Toler v. Judd

• Decision Date: 02 December 1914
• Docket Number: No. 16941.,16941.
• Citation: 262 Mo. 344,171 S.W. 339
• Parties: TOLER et al. v. JUDD et al.
• Court: Missouri Supreme Court

171 S.W. 339

262 Mo. 344

TOLER et al. v. JUDD et al.

No. 16941.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

1. DESCENT AND DISTRIBUTION (§ 91) — ACTIONS BY HEIRS — RECOVERY OF PERSONAL ASSETS.

A suit to cancel, on the ground of fraud and undue influence, a contract whereby one who had since died intestate exchanged a stock of merchandise for certain lands, cannot be maintained by the heirs, since the personal property vested in the administratrix.

2. DESCENT AND DISTRIBUTION (§ 91) — ACTIONS BY HEIRS — PARTIES.

The refusal of the administratrix to bring such suit does not entitle the heirs to maintain it joining the administratrix as a defendant therein, since the heirs have a complete remedy by action on the administratrix's bond, or by proceedings in the probate court for her removal.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Suit by W. L. Toler and another against James A. Judd and others. From a judgment for defendants upon demurrer to plaintiffs' bill, the plaintiffs appeal. Affirmed.

This is a bill in equity instituted by the plaintiffs against the defendants, in the circuit court of Macon county, to set aside and cancel a certain contract made and entered into by and between one E. F. Toler and James A. Judd, by which the former traded a certain stock of goods at McFall, Mo., to the latter for certain real estate, and other considerations, located in Macon county. There was a demurrer filed to the bill which was by the circuit court sustained, and, the plaintiffs declining to plead further, judgment was duly rendered against them. In due time and in proper form the plaintiffs appealed to this court.

This state of the record requires this court to pass upon the sufficiency of the bill, and the demurrer filed thereto.

The bill is as follows:

"Plaintiffs for their course of action state: That on and prior to January 31, 1910, one E. F. Toler was the owner of a general stock of merchandise of the value of $16,500, then located and situated in a certain store building occupied by him in the town of McFall, in Gentry county, Mo. That the defendant Judd was then the owner in fee of certain lands located in Macon county, Mo., to wit: 15 acres off the south end of the west half of the northwest quarter; and the east half of the northwest quarter, and the west half of the northeast quarter, and the southeast quarter of the northeast quarter, and the north half of the southeast quarter, all in section 6, township 57, range 17, containing 295 acres more or less, subject to certain deeds of trust aggregating about $4,000 principal. That said lands were then not worth to exceed $25 per acre, or $7,375 in aggregate, and the said Judd's equity of redemption therein was not worth to exceed $3,375. That the said E. F. Toler was then, and for a long time prior thereto had been, broken down in health, physically and mentally weak, of unsound mind, incapable of transacting business, easily susceptible to persuasion, influence, and suggestions, and in constant fear and dread of death, and suffering from a mortal illness, as the defendants and each of them then well knew.

"Plaintiffs further state that the defendant James A. Judd, well knowing the said condition of the said E. F. Toler physically and mentally, with the intention, design, and purpose to fraudulently cheat and defraud the said E. F. Toler out of his said stock of merchandise, did falsely and fraudulently represent to the said E. F. Toler that the said lands of the said James A. Judd were of the value of $60 per acre, and, with the fraudulent purpose aforesaid, proposed to the said E. F. Toler that he would sell and exchange his equity in said lands in Macon county, Mo., at the valuation of $13,700, taking the said Toler's stock of goods in exchange therefor at the valuation of $16,500, and would settle the difference in favor of said Toler of $2,800 in certain notes that said Judd then held on persons living on or in the neighborhood of said lands in Macon county, Mo., which said Judd falsely and fraudulently represented to said Toler were good, solvent, and collectible notes.

"Plaintiffs further state that said E. F. Toler was not acquainted with the said lands of the said Judd in Macon county, Mo., and was wholly ignorant of the value of said land, and was wholly ignorant of whether the said notes for the said sum of $2,800 were solvent and collectible, all of which the defendant Judd then well knew, and the said Judd importuned and constrained the said E. F. Toler to make said exchange of said stock of goods for the said lands in Macon county, Mo., and the said $2,800 in notes, the said E. F. Toler being wholly unable to resist the importunities, persuasions, and constraint of the said Judd for that purpose, as the said Judd then well knew, and said Toler wholly relying upon the said representations of the said Judd, and being unable to resist his importunities and persuasions, was induced thereby to sell and deliver to the said Judd his said stock of goods in exchange for said lands and said notes for $2,800, and did on January 31, 1910, so wholly relying upon said representations of the said Judd, and being so fraudulently influenced by the said Judd, as aforesaid, sell and deliver to him his said stock of goods, and received in exchange therefor a deed from the said James A. Judd and his wife conveying said lands to him, the said E. F. Toler, and Ida E. Toler, the defendant, his wife, subject to four certain deeds of trust upon said lands to secure the payment of four several notes therein described, aggregating the sum of $4,000 principal, and the said Judd then assigning and transferring without recourse to the said E. F. Toler and Ida E. Toler, his wife, said notes aggregating the said sum of $2,800; and plaintiffs aver that the said representations of the said James A. Judd were wholly false, that said lands were not worth to exceed $25 per acre, and the equity of redemption of the said James A. Judd therein was not worth to exceed $3,375, and the said notes for the sum of $2,800 were not collectible, and the makers thereof were insolvent.

"Plaintiffs further state that they do not know and are unable to state the names of the makers of said notes.

"Plaintiffs further state that, immediately upon effecting said exchange, the defendant James A. Judd took possession of the said entire stock of goods so owned by said E. F. Toler, and removed the same from said town of McFall and has converted the same to his own use.

"Plaintiffs further state that the said E. F. Toler, of the said illness of which he was then suffering, as aforesaid, died on or about March 1, 1910, intestate and without issue, being at the time of his death a resident of Gentry county, Mo., and left surviving him his widow, the defendant Ida E. Toler, and the plaintiff W. L. Toler, his brother, and Mary J., his mother, his only surviving heirs; that the father of E. F. Toler had theretofore died; and that said E. F. Toler had no sisters or brothers, or their descendants surviving him, other than his brother W. L. Toler.

"Plaintiffs further state that, immediately upon the death of said E. F. Toler, the defendant Ida E. Toler took out letters of administration and was appointed administratrix of the estate of E. F. Toler, by the probate court of Gentry county, Mo., and duly qualified, and has ever since been, and now is, acting as such administratrix; that plaintiffs have requested the said Ida E. Toler to join with them in this action, and have been unable to obtain her consent, and she has refused to join with them in this...