Taylor v. Short

Decision Date07 December 1891
Citation107 Mo. 384,17 S.W. 970
PartiesTAYLOR et al. v. SHORT.
CourtMissouri Supreme Court

Plaintiffs, husband and wife, exchanged a Missouri farm with defendant for a half interest in Texas land, which the husband had previously examined. Defendant had given contradictory statements as to the ownership of the Texas land, but the husband stated he did not care, so long as he got a half interest. After the trade the husband rented the Missouri farm from defendant, and, about a year thereafter, defendant paid a balance due on the trade, and plaintiffs made a corrected deed to him. Shortly after, the husband paid the rent due, and rented the farm for another year, at the expiration of which he surrendered the premises. From the time of the exchange to the beginning of the action, the husband tried to sell the Missouri farm for defendant, and 18 months after the trade the husband endeavored to borrow money on the Texas land, sending a note and deed of trust to defendant for that purpose. Subsequently plaintiffs traded the Texas farm for another in the same state. The husband testified that from the time of the trade he suspected that defendant had made fraudulent representations to him as to the ownership, price paid for, and value of the Texas land; that prior to the corrected deed he had received information confirming his suspicions, and before adjusting the rent and accepting the second lease he had consulted counsel as to the institution of proceedings for the alleged fraud. Held, in an action to rescind the original transaction of exchange, that plaintiffs waived the fraud by not electing to rescind upon the first discovery of fraud, and that the right to rescind did not revive by the subsequent discovery of some incident of the fraud.

Error to circuit court, Pettis county; RICHARD FIELD, Judge.

Action by Celia S. Taylor and husband against U. F. Short to rescind a contract for the exchange of lands. Judgment for defendant. Plaintiffs appeal. Affirmed.

Saml. Boyd, for plaintiffs in error Jackson & Montgomery, for defendant in error.

SHERWOOD, J.

This proceeding is one in equity, begun in August, 1887, for the purpose of rescinding a transaction whereby plaintiffs, who are husband and wife, exchanged a farm in Pettis county, Mo., for a tract of land in Fannin county, Tex., and to vest in plaintiffs the title of the Pettis county farm. The exchange of lands had been effected in November, 1884, and resulted in the legal title to the Pettis county farm becoming vested in the defendant, whom the petition charges with having effected the exchange and obtained the title to the Pettis county farm by means of fraud. The circuit court, after hearing all the evidence, held the same insufficient as a basis for equitable relief, and dismissed the petition, and plaintiffs have brought the cause up on error.

Briefly told, the facts are that in November, 1884, Taylor, the husband, at the instance of Short, the defendant, went down to Texas and examined the land in company with Short, and, being satisfied, told Short, already there, to go on and close the trade; and so it was that a contract was made whereby Short was to pay Taylor $2,500 to relieve the Pettis county farm of an incumbrance, that farm being valued in the trade at $5,000, and, so doing, was to have a half interest in the Fannin county tract, and, in order to consummate this matter, the deed to the Pettis county farm was made to the defendant, he representing this to be necessary. Taylor finally obtained a deed to half of the Fannin county land, and afterwards exchanged it for land in Hood county, Tex. Owing to some misdescription of the Pettis county farm, a new deed was made to the defendant, but this was in 1885, after the plaintiff's husband had been informed that the defendant had put in the Fannin county land to him at four dollars per acre, when it only stood him in hand at two dollars per acre. The defendant also rented the Pettis county farm to Taylor, who thereafter occupied it as the defendant's tenant, paying rent as such. Short took the title to the Fannin county land in himself, buying, it seems, from one Simston, and then executed a deed to plaintiffs for one-half, as agreed, which deed was never recorded. The Fannin county tract — 1,316 acres — was valued at $3.50 per acre, or $4,600, and the Pettis county farm — 208 acres — at $5,000, and Taylor expected that the respective pieces of property would be put in at more than their cash values. When Taylor went down and looked at the Fannin county land, Short told him he must have the deed to the Pettis county farm made to him, and Taylor thought this looked suspicious, but nevertheless plaintiffs made the deed, as requested, to Short, November 7, 1884. At first Short stated that he had told the owner of the Texas land that the Missouri land belonged to him, (Short,) but afterwards told Taylor that he had traded for the land himself. He asked Short how he had got into it, and Short said that was not a matter for Taylor to investigate, and he made no further inquiry. It did not make any difference to him. He knew that Short had represented that he had become the owner of the Pettis county land; told Taylor he had bought it, and Taylor wrote to him to fix it any way he pleased; it did not make any difference to him, (Taylor;) it was immaterial, because, whichever way the deeds were made, the plaintiffs got what had been agreed upon, viz., a half interest in the Fannin county land, for their equity in the Pettis county farm. The day they went to see the land, and several times afterwards, Taylor asked Short for the name of the man from whom he was getting the Fannin county land, and Short said he had forgotten the name. Taylor thought that was very suspicious. After having completed the transaction as above shown, Taylor became the tenant of Short, renting the Pettis county farm at $450 for the first year and $350 for the next year. In the month of August or September, 1885, the plaintiffs were informed, through a friend, a Mr. Calfus, who had been in Dallas, Tex., where Short lived, that Short had bought the Fannin...

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