Woolum v. Tarpley

• Decision Date: 02 July 1917
• Docket Number: No. 18588.,18588.
• Parties: WOOLUM v. TARPLEY et al.
• Court: Missouri Supreme Court

196 S.W. 1127

WOOLUM v. TARPLEY et al.

No. 18588.

Supreme Court of Missouri, Division No. 1.

July 2, 1917.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Donna F. Woolum against James J. Tarpley and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.

This action was originally commenced in the circuit court of Jasper county, Mo., on April 8, 1912, and was tried under the third amended petition. Plaintiff alleges therein that she was the owner in fee simple of lot 464 in South Carterville Mining & Smelting Company's Fifth addition to the city of Carterville, Mo., of the reasonable market value of $800; that defendant James J. Tarpley was the owner of the N. W. ¼ of the N. E. ¼ of section 13, township 38, range 10, located in Maries county, Mo., of the reasonable market value of $5 per acre; that defendants Tarpley, Davis, and Potter, through false and fraudulent representations in respect to the value, quality, and condition of the Maries county land, induced her to exchange her Carterville property for the above land; that defendant Tarpley represented the value of said land to be $800, when it was only worth $200; that he represented said land to contain good merchantable timber, and informed her that it was good farming and grazing land; that said representations were false, and known to be so by said Tarpley when made; that said land contained no good timber, was rocky, had but little soil thereon, and was unfit for either farming or grazing purposes. She alleges that she was ignorant of either the value or condition of said land, and never saw same; that she relied upon the representations of said Tarpley, believed them to be true, and accordingly conveyed her Carterville property to him in exchange for said land. She alleges that on July 12, 1912, she delivered to said Tarpley a warranty deed for the Carterville property aforesaid, and received from him a warranty deed for said 40 acres in Maries county, Mo. She further alleges that said Tarpley, on January 21, 1913, executed and delivered to J. Fred McDearmon a mortgage, with power of sale, on said Carterville property to secure the sum of $300. The petition contains this statement:

"Your petitioner admits that the said mortgage is a valid lien upon the said premises."

The petition alleges that plaintiff offered to reconvey said land to defendant Tarpley, and demanded of him a deed back for her Carterville property; that said defendant refused to accept her deed, and likewise refused to deed back to her the Carterville real estate. She further alleges that said Tarpley took possession of the Carterville property on July 12, 1912, and has since said date retained possession thereof; that said Carterville lot has a residence thereon, and that the reasonable monthly value of same is $8; that she has never taken possession of said 40 acres and that it has no rental value. She avers that this was commenced on April 8, 1912; that on April 9, 1913, she filed in the office of the recorder of deeds of Jasper county, Mo., her notice of lis pendens at 8:08 o'clock in the forenoon of said April 9, 1913; that on April 10, 1913, said Tarpley and wife executed and delivered to defendant Robert McCombs and wife a warranty deed to the Carterville property aforesaid, which was filed for record in the above recorder's office on April 11, 1913.

The petition concludes with a prayer in which the court is asked to divest said defendants, and each of them, of the title to said Carterville property, and to vest the same in plaintiff, subject to said McDearmon mortgage. She also prays for $300 damages, with interest thereon at 8 per cent from January 21, 1913, by reason of the McDearmon incumbrance placed by said Tarpley on the Carterville property. She also asks $8 for the monthly value of said Carterville property from July 12, 1912, to the time of trial. The petition concludes with a prayer for general relief. The petition likewise charges that the defendants Davis and Potter aided and assisted said Tarpley in perpetrating upon her the fraud aforesaid.

Robert McCombs filed his separate answer, and alleged therein that he bought the Carterville property without notice and for value, etc. The remainder of the answer is a general denial. James J. Tarpley and John L. Davis filed a joint general denial, but afterwards said Tarpley filed a separate amended answer, containing a general denial, with a plea of laches, etc. Plaintiff's reply denies the allegations, of said answers. The defendant John Potter was not served with process. He should either have been served, and brought into court, or the cause should have been dismissed as to him.

We will consider the evidence relating to the charges of fraud, as far as may be necessary, in the opinion. The trial court found the issues in favor of defendants and entered its judgment accordingly. Plaintiff filed motions for a new trial and in arrest of judgment, both of which were overruled, and the cause duly appealed to this court.

Paul A. Ewert, of Joplin, for appellant. W. J. Owen and Hugh Dabbs, both of Joplin, for respondents.

RAILEY, C. (after stating the facts as above).

We have carefully read and reread the record in this cause, and find from the evidence, that plaintiff was the owner in fee of the Carterville property described in petition, that the reasonable value thereof was $800, and that the monthly value of same is $8. It appears from the evidence that the 40 acres of land in Maries county belonged to the defendant James J. Tarpley, and that the reasonable market value of said...