Summers v. Abernathy

• Decision Date: 11 April 1911
• Citation: 136 S.W. 289,234 Mo. 156
• Parties: SUMMERS et al. v. ABERNATHY et al.
• Court: Missouri Supreme Court

136 S.W. 289

234 Mo. 156

SUMMERS et al. v. ABERNATHY et al.

Supreme Court of Missouri, Division No. 2.

April 11, 1911.

1. TRUSTS (§ 204)—ACTION BY CESTUI QUE TRUST—CANCELLATION OF DEED—GROUNDS.

Where a trustee of land was induced by the false representations of a third person to convey the land to him without consideration, and the deed was a cloud on the title of the beneficiaries, the beneficiaries could sue for the cancellation of the deed and for the recovery of the land.

2. TRUSTS (§ 204) — ACTION BY CESTUI QUE TRUST—CANCELLATION OF DEED—GROUNDS.

The rule that false representations constituting a ground of relief must have been made to the person injured is subject to the exception that one not appearing in a transaction induced by fraud may recover, where, in fact, he is the real party in interest, and, where a trustee was induced by the fraud of a third person to convey the trust estate to him, the beneficiaries could sue for relief.

3. EQUITY (§ 66)—MAXIMS—DOING EQUITY— RELIEF FROM FRAUD.

Where one acquired title from a trustee in fraud of the beneficiaries, the fact that the trustee joining the beneficiaries in a suit for relief based on the fraud had also practiced fraud on the beneficiaries concerning the subject-matter of the controversy did not defeat the suit, under the maxim that he who seeks equity must do equity.

4. LIMITATION OF ACTIONS (§ 19)—CANCELLATION OF DEED.

Where a trustee, in 1898, took title to land by sheriff's deed and conveyed the land in 1899, a suit by the beneficiaries, commenced in 1907, to set aside the deed from the trustee for fraud was not barred by limitations; the ten years' statute (Rev. St. 1909, § 1879) being applicable to the case.

5. EQUITY (§ 71)—LACHES—EFFECT.

Mere lapse of time short of the statutory period of limitation does not bar a claim to equitable relief, where the right is clear and there are no countervailing circumstances.

6. CANCELLATION OF INSTRUMENTS (§ 10)— INADEQUACY OF REMEDY AT LAW.

Where the fraud and want of consideration relied on as grounds for the cancellation of a deed and the recovery of the land thereby conveyed did not appear on the face of the deed, nor on any record on which the validity of the deed depended, there was no adequate remedy at law, and a suit to cancel the deed and to vest the title in the party aggrieved was the proper remedy.

7. TRUSTS (§ 204)—JUDGMENT—RELIEF.

Where the petition, in a suit for the cancellation of a deed obtained by fraud from a trustee holding the title in trust for a widow and children of the deceased husband, alleged that the fraudulent grantee had obtained the interests of two of the children, a decree granting relief must protect the interests of the children, including the rights of minor children and the interests legally acquired by the grantee, and must ascertain the homestead and dower rights of the widow.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by Z. T. Summers and others against Jerome Abernathy and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

K. C. Spence and Andrew W. Hunt, for appellants. Rudolph Houck and A. T. Welborn, for respondents.

KENNISH, P. J.

On January 20, 1907, plaintiffs filed in the circuit court of Stoddard county a petition, alleging that a deed executed by the plaintiffs Moses Proffer and Eliza Proffer, his wife, conveying certain land in that county to the defendant Jerome Abernathy, was obtained by fraud and without consideration. The prayer of the petition was that said deed be canceled, the defendants divested of the title to said land, and said title vested in plaintiffs.

Upon a trial of the cause the circuit court found the issues for the plaintiffs, canceled the deed, divested the defendants of the title to the land, and vested the same in the plaintiff Moses Proffer, in trust for the plaintiff Louisa J. Summers. From this judgment, the defendants appealed to this court. No bill of exceptions was preserved and filed, and therefore only the record proper is before us for review. As the errors assigned by appellants all relate to the sufficiency of the petition, and the conformity of the judgment to the pleadings, the petition, and the finding, judgment and decree will be set out at length.

The petition, omitting formal parts, is as follows:

"Plaintiffs state that Elisha Summers died intestate on the ____ day of ____, 1894, leaving as his widow, the plaintiff Louisa J. Summers, and as children and heirs at law and in equity, the plaintiffs Z. T. Summers, Ada Garner, Marinda Hopkins, Walter Summers, and John Summers, the defendant Lizzie Abernathy, W. F. Summers, now deceased, and Marinda I. Summers (now Bailey).

"Plaintiffs state that on November 5, 1890 and at the time of his death, the said Elisha Summers was the owner in fee and seised and possessed of, among others, the following described lands, lying and being situate in Stoddard county, Mo., to wit: All that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter and all of the southwest quarter of the northeast quarter, except seven acres in the northeast corner thereof, all in section eight, township twenty-seven, range eleven east; that on the said 5th day of November, 1890, said Elisha Summers and Louisa J. Summers, his wife, conveyed the lands by mortgage deed to Stoddard county as security for a loan of two hundred dollars secured by the said Elisha Summers from the school fund, and that at the time of the death of the said Elisha Summers the said mortgage deed was still unsatisfied and still incumbered said land.

"Plaintiffs further state that during his last sickness it was the request of said Elisha Summers that plaintiff, Moses Proffer, should pay off the said mortgage deed and receive as his sole compensation for so doing the said southwest quarter of the northeast quarter, except the said seven acres in the northeast corner; that said Moses Proffer was willing to comply with said request of Elisha Summers, procured an order of the county court to the sheriff of Stoddard county, directing him to sell the said land, became the successful bidder at the sale, and, on March 16, 1898, received from the sheriff of Stoddard county a deed conveying to him, Moses Proffer, all the land above described and in said mortgage deed contained.

"Plaintiffs state that said Moses Proffer took the title to the said land, to wit: All that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, unto himself by the said sheriff's deed for the sole purpose of reconveying the same to the plaintiff Louisa J. Summers; that being, as he understood, in accordance with the request of said Elisha J. Summers, deceased.

"Plaintiffs state that the defendant herein, Jerome Abernathy, knowing that it was the intent of the said Moses Proffer to convey the said land to Louisa J. Summers, or to some other person at her direction, went to the said Moses Proffer, and, with intent to injure and defraud all the parties plaintiff to this suit, falsely and fraudulently represented to said Moses Proffer that said Louisa J. Summers had agreed and directed that said Moses Proffer should make a deed to the said land, to wit: All that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, to him, the said Jerome Abernathy. Plaintiffs state that the said representations of the said Jerome Abernathy were false and known by him to be false, and that the said Louisa J. Summers had not agreed or directed that the said Moses Proffer should deed the said land to said Jerome Abernathy, but that plaintiffs Moses Proffer and Eliza S. Proffer believed said representations were true, and relying upon them, and without any other or further consideration, duly executed, acknowledged, and delivered to the said Jerome Abernathy, a warranty deed, in common form, conveying to him the said lands, to wit: All that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven east, in Stoddard county, Mo., said deed bearing date May 1, 1899, and being recorded at page 233 of Book 29, one of the land records of said Stoddard county, Mo.

"Plaintiffs Moses Proffer and Eliza S. Proffer state that they acknowledged that whatever title, interest, or estate they have in and to the said land, to wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, they hold in trust for the purpose of carrying out the said request of the said Elisha Summers, deceased, and that they expect to and will execute their said trust as soon as the said deed from them to the said Jerome Abernathy shall have been annulled and canceled, by conveying whatever interest they may have in and to the said land to Louisa J. Summers, or to whomsoever she shall direct that it be conveyed, and that they join in this suit for the purpose of securing the annulment and cancellation of said deed.

"Plaintiff Louisa J. Summers acknowledges that whatever title, interest, or estate, if any, except her quarantine, dower, and homestead rights, she has or may have, under her present rights in and to the said land, she holds in trust for the heirs of said Elisha Summers, and that she intends and will execute said trust by proper conveyances as soon as the cloud cast upon the title to the said land by the said deed from Moses Proffer and his wife to Jerome Abernathy is removed.

"Plaintiffs state that defendant Lizzie Abernathy refuses to join as plaintiff in this suit,...