Saunders v. McClintock

Gill, J. It will be seen from the foregoing statement of the case that Saunders, on July 8, 1887, sold and conveyed certain land to Cornell Crysler ; that a portion only of the purchase money was paid, the bal,ance thereof being evidenced by promissory notes secured by a deed of trust on the property ; that subsequently Cornell Crysler conveyed the said land to one Marks, who, on July 16, 1887, made a deed for the three-twelfths thereof to defendant McClintock, and that in said deed it was provided that McClintock should pay the three-twelfths of said incumbrance made by said Cornell Crysler for the benefit of Saunders; that said deed of trust was subsequently foreclosed, the property sold, but not in amount sufficient to pay the [223] notes thus secured, and thereupon plaintiff instituted this suit to recover of defendant the three-twelfths of said balance due, resting his action on the assumption by defendant in his deed from Marks. I. It is no longer an open question, that where a purchaser accepts and holds a conveyance of real estate wherein it is recited that said purchaser assumes and agrees to pay an incumbrance thereon, he thereby subjects himself to a liability to the holder thereof which may be enforced by a personal action. Fitzgerald v. Barker, 4 Mo. App. 105 ; 13 Mo. App. 192 ; 70 Mo. 685 ; 85 Mo. 13 ; 96 Mo. 661. It must be admitted, then, that plaintiff’s evidence, without more, made a clear case for the plaintiff. So, then, what we have to consider here is, as to the manner and matter of defense. Did the court err in the manner of submission thereof to the jury, and did such matter constitute a defense as to the claim of this plaintiff % II. Relating to the manner of submitting the defense of fraud which was pleaded by defendant in his. answer, the court, at the plaintiff’s instance, gave the following instruction, to which defendant objected : “2. Fraud is never to be presumed, but must be affirmatively shown by the defendant herein, upon whom the burden of proving the same rests ; and it must not only be proved by the defendant that the misrepresentations were made, but such misrepresentations must have been the proximate and immediate cause of defendant's action. It is not enough that they may have remotely contributed to it, or supplied a motive to the defendant to enter it. The representations complained of must have been the ground on which the transaction took place, and that defendant must have been injui’ed by said representations.” This instruction is justly subject to much adverse criticism, when applied to the facts of this case. It, in effect, told the jury that, unless they believed McClintock was moved to enter the promised syndicate and take the deed to the three-twelfths [224] thereof solely by reason of Bauerlein’s false representations, they should find for 'the plaintiff. “It is not enough,” declares the court, that “they may have supplied «motive to the defendant to enter into it; ” but such representations must have supplied the only motive for defendant's action — such representations “must have been the ground [the only ground] on which the transaction took place,” etc. Clearly, the-court, in this instruction, went beyond the limits defined in all the well-considered cases. It would seem sufficient that such false representations should constitute one of a number of material, moving causes to defendant’s, action. This rule was clearly announced in the Bungardt case, 18 Mo. App. 131, and the pages following, where this court, Judge Ellison delivering the opinion, used the following language, equally applicable here r “Where the evidence, as in this case, tends to show there were probably two causes or inducements operating-on a party, which causes him to make a trade or purchase — one emanating from fraudulent representations, of the defendant, and the other from some independent source — he' should respond in damages, or restore the property, as the case may be.” Numerous judges and text-writers have repeatedly so written ; but, to save-space, we now refer to the elaborate discussion and citation of authorities, with quotations therefrom, found in 18 Mo. App.at pages 131, 132, 133, 134, etc. Applying this law to the facts of this case, it may be well said that, although McClintock was in part induced to enter this arrangement by a desire on his part to speculate in real estate in and about Independence, yet a further motive may have presented itself and without, which he would not have gone into, the venture; but yet, under the court’s instruction to the jury, as above quoted, this last must have been the sole and only moving cause for his action, else he could not recover. McClintock may have been eager to invest, yet have declined unless joined by the others who were said to225 compose the syndicate. We must, therefore, hold that the court erred in giving said instruction. As to the third instruction, given at plaintiff’s-request, we discover no error. If Rauerlein’s representations had reference merely to a future event — an opinion expressed by him that certain parties would in the future join in and make up the talked-of syndicate, then such expressions, however much relied upon by defendant, would constitute no defense to the action. There was, too, some evidence tending to sustain this view. III. But it is contended by plaintiff ’ s counsel that, even if error was committed in given instructions to the jury, yet. the verdict and judgment should stand, because it was clearly for the right party. Counsel base their claim for this position on the ground taken that defendant was not entitled to this defense as against Saunders; that however gross the fraud practiced by defendant’s vendors, whereby he may have been’fraudulently induced to agree to pay a portion of plaintiff’s notes and deed of trust, yet, as the plaintiff' was entirely innocent of any complicity in the mat-teiy such fraudulent conduct would be no defense to this-action. This question may be thus stated. Can the-grantee, in a deed conveying real estate containing a clause that he assumes certain notes against the land as a part of the consideration, set up fraud by his grantor in procuring his acceptance of the.deed, in a suit on the-implied covenant by the holder of the notes at the time-the deed was accepted, he being no party to, and having no knowledge of, the fraud \ The authorities cited by defendant’s counsel fully sustain the affirmative-of this proposition. Benedict v. Hunt, 32 Iowa, 27; Judson v. Dada, 79 N. Y. 373; Dunning v. Leavitt, 85 N. Y. 30; Crowe v. Lewin, 95 N. Y. 423; Bull v. Titsworth, 29 N. J. Eq. 73 ; Parker v. Jenks, 33 N. J. Eq. 398. [226] Plaintiff, however, relies on the case of Fitzgerald v. Barker, 96 Mo. 661, as containing the doctrine that .no such defense can be made. We have carefully -examined and considered this decision, and are of the -opinion that it does not support plaintiff’s position when applied to the facts of the case at bar. The facts there were, in one important particular at least, substantially different from those here. Although in the last announcement by the supreme court (96 Mo. 662) It is not made clear as to whether or not Fitzgerald purchased the notes before or after Barker accepted the ■deed from Thomas (wherein Barker assumed an obligadion to pay off the incumbrance), still, as by reference to the same case reported in 4 Mo. App. 105 ; 13 Mo. App. 192; 70 Mo. 685; 85 Mo. 13, it appears that Fitzgerald became owner of the notes and incumbrance subsequent to Barker’s assumption, it might be well held, that in that case as. Fitzgerald bought the notes with Barker’s assumption, then of record, he (Fitzgerald) relied thereon in making the purchase, and it would be unjust to deprive him of such security by .reason of the fraud of Barker’s grantor, of which he, .Fitzgerald, had no notice. Now in the case at bar, it -appears without question (indeed, it could not be otherwise ) that Saunders acquired the notes sued on some days prior to McClintock’s acceptance of Mark’s deed, wherein he, McClintock, assumed payment of a portion of the incumbrance held by Saunders. When Saunders took the notes with deed of trust, there had been no undertaking by McClintock. He (Saunders), ■therefore, could not, and did not, rely on this assumption as a security for his claim. He never acted on the .faith thereof — never parted with anything on account of such assumption, and, hence, ought not to stand in Any better position than McClintock’s promisee, Marks, or those he represented. It would be the grossest Injustice to deny defendant the opportunity for this defense, and we know of no decision or text-book that [227] would deprive him of it. Since the preparation of the-foregoing we find ourselves sustained in this position by a late case decided by our supreme court. Ellis v. Harrison, 16 S. W. Rep. 198. Other questions suggested in counsel’s brief have been considered, but we deem the foregoing all that is necessary to be said in this opinion. For the error,, then, in giving the plaintiff’s second instruction, the-judgment must be reversed and the cause remanded- All concur.