>

28 S.W. 189

125 Mo. 474

RYAN v. GROWNEY.¹

Supreme Court of Missouri, Division No. 2.

November 20, 1894.

APPEAL — BILL OF EXCEPTIONS — CANCELLATION OF DEED — ESTOPPEL.

1. A refusal to grant a motion for a new trial or a motion in arrest of judgment will not be reviewed unless presented by a bill of exceptions.

2. Though no bill of exceptions has been prepared, the court will reverse the judgment for material error apparent on the record.

3. An infant who represents himself of age, and thereby induces one to purchase land of him, will be estopped by his fraudulent representations from calling on a court of equity to cancel the deed.

Appeal from circuit court, Nodaway county; C. A. Anthony, Judge.

Action by John Ryan against James C. Growney to cancel a deed executed by plaintiff when an infant. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff instituted this equitable proceeding in order to obtain the canceling of a deed made to the defendant of a certain fractional interest in a tract of land, the consideration paid therefor being $100. The petition charges that the deed in question was obtained by defendant taking advantage of plaintiff's infancy (he being then under 21 years of age), and contriving to defraud and overreach him, and to persuade him to execute and deliver to defendant the deed aforesaid, which defendant immediately put to record; that plaintiff, having now attained his majority, repudiates the deed, which is a cloud on his title, defendant having refused to reconvey; wherefore, etc. Defendant's answer, after a general denial, except, etc., sets up that plaintiff had every appearance of being 21 years of age, and, in order to "induce the trade," designedly and premeditatedly represented to the defendant that he was then of full age, and defendant relied on plaintiff's statements and on his affidavit to that effect, and that plaintiff was fully aware of his infancy at that time; that such statements were made by plaintiff with the design and for the purpose to entrap the defendant into making the purchase of the land, and to induce him to part with the purchase price thereof; that defendant, relying on these statements and on the affidavit, in good faith purchased from and paid to plaintiff the agreed purchase price of said land, and accepted from him a deed therefor; that, by reason of the premises, plaintiff is estopped, etc. The reply was a general denial, except, etc., and then proceeds: "Further replying, the plaintiff says that the defendant got this plaintiff into an intoxicated condition, and, while in that condition, plaintiff was induced to and did make the affidavit mentioned in the answer, not knowing or understanding the nature thereof." The court, at the close of the case, entered a decree in behalf of plaintiff, in substance as follows: "The court, having heard and considered all the testimony, doth find, order, decree, and adjudge that the deed executed by the plaintiff, John Ryan, to the defendant, James C. Growney, * * * purporting to convey from said Ryan to said Growney an undivided three-eighths interest in and to [describing the land], be, and the same is hereby, ordered, decreed and adjudged canceled, and null and void, and for naught held. It is further adjudged that the defendant, James C. Growney, have and recover of the plaintiff, John Ryan, one hundred and six dollars; that the judgment be, and is hereby, made a lien of the aforesaid interest in said land; and that plaintiff have thirty days to discharge said lien, and, in default thereof, defendant have special execution against said interest in said land to satisfy said judgment. And the court finds as follows: That on the 28th day of March, 1892, the plaintiff, John Ryan, was not twenty-one years old; that he did not reach or attain his majority until August, 1892. And the court further finds that John Ryan, on said 28th day of March, 1892, at the time of signing, acknowledging, and delivery of said deed, was not under the influence of intoxicating liquors to the extent that he was not fully capable of comprehending his acts; that he made affidavit that he was past the age of twenty-one. It is further adjudged that defendant pay the costs of his own witnesses, subpoenas, service, mileage, and per diem; that plaintiff pay all other costs." No bill of exceptions was filed by defendant.

Jas. C. Growney, in pro. per. McCullough & Peery and W. C. Ellison, for appellee.

SHERWOOD, J.

It ought to be regarded as settled in this state that without a bill of exceptions there can be no such thing as a motion for a new trial or a motion in arrest. The preservation of these motions is the special and exclusive office of the bill of exceptions. They can be preserved nowhere else. That is sole repository of such motions. No recital by the clerk in the record proper will have any such preservative effect. Nichols v. Stevens (Mo. Sup.) 25 S. W. 578. This holds good of all motions made for finding of facts as provided by statute, the only exception being that motions which constitute pleadings are regarded as a part of the record proper, just like any other pleading. State v. Court of Appeals, 87 Mo. 374; Wilson v. Railway Co., 108 Mo. loc. cit. 602, 18 S. W. 286. Under the old practice, all motions not constituting part of the record proper had to be incorporated into — i. e. copied in — the bill of exceptions; but, under the new statutory regimé, the old rule has been so far relaxed that, "provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court," this will be sufficient. State v. Griffin, 98 Mo. 672, 12 S. W. 358. And not only must there be a bill of exceptions, and the motions desired to be preserved, preserved as aforesaid, but, on the denial of the motion for a new trial or in arrest, exception must be saved, and this must be preserved in the bill of exceptions, by being recited therein. Without such exception thus taken and saved, the so-called "bill" becomes "as sounding brass or a tinkling cymbal." In such case, in contemplation of law, there is no such motion. State v. McDonald, 85 Mo. 539; State v. Gilmore, 110 Mo. 1, 19 S. W. 218. But here there is not even a...