Scott & Bowker v. Boswell

BROADDUS, P. J. This is an action for fraud and deceit. The controversy grew out of a transaction in which plaintiffs and defendants became the purchasers of eighty-three acres of land situate in Jasper county, Missouri. The land belonged to Mrs. Theresa Wink, who resided in Oklahoma. On the 12th day of October, 1899, she executed and delivered to the defendant Boswell what is known as an option contract, giving him the exclusive right to .purchase said land at the price of $50 an acre, which option was to expire on the 6th day of January, 1900. This writing was filed for record in the recorder of deeds’ office of Jasper county on the 4th day of December, 1899, and was duly recorded. On the 27th day of December, 1899, defendant Boswell exercised his said option right, purchased the land from Mrs. Wink for the sum of $4,150 and received from her a deed to [604] the land for that consideration, which consideration was recited in the deed. The deed was filed for record on the 3rd of January, 1900. On the 29th day of December, 1899, two days after he had received the deed from Mrs. Wink, Boswell with his wife conveyed an undivided three-twentieths of the land to plaintiff R. S. Doling; an undivided one-twentieth to plaintiff James S. Doling; an undivided three-twentieths to plaintiff W. W. Whaley; an undivided one-twentieth to plaintiff John F. Bryan; an undivided one-tenth to plaintiffs, Scott and Bowker; and an undivided one-tenth to defendant John Patten. The matter remained in this condition until the year 1906, when the plaintiffs herein brought a partition suit in the circuit court of Jasper county against the defendants herein for a partition of the land, after which by mutual agreement it was divided between plaintiffs and defendants by exchange of deeds, by which division plaintiffs received forty-three acres and defendants forty acres thereof. After Boswell had received the option from Mrs. Wink and recorded the same, he met plaintiff Scott and the two had a conversation in which Boswell undertook to induce Scott to buy an interest in the land. Scott informed his partner, plaintiff Bowker, of said conversation, and the latter went to Joplin and out to the land and examined it. On the 6th day of November, 1899, plaintiffs, Scott and Bowker, entered into a written contract whereby they agreed to purchase from Boswell an undivided one-tenth of the land for $650. Sometime after Boswell had obtained said option he was in Springfield, Missouri, when he met plaintiffs, James M. Doling and W. W. Whaley, and had a talk with them about the land; afterwards they went to Joplin and went out in company with plaintiff Bowker and Boswell and examined the land; and afterwards they agreed to purchase the several undivided interests in the land which were afterwards conveyed to them by Boswell as stated. It does not appear that Boswell had [605] any talk with the plaintiffs, R. S. Doling and John F. Bryan, in person, about the land, but it does appear that James M. Doling represented them in the transac-' tion. It was not shown that defendant Patten had any connection with the plaintiffs in the transaction and the court dismissed him from the proceedings. The plaintiff Bowker testified that he met Boswell in company with plaintiffs, Doling and Whaley, in Joplin and had a talk about the land, in which Boswell said that there was an opportunity to buy the land from a widow woman who resided in the Territory; that the land could be bought for $6,500 and that he regarded it as very cheap; that he was unable financially at the time to buy the entire tract himself or put that much money in it; and that “if we would go in with him and buy this land, we would divide it up into tenths, he would take a certain part of the tenths, three or four tenths, and if the rest of us would take the balance we would go in and buy it.” He testified that the other parties present agreed to take certain interests in the land; and that Boswell said that it would take some little time to get the deed and abstract made and see the title was all right, and as soon as that was done that “he would notify us and we could send our money to the bank” in Joplin; and that “we would have to bear our proper part” of the expenses whatever they would be. Plaintiff Scott’s evidence corresponded with that of witness Bowker in regard to Boswell’s representations. James M. Doling testified that he represented R. S. Doling and Bryan in the transaction. Other evidence was introduced which showed conclusively that plaintiffs understood from defendant Boswell that he would buy the land at $6,500 for the mutual benefit of all parties and that they entered into the arrangement with the understanding that they were to get it at what it cost. The defendant tendered evidence to prove that the land was of greater value than the price the plaintiffs paid for it. The court refused the tender. The plaintiffs did [606] not learn that Boswell had the option on the land for the sum .of $4,150 until more than five years after they purchased their respective interests, hut less than ten years thereafter. The plaintiffs recovered judgment and defendant appealed. The defendant raises several questions on his appeal, but we shall only consider the one that we believe is decisive of the case, to-wit, the right of plaintiff to recover on the pleadings and testimony. The action was commenced more than five years after the date of the alleged fraud, but within five years from the alleged date of its discovery. The statute provides that actions for fraud shall be commenced within five years, “the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party at any time within ten years of the facts constituting the fraud.” The petition alleges that the fraud was not discovered until seven years after the purchase by plaintiffs of their respective interests. The suit was begun immediately thereafter. The contention of defendant is that as there is no allegation and proof thereof, that plaintiff used any diligence' to discover the alleged fraud, and no allegation and proof thereof, that defendant said or did anything to prevent the discovery of the alleged fraud, the plaintiff is not entitled to recover. It is held that, where plaintiff was in possession of the means of discovering the fraud from the time of its perpetration, and did not use them, the concealment of the facts by defendant by mere silence was not enough to^bar the running of the statute. And that the petition in buch case must charge, and the evidence show, that it' was by reason of something defendant did or said that the discovery of the fraud was not discovered sooner. - [Callan v. Callan, 175 Mo. 346.] “A party seeking to avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power he [607] will be held to have known it.” [Shelby County v. Bragg, 135 Mo. 291 1. c. 300.] Many other authorities might be cited to the same effect. The plaintiff relies upon Bent v. Priest, 86 Mo. 475. But that was a case where the fraud practiced by an agent was accomplished in secret and the court held that under such circumstances the cause of action did not accrue until the fraud was discovered. And the court used the following language in drawing the distinction between open and secret frauds, to-wit, “If the substantial facts constituting the fraud, in cases likeffhe one under consideration^ were open, it is believed, under the equity rules, the1 Statute of Limitations would have applied at once, hut if the facts were in their nature secret and unknown, it is believed the statute would not begin to run until they were discovered, there being no want of diligence on the. part of the complainant.” In this case, the alleged fraud was not of a secret nature, but an open one. It was a matter open to discovery to the plaintiffs at all times. At any time, by an inspection of the record, they could have learned from defendant’s option deed the price he was to pay for the land, and, further, by inquiry of the owner of the land they could have learned that fact. And there is no evidence tending to show that defendant did or said anything to prevent a discovery of the fraud; besides, there are no allegations of diligence or that defendant said or did anything to prevent discovery. It follows, therefore, that the court committed error in refusing to sustain defendant’s demurrer to the evidence. The cause is reversed. All concur.