Siler v. Kessinger

• Decision Date: 03 April 1941
• Docket Number: No. 6274.,6274.
• Citation: 149 S.W.2d 890
• Parties: SILER et al. v. KESSINGER.
• Court: Missouri Court of Appeals

149 S.W.2d 890

SILER et al. v. KESSINGER.

No. 6274.

Springfield Court of Appeals. Missouri.

April 3, 1941.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Action by M. C. Siler and M. Catherine Siler against F. M. Kessinger, to recover money allegedly procured by defendant through false and fraudulent representations made to plaintiffs. From a judgment for defendant, plaintiffs appeal.

Judgment affirmed.

Fred W. Carden and Collins & Pierce, all of Springfield, for appellants.

Haymes & Dickey, of Springfield, for respondent.

FULBRIGHT, Judge.

This is an action to recover money which plaintiffs alleged they wrongfully paid defendant as a result of false and fraudulent representations made to them and upon which they relied at the time the money was paid. Defendant filed his demurrer to the original petition which the trial court sustained. An amended petition was filed, whereupon defendant renewed his demurrer, which was by the trial court sustained. Plaintiffs then filed their second amended petition to which defendant filed his demurrer, and the court likewise sustained said demurrer and rendered its final judgment in favor of defendant, from which judgment plaintiffs duly appealed to this court.

The second amended petition, omitting caption and signatures, reads as follows:

"For cause of action plaintiffs state that on the 16th day of February, 1931, they were the owners of the following described land in Webster County, Missouri, to-wit: The Northeast quarter of the Northeast quarter of Section 21, Township 28, Range 29; that on that date the plaintiffs were ready to sell the said land, had a buyer for same, and were ready to consummate the deal; that the defendant on said date claimed to plaintiffs that he was the holder of a valid deed of trust on said land, given, as defendant contended, to further secure the payment of a note plaintiffs were obligated to pay, which note was secured by deed of trust on other lands then owned by the plaintiffs, and that unless the plaintiffs would pay to him the sum of $1600.00 he would refuse to release the deed of trust on the land above described and would prevent plaintiffs from selling the said land; that plaintiffs made an investigation as to the validity of the deed of trust the defendant claimed to hold and did find a purported deed of trust of record, although as to when or how the defendant obtained said deed of trust plaintiffs knew nothing at that time.

"Plaintiffs say that the representations and statements made by the defendant as to the said deed of trust on the land above described were false, were known by the defendant to be false at the time they were made and were made for the purpose and with the intention that plaintiffs should believe them to be true and be deceived thereby and act thereupon; that plaintiffs at the time believed said statements to be true and acted upon said statements and under the mistaken belief of facts paid the defendant the sum of $1600.00 to release said deed of trust on said land; that in truth and in fact the defendant was not on the 16th day of February, 1931, the owner nor holder of a valid deed of trust on the land above described and was not entitled to receive any sum from plaintiffs on said date to release a deed of trust on said land; that there was not on the 16th day of February, 1931, a valid deed of trust against the land above described to secure the payment of any note which plaintiffs were obligated to pay.

"Plaintiffs say that after the payment of the aforesaid $1600.00 they requested the surrender of the deed of trust defendant claimed to hold and made diligent effort to obtain the same from him; that the defendant kept promising them he would surrender said deed of trust to them, but finally, after repeated requests from the plaintiffs to surrender said deed of trust, defendant refused to surrender the said deed of trust to them. Defendant has never yet surrendered to plaintiffs said deed of trust.

"Plaintiffs state that on or about the 14th day of February, 1938, they learned for the first time of evidence that would prove there was no valid deed of trust on the said land on the 16th day of February, 1931, and learned for the first time the defendant had wrongfully obtained from them by means of the statements above set forth the sum of $1600. That by reason of the said false and fraudulent statements the plaintiffs have been damaged in the sum of $1600.00 and interest on said sum since the 14th day of February, 1931.

"Wherefore, plaintiffs pray judgment against the defendant for the sum of Sixteen Hundred ($1600) Dollars, together with interest thereon since the 14th day of February, 1931, and for their costs."

The two grounds of the demurrer are:

"(1) Because said petition does not state facts sufficient to constitute a cause of action.

"(2) Because the petition shows on its face that the cause of action mentioned therein did not accrue within five years before the commencement of this action and shows on its face that said cause of action did not accrue within five years before the discovery by plaintiffs, as a matter of law, of facts constituting the alleged fraud and is therefore barred by the Statute of Limitations."

Defendant contends that plaintiffs' petition shows on its face that their cause of action is barred by the five-year statute of limitations, Section 862, R.S.Mo.1929, Mo. St.Ann. § 862, p. 1143, and in part reads as follows: "Within five years: * * * fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud."

It is undisputed that plaintiffs' cause of action, if any, accrued when they first discovered the fraud or when, by the exercise of such diligence as ordinarily prudent persons, they, under the circumstances, should have discovered it and that such action must be brought within five years of the discovery of the facts constituting fraud.

"The general doctrine relative to discovery of fraud, so as to take it without the bar of the statute, is to plead facts sufficient to relieve the pleader of the presumption of actual knowledge obtaining at the consummation of the agreement. A general charge of ignorance at one time and of subsequent...