Ryan v. Growney

• Decision Date: 18 December 1894
• Citation: 28 S.W. 189,125 Mo. 474
• Parties: Ryan v. Growney, Appellant
• Court: Missouri Supreme Court

28 S.W. 189

125 Mo. 474

Ryan v. Growney, Appellant

Supreme Court of Missouri, Second Division

December 18, 1894

Rehearing Denied 125 Mo. 474 at 484.

Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.

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 twenty-one years of age), and contriving to defraud and overreach him, persuaded 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 twenty-one 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, $ 106; 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 twenty-eighth 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 twenty-eighth 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 witness, subpoenas, service, mileage and per diem; that plaintiff pay all other costs."

No bill of exceptions was filed by defendant.

Reversed and remanded.

James C. Growney, pro se.

In decreeing a cancellation of the deed on the facts found defendant maintains that the court committed error in not finding the law to be that the plaintiff, by his acts, assertions, admissions and conduct as shown by the pleadings and as disclosed in special finding by the court of the facts and embodied in the decree, is and should be estopped from setting up his minority or in asking a rescission of his deed -- this even though the fact of minority did exist. 1 Story's Equity Jurisprudence, sections 385, 386; 2 Pomeroy's Equity Jurisprudence [2 Ed.], sections 815 and 945; 2 Herman on Estoppel, pages 1254, 1255, sections 1118, 1119, 1120; Ferguson v. Bobo, 54 Miss. 121; Baker v. Stone, 136 Mass. 405; Bigelow on Estoppel, 448, 510; Sugden on Vendors, 507, 508; Whittington v. Wright, 9 Ga. 23; Hartfield v. Roper, 21 Wend. 615; Coal Co. v. Pasc, 79 Ill. 168; Brantly v. Wolf, 60 Miss. 420; Overton v. Bannister, 3 Hare, 503; Harrison v. Burns, 51 N.W. 165; Kilgore v. Jordan, 17 Tex. 341; Kemp v. Cook, 18 Md. 130. And, further, can the plaintiff maintain this suit having obtained defendant's money under the circumstances disclosed by the record. He makes or pleads no offer to return the consideration received, while he elects to repudiate his deed. Can it be done? Can he now put in motion a court of equity and use the shield of infancy to enable him to carry out the last act of his nefarious scheme and thereby free himself from the binding effect of the contract he designedly and fraudulently assumed. Schmitheimer v. Eiseman, 7 Bush (Ky.) 298; Adams v. Fite, 59 Tenn. (3 Baxter), 69; Ferguson v. Bobo, 54 Miss. 121; Sewell v. Sewell, 18 S. Rep. 162; Dickerson v. Gordon, 5 N.Y.S. 310. By the act of disaffirmance the infant loses the right to retain that which has been received, and if he hold on to the consideration after majority he is repelled in a court of equity. He can not use the shield of infancy as a sword. The court, by its special finding in this case, must have come to the conclusion that respondent still had the consideration received and adjudged it a lien on the land. Yeager v. Knight, 60 Miss. 730. The only ground upon which respondent bases his right to relief from the binding effect of his contract is, that what he stated and swore to be true when he deceived and misled appellant was in point of fact false.

McCullough & Peery and W. C. Ellison for respondent.

(1) This being a suit in equity and none of the evidence having been preserved, and there being no bill of exceptions, this court can not review the findings and decree of the circuit court. Roberts v. Bartlett, 26 Mo.App. 618 loc. cit.; Knox v. Sikes, 15 Mo. 235; Douglas v. Stephens, 18 Mo. 362; Carter v. Holman, 60 Mo. 498; Johnson v. Long, 72 Mo. 211; Turley v. Edwards, 18 Mo.App. 676; Field v. Crecelius, 20 Mo.App. 302; Soderberg v. Pierce, 33 Mo.App. 60. (2) When nothing is preserved by the record from which the appellate court can see whether the lower court erred or not, the judgment will be affirmed; for under such a state of the record the appellate court must presume that the trial court decided correctly. Mead v. Matson, 9 Mo. 773; Beckley v. Skrole, 19 Mo.App. 75. (3) If a record be susceptible of two interpretations, that will be given it which will sustain the judgment of the inferior court. Ins. Co. v. Cohen, 9 Mo. 416. (4) When the record is incomplete, all presumptions will be indulged in favor of the correctness of the proceedings and rulings of the trial court, and it will be presumed that the court had before it evidence which would support the judgment. Vaughan v. Railroad, 34 Mo.App. 141; Routsong v. Railroad, 45 Mo. 236; Porth v. Gilbert, 85 Mo. 125; Garth v. Caldwell, 72 Mo. 622; Christ v. Railway, 36 Mo.App. 663; Claflin v. Sylvester, 99 Mo. 280; Craig v. Scudder, 98 Mo. 664; Jayne v. Wine, 98 Mo. 404. (5) Where no exceptions to the action of the court in overruling the motion for new trial and in arrest of judgment are saved by a bill of exceptions, and no error appears on the face of the record proper, the supreme court will affirm the judgment. Wilson v. Haxley, 76 Mo. 345; Jackson v. Railroad, 80 Mo. 147; Cowan v. Railroad, 80 Mo. 423; Carpenter v. Railroad, 80 Mo. 446. Where a party fails to except to the action of the trial court in overruling his motion for new trial, he will be held to have acquiesced therein, and the supreme court will not consider matters called to the attention of the trial court by such motion, but will affirm the judgment if it be supported by the pleadings. Danforth v. Railroad, 27 S.W. 715; McIrvine v. Thompson, 81 Mo. 647. (6) Motions for new trial and in arrest of judgment constitute no part of the record; they must be incorporated into the bill of exceptions. Blount v. Zink, 55 Mo. 455. And they will not be considered, though copied into the record, if not made a part of, or preserved by, a bill of exceptions. Long v. Towell, 41 Mo. 398; Berkley v. Kobes, 13 Mo.App. 502; Story v. Bagsdale, 30 Mo.App. 196; McNeil v. Ins. Co., 30 Mo.App. 306; State ex rel. v. Burckhartt, 83 Mo. 430; Collins v. Saunders, 46 Mo. 389; Ratchford v. Creamer, 65 Mo. 49; Finkelnburg, App. Prac., pp. 66, 67. (7) No complaint is made that the petition does not state facts sufficient to constitute a cause of action, and under the allegations of the petition and the findings incorporated in the decree, there can be no question that the relief granted was warranted. Craig v. Van Bebber, 100 Mo. 584, and note in 18 Am. St. Rep. 573.

OPINION

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, 123 Mo. 96. This holds good of...