Simpson v. Burnett

• Decision Date: 09 April 1923
• Docket Number: No. 23226.,23226.
• Citation: 252 S.W. 949,299 Mo. 232
• Parties: SIMPSON v. BURNETT.
• Court: Missouri Supreme Court

252 S.W. 949

299 Mo. 232

SIMPSON v. BURNETT.

No. 23226.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Motion for Rehearing Overruled June 11, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by James P. Simpson against S. D. Burnett. Judgment for, plaintiff, and defendant appeals. Reversed and remanded.

L. T. Dryden and Burrus & Burrus, all of Independence, and Gossett, Ellis, Dietrich & Tyler, of Kansas City, for appellant.

Prince, Harris & Beery, of Kansas City, for respondent.

Statement.

DAVIS, C.

This is an action in damages for fraud, brought in the circuit court of Jackson county to the June term, 1920, wherein plaintiff recovered judgment against defendant for $4,976.25 compensatory and $5,000 punitive damages. The motions for a new trial and in arrest of judgment being overruled, defendant appeals.

The petition alleges, in substance: That on or about February 7, 1916, plaintiff purchased a certain farm in Andrew county. That on November 10, 1917, Bertina H. Boyles filed suit against plaintiff praying that he be divested of an undivided one-fourth interest in said land, and offered strong evidence of her legal demand. That Bertina Boyles offered incontestible proof that a purported deed of October 18, 1915, from James A. Harlin, to certain named heirs of Martin D. Boyles, deceased, in plaintiff's claim of title, was a forgery. That defendant procured the execution of and caused the forged deed to be recorded, while suppressing a valid unrecorded deed from Harlin to Bertina H. Boyles, coming to defendant's possession while acting as administrator de son tort of Bertina's husband's estate, and as a direct result plaintiff was, on January 16, 1919, compelled to compromise and settle with Bertina to stop costs and the loss of a onefourth interest in said farm. That the itemized expenditures amounted to $2,976.75. That the procuring of said false and fraudulent deed by defendant was a willful, intentional, and malicious act and a gross fraud, and that as a direct result plaintiff employed lawyers and incurred costs, expending the above amount, and was further damaged in prosecuting the litigation, causing him worry, vexation, and mental distress in sum of $2,000. Prayer for judgment for $4,976.75 and for $5,000 punitive damages.

Defendant filed a general demurrer, and on the court overruling it, filed and went to trial on a general denial.

It appears from the record that one Martin D. Boyles, who died in March, 1891, devised the Andrew county land to his wife, who died July 19, 1915, for life, with remainder to his five children, one of whom, Cora E. Burnett, was the wife of defendant. In November, 1893, the interest of George M. Boyles, his son, was sold and acquired by his four brothers and sisters. Another son, Bloomer C. Boyles, formerly the legitimate husband of Bertina, later divorced, but at his death in March, 1912, her common-law husband as the probate court found, left no descendants. In 1908, under a judgment and execution, the interest of Bloomer C. Boyles in said land was sold to James A. Harlin for $200, for which he received a sheriff's deed, acknowledged in open court, but never recorded.

In February, 1913, defendant was appointed administrator of Bloomer Boyles' estate, but was later removed and Bertina appointed administratrix, for that she was his widow. In November, 1915, in Andrew county, William C. Boyles brought stilt to partition the land, all possible parties being made defendants, except said Harlin and said Bertina. The petition alleged that Bloomer C. Boyles died intestate, leaving no descendants and no widow.

As the county records showed Harlin's interest in the land, defendant was advised that in order to make good title by partition, it was necessary to have said Harlin execute a deed. Defendant testified, on being so advised, that he made inquiry, was directed to a man who claimed to be Harlin, and from him obtained a quitclaim deed. The facts relative to the procuring of the quitclaim deed are: Defendant was told by his attorney where Harlin could be found. He went to the address, and a lady there told him that he would find Harlin at a saloon on West Twelfth street, she thought, 216 or 218. Going into the saloon and finding a man standing there, he asked him if he knew James A. Harlin. He said he did. Defendant said: "Well, sir, I would like to see him on business." The man replied: "What to you want with him?" Said defendant: "I told him I wanted to see him in regard to some real estate." "Oh," said the man, "that Andrew county land?" Defendant said: "Yes, that's it." He told me he was the man. Defendant asked him what he would take to make a quitclaim deed to that Andrew county land. He said $100. Defendant asked him if he would make it for any less, and he said he would not. So the defendant informed Mr. Williams (attorney for plaintiff in partition suit) that he had found tile man, and the deed could be secured for $100. Mr. Williams told him to buy it. Upon a telephone conversation, defendant went to the Washington Hotel, saw the man, made a deal with him, and procured a quitclaim deed, which was drawn up by a Mr. Wade. The man met defendant in the Schukert Building. The man took the quitclaim deed, was gone about two hours, when defendant again met him, gave him the money for the deed and gave it to Mr. Wade for inspection, and later delivered the deed to Mr. Williams at Savannah. The deed was introduced in evidence. Defendant denied that he signed the name James A. Harlin to the deed.

The property was partitioned and sold to plaintiff. Defendant was paid $372.65 for services and to reimburse him for money paid for quitclaim deed. The decree provided that the proceeds of the sale be divided one-sixteenth to George and five-sixteenths each to William, Cora, and Anna, devisees of Martin C. Boyles. Plaintiff and his wife purchased the land at the partition sale for $9,720. His wife died November 19, 1919.

On February 7, 1916, Bertina filed an ejectment suit for the land, claiming an undivided one-fourth interest and damages. A second count sought to quiet title and set aside the alleged forged deed from Harlin to the defendants in the partition suit. There was a trial and the jury failed to agree. Plaintiff then settled that case with Bertina by paying her on January 15, 1920, $2,252.30. The settlement was evidenced by a writing, in which Bertina covenanted not to sue, agreed to dismiss her suit, and to get a quitclaim deed from Harlin to herself, which she did on January 29, 1920.

Bertina testified that in May, 1909, Harlin deeded her the property. She placed that with the sheriff's deed to Harlin in her sewing machine drawer, where it remained until December, 1911. She gave these deeds to her husband, Bloomer, who was going to Savannah, to be recorded. She never saw this deed from Harlin to her but once afterward in the probate court at Kansas City in October, 1919, in the possession of defendant and his attorney, Mr. Kadison. On the sheriff's deed to Harlin, and the deed from Harlin to her, neither of which were ever recorded, she based her claim to the land and sued Simpson.

Daisy E. Curp, a notary public, testified that on May 12, 1909, she acknowledged Mr. Harlin's signature to a quitclaim deed, as shown by her notary's record, and that she also had a vague recollection of it.

James A. Harlin testified that he bought a one-fourth interest in the Andrew county land, at execution sale on June 18, 1908, and received the sheriff's deed therefor by mail. He produced an envelope in which he stated the sheriff's deed was mailed. Later, by quitclaim, signed and acknowledged, for $250, he conveyed the land to Bertina Boyles. On January 28, 1920, he conveyed by a second quitclaim, stated as in lieu of the former deed, the same land to Bertins Boyles. He denied that he signed the quitclaim deed of October 18, 1915, obtained by defendant, or that it was his signature.

Such other facts as we deem Important will be forthcoming later.

Opinion.

I. Defendant complains of the action of the trial court in ruling adversely on his demurrer to the petition and the motion in arrest of judgment. He says there is no allegation in the petition that plaintiff relied on the alleged forged deed, or that Bertina or Harlin acquired or owned any interest in the land.

This is an action for fraud. While the petition alleges that the deed of October 18, 1915, from Harlin to the heirs of Martin Boyles, was forged and directly procured by defendant, and that his act in procuring it was intentional, willful, malicious, and a gross fraud, it fails to state that the deed, was known by defendant to be forged, that it was procured by him with the intention of deceiving the proposed purchaser at the partition sale, to wit, plaintiff, that he was deceived thereby, and that by his reliance upon the forged deed plaintiff was induced to act to his injury. Remmers v. Remmers, 217 Mo. loc. cit. 557, 117 S. W. 1117. While there may be sufficient in the petition to charge defendant with knowledge that the deed was forged, with intent to deceive the purchaser, it contains no allegation from which we may infer

that plaintiff was deceived, and by virtue of the deception was induced to act to his injury by reliance on the forged deed. As was said in Morrow v. Franklin, 289 Mo. loc. cit. 563, 233 S. W. loc. cit. 224: "Scienter is an element necessary to be pleaded and proved in legal actions for fraud and deceit." So with deception and reliance. If plaintiff was not deceived or did not rely on the verity of the forged deed, he may not recover. Fraud is voidable, for the subject may deem it to his advantage, after discovery, to ratify or consummate the transaction. As the allegations that plaintiff was deceived and that he relied on the forged deed were omitted, the petition is insufficient. 27 C. J. p. 36.

We think the petition ought to definitely...