Wilson v. Henderson

• Decision Date: 20 December 1916
• Docket Number: No. 17517.,17517.
• Parties: WILSON et al. v. HENDERSON et al.
• Court: Missouri Supreme Court

191 S.W. 72

WILSON et al. v. HENDERSON et al.

No. 17517.

Supreme Court of Missouri, Division No. 1.

December 20, 1916.

Appeal from Circuit Court, Carroll County; Frank P. Divelbiss, Judge.

Action by R. G. Wilson and another against William Henderson and another. From judgment for defendants, plaintiffs appeal. Affirmed.

On December 9, 1912, the above-named plaintiffs filed two suit in the circuit court of Carroll county, Mo., against above-named defendants. One of said actions was ejectment to recover possession of 9.5 acres of land, located in the town of Bosworth, Carroll county, aforesaid. The first count of second action was to enforce specific performance of an alleged contract between the parties hereto, dated June 4, 1912, relating to the exchange of defendants' 9.5 acres of land aforesaid for 140 acres of plaintiffs' land in said county. The second count was for $250 alleged to be due plaintiffs under said contract. The third count was for the recovery of $250 claimed to be due plaintiffs on account of an alleged forfeiture upon the part of defendants in failing to comply with said contract.

Defendants filed identical answers in both cases, and, aside from the general denial contained in each, it is averred with great particularity that plaintiffs and their agents, on June 4, 1912, while they and defendants were upon the 140 acres aforesaid, made false and fraudulent representations to defendants for the purpose of inducing them to make said exchange in respect to the value, condition, and boundaries of said land; that they were inexperienced and ignorant of above matters, and, relying upon the truth of said representations, and believing them to be true, they entered into a contract for the exchange of the properties aforesaid, and on said 4th day of June, 1912, executed a warranty deed to plaintiffs for the 9.5 acres aforesaid; that said deed was left in the possession of plaintiffs' agents, for delivery to plaintiffs, on the consummation of said contract of exchange, and on the delivery of possession of said 140 acres to defendants; that thereafter defendants discovered the falsity of plaintiffs' representations aforesaid, and demanded a cancellation of said contract; that thereafter the said agents of plaintiffs, without the knowledge or consent of defendants, by plaintiffs' directions and with their connivance, filed the warranty deed executed by defendants as aforesaid for record in the office of the recorder of deeds for said county, and the same was on August 24, 1912, recorded in Book 207 at page 588 of said records; that on the same date plaintiffs' said agents, without the knowledge or consent of defendants, and without their permission or procurement, filed for record in said recorder's office a deed from plaintiffs to defendants purporting to convey to them said 140 acres of land; that said last-mentioned deed was duly recorded in said Book 207 at page 589; that defendants had no knowledge of the recording of said deeds; that the record of same was procured by plaintiffs in consummation of a fraudulent and wrongful purpose to defraud defendants of said 9.5 acres of land. It is further averred that defendants are now in possession of said 9.5 acres aforesaid; that plaintiffs are now, and at all times since the execution of said contract, have been, in the possession of said 140 acres of land, and refused to deliver possession thereof to defendants.

The answers conclude with a general prayer for relief, and ask for a decree canceling the contract aforesaid, as well as the deed made by the defendants to plaintiffs aforesaid, and likewise ask that plaintiffs be divested of the title to said 9.5 acres, and that the same be vested in defendants. The latter tendered with said answer a deed to plaintiffs for the 140 acres aforesaid, etc.

Plaintiffs' reply denies the allegations of new matter set up in said answers. It sets out the terms of said contract of date, June 4, 1912, as claimed by plaintiffs, and alleges that, pursuant to said contract, defendants executed and delivered to plaintiffs the warranty deed for said 9.5 acres, which was duly recorded as aforesaid. It is further averred that plaintiffs, upon the request of defendants, executed and delivered to them the deed aforesaid for said 140 acres of land; that after the execution and delivery of said deed defendants executed a deed of trust against said land (140 acres) to the Mutual Benefit Life Insurance Company to secure the payment of the notes in said deed of trust described; that defendants went into possession of a part of said 140 acres conveyed to them by plaintiffs, did some plowing thereon, and that they went into possession of a part of the residence and part of the barn situated on said premises; that thereafter defendants abandoned such possession of said premises and refused plaintiffs the possession of said 9.5 acres. It is averred that plaintiffs tendered to defendants, as required by the terms of the contract, the possession of all said land, and demanded of defendants the possession of said 9.5 acres; that defendants refused said demand, and have ever since refused to deliver possession of said premises to plaintiffs.

Both of the above cases, by stipulation filed at the January term, 1913, of the Carroll circuit court, were, by consent, consolidated and tried as one case.

It appears from the evidence that defendants, who are twins, were 21 years of age on September 17, 1911. Prior to the negotiations with plaintiffs these boys had had but little business experience. They inherited from their father the 9.5 acres of land aforesaid, and bought the dower interest of their mother in same. Their father died May 4, 1912.

On June 4, 1912, defendants' 9.5 acres were estimated to be of the value of $5,000, subject to a deed of trust thereon for $2,000. Plaintiffs were the owners and in possession of the 140 acres of land in said county, subject to a deed of trust in the sum of $3,750 at 6 per cent. interest in favor of W. D. Pinney, and also a second deed of trust for $650 at 7 per cent. interest in favor of B. E. and W. J. Wilson, sureties. The consideration of the deed to defendants for the 140 acres is placed at $9,450, although the trial court found the real value of said land to be $5,600. Woodyard, the agent of plaintiffs, told defendants the 140 acres was worth $9,450.

It appears from the evidence that Woodyard and Patton were engaged in the real estate business in Bosworth, and that both plaintiffs and defendants had listed their respective tracts of land with said firm for sale or exchange. Woodyard was a lawyer, and Patton was a cousin of plaintiff R. G. Wilson.

On June 4, 1912, defendants, at the instance of Woodyard and Patton, went to look at the 140 acres of land aforesaid. They found Woodyard and Patton at the farm, and Wilson was in the field plowing. Woodyard and Patton went over the greater portion of said land with the defendants. Before they left the place, the defendants, in the presence of Woodyard and Patton, had a conversation with Wilson in regard to the condition of said land, its northern boundary, etc. As there is a sharp conflict between the testimony of plaintiffs and defendants as to what occurred and what representations were made in respect to said 140 acres of land on above occasion, and as this relates to one of the main issues in the case, to avoid repetition, we will consider this subject in the opinion.

The defendants returned to Bosworth on the evening of June 4, 1912, and on said date signed a written contract for the exchange of said properties. The plaintiffs afterwards signed said contract, and it was left in the possession of Woodyard and Patton. There is an irreconcilable conflict between plaintiffs' evidence and that of defendants as to whether the original contract was materially altered after its execution, without the knowledge or consent of defendants, by erasing the word "June" and inserting in lieu of same the word "September" in that part of the contract relating to the time when possession was to be delivered to defendants.

The original contract, as offered by plaintiffs, provided that they should convey to defendants the 140 acres supra for the consideration of $9,450, and were to take, as part of said consideration, the 9.5 acres of defendants for the price of $5,000, subject to a deed of trust for $2,000. Plaintiffs were also to take a note for $1,800, signed by D. A. Carman and Minnie Carman, if not disposed of by defendants, and if taken by plaintiffs. Defendants were to make said $1,800 draw 7 per cent. interest instead of 6 per cent., as written in said note. Two hundred and fifty dollars was to be paid by defendants September 15, 1912. Both parties were to prepare and deliver on or before September 15, 1912, abstracts showing good title to said 9.5 acres and said 140 acres. Leaving out of consideration that part of the contract relating to possession of said 140 acres, it further provides for a forfeiture of $250 should either of said parties fail to comply with said contract. Warranty deeds were executed by the parties hereto for said 9.5 acres and the 140 acres aforesaid. These deeds were left with Woodyard & Patton.

About the 16th of August, 1912, defendants notified plaintiffs and said Woodyard & Patton that they would not carry out said agreement or contract because of plaintiffs' alleged failure to give possession of the 140 acres as provided for in the contract, and because of misrepresentations of plaintiffs and said agents in regard to said land. The defendants thereupon got from Woodyard & Patton the keys to their buildings located on said 9.5 acres on August 16, 1912, and at said time notified them that they would not comply with said contract. Thereupon the plaintiffs caused their agents, Woodyard & Patton, to record the deed from defendants to them for the 9.5 acres on August 24, 1912, although the contract gave the respective parties...