BLAIR, C.
Since the appeal was taken the original plaintiff has died and the cause has been revived in the name of Anna Kendall, his sole heir at law.
This is a suit to cancel deeds whereby plaintiff had conveyed to defendant one hundred and forty acres of land in Howell county.
The negotiations which resulted in the execution of the deeds sought to be canceled began with the acquaintance of the parties hereto and both had their origin upon the occasion of plaintiff’s first visit to a place in Chicago frequented by persons- known as “traders,” the vocation of most, if not all, of whom seems to have been the dealing in stocks, bonds, mortgages, deeds, etc., mainly in what defendant terms ‘ ‘ unsight unseen trades. ’ ’
It is fairly inferable from the record that this phrase possessed, among these traders, a meaning not greatly different from that which it has among schoolboys, i. e., each high contracting party seeks to offer something so valueless that he cannot lose however worthless the thing he receives may be. There was this difference, however; among schoolboys the rule “whole blade or no trade” sometimes prevails — among the “traders,” above mentioned, however, we find no evidence of any corresponding restriction upon their freedom of contract.
There is no evidence plaintiff was advised of the custom prevailing in this busy mart of trade in which he was, at the age of seventy-nine- years, introduced to defendant by one Low, who was a “trader” and whose assets consisted of a valise filled with mining stock, [265]*265ancient .railroad bonds, etc., and a willingness to trade for anything anyone might .offer.
That plaintiff did not know the rules and customs under which his new aequaintenances operated is evidenced by the fact that he offered actual property, to which he had good title, and by the further fact that he tried to get defendant to “put some money into, the trade. ’ ’ On this last proposition he was at first rather sternly rebuked, though defendant did “put in” twenty-five dollars after confirming, by visits to Indiana and Missouri, the astonishing suspicion that plaintiff really owned the land he claimed in these States.
Plaintiff .owned the land involved in this suit, twenty acres (subject to mortgage) in or near South Bend, Indiana, and eight lots in Denver, Colorado.
To plaintiff defendant represented that he owned' a one-half interest in 10,000 acres of land in Kentucky and exhibited an abstract of title and a letter from an abstractor of the county in which the land was. said to be located, which letter glowingly pictured the wealth of timber above and coal beneath the tract described.
This land defendant agreed to convey to plaintiff in exchange for the twenty acres at South Bend (subject to mortgage), eight lots in Denver and the one hundred and forty acres involved in this suit. Plaintiff’s properties were, in the trade, valued at $500' more-than defendant’s land, and the parties differ as to whether this sum was to be paid in cash or secured by mortgage on the Howell county (Missouri) tract. The pretended consummation of this exchange resulted’ in the conveyance to defendant of all he bargained for and all plaintiff had, while plaintiff received twenty-five dollars in money, some oil stock and a deed in which the description is as follows:
“A one-half interest in the following described real estate: Beginning at a point on the Big Sandy river below the southern line of James H. Mallory; [266]*266running thence north 42 degrees E. 1900 poles to a stake; thence south 48 degrees E. 900 poles to> a pine; thence south 48' W. 1900' poles to a point in the Big Sandy river marked by a double stump; thence along the Big Sandy river to the point or place of beginning, containing ten thousand acres, more or less,” in Johnson county, Kentucky.
There is evidence no James TI. Mallory then lived or ever had lived in Johnson county, and also direct evidence, received without objection, that there was no possibility of locating any land by the description in the deed.
Plaintiff subsequently demanded $500', representing the difference in trading valuations, as stated, but defendant contended plaintiff had agreed to accept a mortgage on eighty acres of the Howell county land, securing a note for $500 to be executed by a “straw man” of plaintiff’s selection. Defendant claimed also to have discovered that the mortgage on the South Bend property was $500 greater than had been represented, and insisted in offsetting this- excess against plaintiff’s demand. Low’, “a trader” par excellence, as, the term is above defined, then began to take an active interest and, for plaintiff’s “interest” in the Kentucky land, “traded” him some railroad bonds, secured by a fourth mortgage on the property of the “South Carolina Railway Company,” which bonds showed no transfer to Low, though by their terms they were unassignable except by transfer .on the company’s books, certified on the bond itself by the company’s transfer agent. The last transfer had been made about twenty years prior to the transaction between Low and plaintiff. Defendant knew of this “trade” at the time but testified he had no interest in it, though immediately thereafter he' and Low and plaintiff engaged in another “trade” whereby plaintiff received seventy-five dollars and another railroad bond and acknowledged satisfaction of the $500 mortgage defendant had [267]*267agreed to execute to him and agreed to pay the $500 mortgage on the South Bend property which was overlooked in the original agreement.
The judgment was for plaintiff, canceling the deeds to defendant.
Suit to Fa" u^'e Doefed = Consideration,
I. It is averred in the answer that the abstract of title to the Kentucky land, exhibited to plaintiff, showed title in defendant, and defendant testified he had had the “title” thereto for ten years, having acquired it from the persons named in the abstract as his grantors. Plaintiff testified defendant told him he owned the one-half interest in the 10,000 acres in Johnson county, Kentucky, and agreed to convey that interest to him, and the finding of the truth of that testimony is fully justified.
The deed executed by defendant is absolutely void by reason of the fact that it describes no land at all, no point of beginning having been fixed (2 Devlin on Deeds [3 Ed.], sec. 1011a), and it also appearing from both the deed and testimony offered that, it is impossible to identify any land in Johnson county, Kentucky, as falling within the description given. The description in the deed was not taken from the abstract.
In fact, therefore, defendant has not complied with the agreement to execute to plaintiff a deed for a one-half interest in the Kentucky land. "Whether his title thereto was good or bad plaintiff had a right to contract for a conveyance thereof and a right to insist upon the fulfillment of that contract. Whatever interest defendant had (and the answer avers the abstract shows title in him and he testifies he had the title) plaintiff contracted for it. The fact that defendant refused to execute a warranty deed does not excuse him from executing the deed he agreed to execute.
The instrument in evidence is no deed at all, and defendant has failed' to perform the agreement on his [268]*268part.
Free access — add to your briefcase to read the full text and ask questions with AI
BLAIR, C.
Since the appeal was taken the original plaintiff has died and the cause has been revived in the name of Anna Kendall, his sole heir at law.
This is a suit to cancel deeds whereby plaintiff had conveyed to defendant one hundred and forty acres of land in Howell county.
The negotiations which resulted in the execution of the deeds sought to be canceled began with the acquaintance of the parties hereto and both had their origin upon the occasion of plaintiff’s first visit to a place in Chicago frequented by persons- known as “traders,” the vocation of most, if not all, of whom seems to have been the dealing in stocks, bonds, mortgages, deeds, etc., mainly in what defendant terms ‘ ‘ unsight unseen trades. ’ ’
It is fairly inferable from the record that this phrase possessed, among these traders, a meaning not greatly different from that which it has among schoolboys, i. e., each high contracting party seeks to offer something so valueless that he cannot lose however worthless the thing he receives may be. There was this difference, however; among schoolboys the rule “whole blade or no trade” sometimes prevails — among the “traders,” above mentioned, however, we find no evidence of any corresponding restriction upon their freedom of contract.
There is no evidence plaintiff was advised of the custom prevailing in this busy mart of trade in which he was, at the age of seventy-nine- years, introduced to defendant by one Low, who was a “trader” and whose assets consisted of a valise filled with mining stock, [265]*265ancient .railroad bonds, etc., and a willingness to trade for anything anyone might .offer.
That plaintiff did not know the rules and customs under which his new aequaintenances operated is evidenced by the fact that he offered actual property, to which he had good title, and by the further fact that he tried to get defendant to “put some money into, the trade. ’ ’ On this last proposition he was at first rather sternly rebuked, though defendant did “put in” twenty-five dollars after confirming, by visits to Indiana and Missouri, the astonishing suspicion that plaintiff really owned the land he claimed in these States.
Plaintiff .owned the land involved in this suit, twenty acres (subject to mortgage) in or near South Bend, Indiana, and eight lots in Denver, Colorado.
To plaintiff defendant represented that he owned' a one-half interest in 10,000 acres of land in Kentucky and exhibited an abstract of title and a letter from an abstractor of the county in which the land was. said to be located, which letter glowingly pictured the wealth of timber above and coal beneath the tract described.
This land defendant agreed to convey to plaintiff in exchange for the twenty acres at South Bend (subject to mortgage), eight lots in Denver and the one hundred and forty acres involved in this suit. Plaintiff’s properties were, in the trade, valued at $500' more-than defendant’s land, and the parties differ as to whether this sum was to be paid in cash or secured by mortgage on the Howell county (Missouri) tract. The pretended consummation of this exchange resulted’ in the conveyance to defendant of all he bargained for and all plaintiff had, while plaintiff received twenty-five dollars in money, some oil stock and a deed in which the description is as follows:
“A one-half interest in the following described real estate: Beginning at a point on the Big Sandy river below the southern line of James H. Mallory; [266]*266running thence north 42 degrees E. 1900 poles to a stake; thence south 48 degrees E. 900 poles to> a pine; thence south 48' W. 1900' poles to a point in the Big Sandy river marked by a double stump; thence along the Big Sandy river to the point or place of beginning, containing ten thousand acres, more or less,” in Johnson county, Kentucky.
There is evidence no James TI. Mallory then lived or ever had lived in Johnson county, and also direct evidence, received without objection, that there was no possibility of locating any land by the description in the deed.
Plaintiff subsequently demanded $500', representing the difference in trading valuations, as stated, but defendant contended plaintiff had agreed to accept a mortgage on eighty acres of the Howell county land, securing a note for $500 to be executed by a “straw man” of plaintiff’s selection. Defendant claimed also to have discovered that the mortgage on the South Bend property was $500 greater than had been represented, and insisted in offsetting this- excess against plaintiff’s demand. Low’, “a trader” par excellence, as, the term is above defined, then began to take an active interest and, for plaintiff’s “interest” in the Kentucky land, “traded” him some railroad bonds, secured by a fourth mortgage on the property of the “South Carolina Railway Company,” which bonds showed no transfer to Low, though by their terms they were unassignable except by transfer .on the company’s books, certified on the bond itself by the company’s transfer agent. The last transfer had been made about twenty years prior to the transaction between Low and plaintiff. Defendant knew of this “trade” at the time but testified he had no interest in it, though immediately thereafter he' and Low and plaintiff engaged in another “trade” whereby plaintiff received seventy-five dollars and another railroad bond and acknowledged satisfaction of the $500 mortgage defendant had [267]*267agreed to execute to him and agreed to pay the $500 mortgage on the South Bend property which was overlooked in the original agreement.
The judgment was for plaintiff, canceling the deeds to defendant.
Suit to Fa" u^'e Doefed = Consideration,
I. It is averred in the answer that the abstract of title to the Kentucky land, exhibited to plaintiff, showed title in defendant, and defendant testified he had had the “title” thereto for ten years, having acquired it from the persons named in the abstract as his grantors. Plaintiff testified defendant told him he owned the one-half interest in the 10,000 acres in Johnson county, Kentucky, and agreed to convey that interest to him, and the finding of the truth of that testimony is fully justified.
The deed executed by defendant is absolutely void by reason of the fact that it describes no land at all, no point of beginning having been fixed (2 Devlin on Deeds [3 Ed.], sec. 1011a), and it also appearing from both the deed and testimony offered that, it is impossible to identify any land in Johnson county, Kentucky, as falling within the description given. The description in the deed was not taken from the abstract.
In fact, therefore, defendant has not complied with the agreement to execute to plaintiff a deed for a one-half interest in the Kentucky land. "Whether his title thereto was good or bad plaintiff had a right to contract for a conveyance thereof and a right to insist upon the fulfillment of that contract. Whatever interest defendant had (and the answer avers the abstract shows title in him and he testifies he had the title) plaintiff contracted for it. The fact that defendant refused to execute a warranty deed does not excuse him from executing the deed he agreed to execute.
The instrument in evidence is no deed at all, and defendant has failed' to perform the agreement on his [268]*268part. He actually received all plaintiff agreed to convey to Mm, one hundred and sixty acres of land and eight city lots, and now seeks to retain it despite his own failure to perform the contract. His failure to comply entitles plaintiff to rescind. [2 Warvelle on Vendors, sec. 828.]
Failure ofConveyance.
Also, the principle wMch entitles a vendee, on failure of title or failure of the deed as a conveyance, to resist the payment of the purchase money or recover payments already made (Owens v. Rector, 44 Mo. l. c. 392; Wheeler v. Standley, 50 Mo. 509) entitles plaintiff to rescind and recover his land.
Inadequacy of Consideration.
Further, the shocMng inadequacy of the consideration (taking into account the absolute nullity of defendant’s deed) together with the circumstances of imposition and fraud disclosed by the record, affords additional support of plaintiff’s right to rescind. [Obst v. Unnerstall, 184 Mo. l. c. 392.]
Total Failure of Consideration,
The cases cited affirming the adequacy of considerations of agreements when the “least benefit or advantage” accrues to the one party or injury or disadvantage to the other are not applicable. In this case plaintiff has not received the consideration defendant contracted should pass to him, while the eases cited belong to a class involving no such situation.
Conveyance Party.'rd
II. So far as concerns the contention that plaintiff is estopped to rescind because he attempted to convey the Kentucky land to Low, it will suffice to gay that plaintiff had no interest he could convey, and defendant cannot complain because of the ineffectual attempt to do so. It would not have been necessary for plaintiff to have offered to reconvey to defendant before bringing this suit. In the circumstances such reconveyance would [269]*269have been “a nugatory act and unavailing for any purpose.” [Lawless v. Collier’s Exrs., 19 Mo. l. c. 485.]
Plaintiff acquired no interest under the deed to' him .and there was, consequently, nothing he could convey to Low or reconvey to defendant. '•
The attempted conveyance was a nullity and, with respect to the Kentucky land, left both plaintiff and defendant exactly as they were before. Whatever .Low’s rights may be by reason of the ineffectual character of plaintiff’s deed to him, defendant was in no way affected thereby.
Tender.
III. It is contended plaintiff’s suit must fail because the petition does not tender to defendant the one hundred dollars in cash and some oil stock received from him in the transaction. As to the latter item the weight of the evidence is that it was worthless. The trial court must have so found to render the judgment it did, and we do not feel disposed, on this record, to overturn that finding. Plaintiff, however, received one hundred dollars in cash. For this, alone, in truth, he conveyed to defendant the South' Bend property, the Howell county land, worth about, $2000, .and eight lots in Denver, concededly worth $240'.. These last mentioned lots defendant still retains, and this decree, of course, does not disturb his title to them. Defendant testified the South Bend property was sold under the mortgage upon it.
The eases cited by defendant’s counsel apply the rule that in actions at law a tender is a condition precedent to the rescission of a release, of the cause of action upon which recovery is sought.
In this case the question of tender was not raised in the trial court in any manner, and it clearly appears from the facts in evidence that defendant had and retained the lots in Denver, worth at least two hundred and forty dollars. This is a suit in equity, and on the [270]*270grounds that the question was not raised below and that the court could not, on this record, have justly decreed any return to defendant, the point must be ruled .against him. [Peak v. Peak, 228 Mo. l. c. 556, 557.]
Deed notAcknowledged,
IV. After the trade with defendant, plaintiff, acting on bad advice, attempted to execute a deed to one McWeeney for the land in suit. It is contended plaintiff did not own the land and could not sue. McWeeney reconveyed to plaintiff, omitting to acknowledge the deed, but signing and delivering it prior to the institution of this proceeding. This was sufficient as between the parties (Vincent v. Means, 207 Mo. l. c. 715; Genoway v. Maize, 163 Mo. l. c. 231, 232), and defendant is in no position to complain. The subsequent acknowledgment by McWeeney does not affect the question. Whether the deed to McWeeney was void under the rule that a mere right to sue for fraud upon the assignor is not assignable (Ryan v. Miller, 236 Mo. l. c. 514, 515) it is not necessary to decide.
V. The trial court’s refusal to require plaintiff to elect between the counts of his petition did not constitute error. Counsel does not argue the question or attempt to point out any inconsistency between the counts. The petition presents the ordinary case of separate counts drawn to meet possible variations in the proof. There is no repugnancy within the rule (Rinard v. Railroad, 164 Mo. l. c. 284), and but one cause of action is stated and the same relief is sought in both counts.
Admission of unnecessary Evidence.
VI. In view of what has been said it becomes unnecessary to discuss the competency of the testimony concerning defendant’s title to the Kentucky lands, the justice of the decree being fully established without recourse to that testimony.
[271]*271
Standing in Equity.
Tlie suggestion that plaintiff’s hands are unclean because he placed large values on his properties is without merit. The record shows defend-ant was not deceived and demonstrates he was not injured thereby. Defendant cannot very consistently harmonize this contention with his resistance to rescission. The rule invoked has no such application as suggested.
The net result of the “puffing” on both sides was the acquisition by defendant of nearly $2500' worth of land for $100.
It may be added that it is unnecessary, in view of what has been said, to discuss in detail the question whether the allegations of fraud were proved. The judgment is affirmed.
Brown, C., concurs.
PER CURIAM.- — The foregoing opinion of Blair, C., is adopted as the opinion of the court,
All of.the judges concur.