Stewart v. Hadley

• Citation: 55 Mo. 235
• Parties: JANE STEWART, Respondent, v. JAMES HADLEY, et al., Appellants.
• Decision Date: 31 January 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 235

JANE STEWART, Respondent,

v.JAMES HADLEY, et al., Appellants.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Johnson Court of Common Pleas.

Johnson & Botsford, for Appellants.

I. It is well settled in this State, that in a suit on a note, given for the purchase money of a tract of land, a plea alleging the want of title in the plaintiff is a good defense to the note to the extent of the value of the land so conveyed without title. (Wagn. Stat., 1061, § 24; Barr vs. Baker, 9 Mo., 850; Copeland vs. Loan, 10 Mo., 266; Smith vs. Busby, 15 Mo., 387; Doan vs. Moss, 20 Mo., 297; Ash vs. Holder, 36 Mo., 163; Wellman vs. Dismukes, 42 Mo., 101; Beaupland vs. McKean, 28 Penn. St., 124; Ferguson vs. Huston, 6 Mo., 407; Watt vs. Scott. 7 Mo., 509; Cross vs. Noble, 67 Penn. St., 74; Negly vs. Lindsay, 67 Penn. St., 217.)

II. In a proceeding of this kind it is not competent for a party to dispute the terms of his deed by showing by parol evidence that he intended to convey less or other lands than his deed actually called for. (Seaman vs. Hodgebom, 21 Barb., 398; Howes vs. Barker, 3 John., 506; Tymason vs. Bates, 14 Wend., 671; Jackson vs. Croy, 12 John., 427; Renner vs. Bank of Columbia, 9 Wheat., 581; Taylor vs. Riggs, 1 Pet., 591; McBurney vs. Cutlew, 18 Barb., 203; Jackson vs. Vanderhayden, 17 John., 167; Jackson vs. Steinberg, 20 John., 49; Swick vs. Scars, 1 Hill, 17; Arnot vs. McClure, 4 Den., 41; Brewster vs. Power, 10 Paige, 562; Simonds vs. Beachamp, 1 Mo., 589; Hogel vs. Lindell, 10 Mo., 483; Henderson vs. Henderson, 13 Mo., 157.) This was a proceeding under the statute and not in equity. (Fithian vs. Monks, 43 Mo., 502.)

Crittenden & Cockrell, for Respondent.

I. The appellant having full knowledge that respondent did not own the acre of land at the time of the sale and that she did not then sell or pretend to sell the same, but declared that she had no control over it, he cannot with clean hands take advantage of the error of the scrivener in drawing the deed, and recover the value of the acre of land, and the church building thereon. No fraud is imputed to the respondent in the sale.

II. Appellants are certainly limited to the purchase money of the one acre and interest. In this State, this is the measure of damages. (Tapley vs. Labeaume's Exr., 1 Mo., 550; Martin vs. Long, 3 Mo., 392; Colgan vs. Sharp, 4 Mo., 263; Collins vs. Clamorgan, 6 Mo., 169, Dunnican vs. Sharp, 7 Mo., 71; Collins vs. Gamble, 10 Mo., 467; Reese vs. Smith, 12 Mo., 344; Henderson vs. Henderson, 13 Mo., 151; Beecher vs. Watkins, 13 Mo., 521; Mosely vs. Beach, 15 Mo., 322; Lawless vs. Collier, 19 Mo., 480; Dickson vs. Desere, Adm. 23 Mo., 157; Guinotte vs. Chouteau, 34 Mo., 154; Rawle Cov. [3 Ed.,] 319.)

III. The land, not including the one acre and the church building, was of the full value of the consideration money, to-wit: $3200. It does not appear that the church building and the acre of land induced appellant to make the purchase, and to permit him to secure a recoupment as he demands, would be inequitable and offensive. (Rawle Cov. [3 Ed.,] 658.)

IV. The words “more or less” in the deed from respondent to appellant are qualifying words as to quantity conveyed, and the deficiency of one acre, in the remote corner of the tract, bears no such erroneous disproportion to the quantity conveyed as will justify the prayer of the appellants. (27 Mo., 563.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover a balance on a promissory note, and to foreclose a mortgage executed to secure the payment of the amount due thereby. Jane Stewart (the plaintiff) in the month of January, 1866, sold and conveyed to the defendant, James hadley, a quarter section of land in Johnson county, supposed to contain 160 acres, for the sum or price of twenty dollars per acre or the aggregate sum of $3,200, fifty dollars of which was paid and the note sued on executed for the balance; the said Hadley and his wife at the same time reconveying the land to the plaintiff to secure the payment of the amount due by said note. The deed by which the land was conveyed to Hadley contained the covenant of seizen and covenants of general warranty. At and before the conveyance of the land by plaintiff to Hadley, and in fact before the plaintiff even became the owner of the land, one acre thereof situated in one corner of the tract had been conveyed to certain trustees for church purposes, who then held the title to said acre of land. A house for worship had been erected on said land, and was then occupied and used by a congregation of the denomination of “Cumberland Presbyterians.” No exception of this acre of land held by these trustees was made in the deed by which the land was conveyed to hadley. This suit was brought to recover the balance of the purchase money for said land as evidenced by said promissory note, and to foreclose the mortgage executed by the defendants to secure the same. The defendants set up, by way of counter-claim as a defence to the action, a breach of the covenant of seizin and warranty contained in the deed from plaintiff to Hadley, by reason of the failure or the want of title in the plaintiff to the acre of land upon which said church building is erected, and they charge that said acre of land with the improvements thereon was at the time of the execution of said deed of the value of one thousand dollars, and judgment is asked thereon. The plaintiff by replication to defendants' answer admits, that the acre of land had been conveyed to the church trustees as is charged, and that they were the owners thereof, and had erected a house thereon at the time of the conveyance to Hadley; but she states that, previous to the sale and conveyance of the land by her to Hadley, she pointed out to said Hadley the boundary lines of said acre of land, and then told him, that the boundary lines of the land then being sold to him did not include said acre of land upon which the church was erected, and that it had been previously conveyed to trustees for said church was well understood by Hadley at the time of his purchase; that he purchased said quarter section of land with the exception of the acre upon which the church stood, and that he consented thereto, and agreed to give the sum of $3.200 in gross for said tract of land less the one acre for church purposes; but that owing to a mistake of the scrivenor in drawing the deed, the whole of said tract of land was inserted in the deed with the addition of the words ““more or less.” The plaintiff further avers that, at the time she conveyed the land to Hadley, she did not know that the deed was so worded as to include the whole of said quarter section of land, nor did she know said fact until after the commencement of the suit. She alleges that the defendant James hadley well knew at the time he purchased the land, that he was to receive only that part of it remaining unsold and unconveyed at the time; that, at the time of the sale and conveyance by plaintiff to defendant, she was not in the possession of, nor had she the control of, the one acre of land so used for church purposes; but that it was notoriously and visibly in the possession of the trustess of said church, which fact was known to defendant, and that she was only in possession of the remainder of said tract of land, and only sold and conveyed that part to defendant and delivered the possession of the same to defendant, which was all well known to defendant. The plaintiff also denies, that the value of said acre of land, with the improvements, was at the time one thousand dollars. The issues made by these pleadings were tried by the court, a jury having been waived by the parties.

The plaintiff introduced witnesses, whose evidence tended to prove that the land conveyed to Hadley by the plaintiff was at the time of the conveyance worth the amount of the consideration paid therefor, without including the acre of land on which the church building was erected; that said land was worth $20 per acre, that defendant had after his purchase sold part of the land, and in the deed reserved the church property, telling the purchaser that he had a suit pending about the church property, that, when it was decided, he would give a quit claim deed for that; that, if he failed in his suit, it would give him time to pay the mortgage debt. The plaintiff was introduced as a witness on her own part. Her evidence was, in substance, that, at the time of the sale by her of the land to defendant, she resided on the land in the only dwelling house thereon, that there was a church house on the north-east corner of the land, which had been there for many years, that the church was in plain view of the dwelling house, that defendant came to see her twice about the land before he made the purchase, he asked the price of the land, she told him $20 per acre, he came back in about a week, when she told him that the church was on the tract of land, that she did not own the church and had nothing to do with it or the acre of land on which it was sitnate, that she did not know whether the acre of land had been deeded to the church or not, that Hadley said he would take the land, that they would go to town and make the deed in a few days. She afterwards went to Warrensburg, and made the deed. She told Hadley that she would deed the land just as it was deeded to her, that she did not sell the church house, and told Hadley particularly, that she would not sell it, that she did not estimate the value of the church in affixing a price on the land, that she told Hadley so afterwards, that it was not her intention to convey the church, and that she did not receive any consideration therefor; that the defendant was to pay her $20 per acre for the land; that there was nothing said about the value of the church being included, that Hadley always told her that he did not want the church; that he told her two or three times, the last time after...