Case Details
- Judge(s)
- Ray
- Status
- Published
- Procedural Posture
- Appeal from Vernon Circuit Court; equity case regarding deed cancellation
Related Laws
No specific laws identified for this ruling.
Outcome
Appeal from Vernon Circuit Court regarding cancellation of a deed based on fraud and failure of consideration. The appellate court remanded the case, finding the trial court erred in admitting evidence and the record presented was incomplete for proper appellate review.
Excerpt
<p>Appeal .from, Yernon Circuit Court. — Hon. Chas. Gr. '.Burton, Judge.</p> <p>(1) Plaintiffs’ petition does not statc^facts sufficient to constitute any cause of action agains\\ defendants, and the trial court erred in admitting, on the.trial, over the objections of defendants, any evidence whatever, and in overruling defendants’ motion in arrest of judgment. When a case is constituted of frauds, it must be fully stated of what the fraud consisted, and how it was affected. In all cases where the cancellation of a deed is sought, as in this case, courts of equity will not grant relief unless the court can see from the facts stated that the deed ought to be set aside. 1 Story Eq. Jur., secs. 203e, 694a/ Kerr on Fraud and Mistake, 365, 36é; Bigelow on Fraud, 450, 451; Bliss on Code Pleading';-, sec. 211; Nash on Code Pleading, 361, 362; Curry v.) Reiser, 30 Ind. 214; Joest v. Williams, 42 Ind. 565; McCindley v. Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269. (2) The evidence did not justify the finding of the trial court, and was not sufficient to sustain the decree. (3) The finding of the trial court and the decree is contrary to and against the evidence and the law. (4) The record conclusively shows that defendants were prevented by the acts of plaintiffs from performing the conditions of the contract as averred and shown by all the evidence, both of plaintiffs and defendants.</p> <p>(1) The statement and abstract of record as given by appellants do not include a true statement of this case. “This is an equity case, and the whole of the evidence should be given, unless the parties agree upon an abridged statement thereof,” and no such agreement nas been made. Rule 12, Supreme Court of Missouri. (2) The fraud and failure of consideration are sufficiently pleaded in this case, and the petition stated a good cause of action. Bliss on Code Pleading, sec. 211; Blair v. Railroad, 89 Mo. 334; Whittlesey’s Mo. Practice, sec. 145a, subd. h; Fox v. Webster, 46 Mo. 181. (3) A
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