"Q. Now, I will ask you if you ever told Mr. Johnson that you paid $25,000 for that hotel? A. No, sir; I did not. Q. If anything was said about $35,000, will you explain to the court what was said about that, if anything? A. Why, I don't particularly remember whether I was speaking to Mr. Johnson or Mr. De Long, or both of them; I was referring to why the property was worth $35,000, told Mr. Johnson and Mr. De Long how I got my information."

a part of its decree, that plaintiff took pos- property was worth $35,000, we call attensession of said 340 acres on April 18, 1912, tion to his testimony in chief on this suband is still in possession. The court further ject, as follows: found that defendant was entitled to $300 per year, for the rent of said farm for the years 1912 and 1913, and at the same rate until possession was delivered to defendant. The costs were likewise taxed against appellant. The court in said decree found for defendant in the action of replevin, and gave judgment against plaintiff and his sureties on the replevin bond for $1,500, with costs, etc. The court further found that defendant, A. M. Dunning, has no interest in said personal property, but held possession of same as the agent of defendant, etc.

Plaintiff, in due time, filed motions for a new trial and in arrest of judgment, both of which were overruled, and the cause duly appealed by him to this court.

Charles B. Butler, of Doniphan, for appellant. L. L. Bowman, of Cape Girardeau, Ernest A. Green, of St. Louis, and Leslie C. Green and Sheppard & Sheppard, all of Poplar Bluff, for respondent.

RAILEY, C. (after stating the facts as above). The foregoing statement, substantially covers the main questions in the case, aside from those relating to the charges of fraud, alleged by plaintiff to have been practiced upon him by defendant in the procure ment of the exchange of properties aforesaid. It may be stated, in passing, that the answer does not charge plaintiff with fraud in respect to the sale of the 340 acres of land or the personal property aforesaid. Nor does it aver that defendant was deceived by plaintiff as to the lumping value of $19,000 placed thereon. As heretofore stated, the defendant was an experienced real estate dealer, and having personally examined plaintiff's farm, doubtless relied upon his own judgment as to the value of plaintiff's property. On the other hand, plaintiff knew nothing whatever about the value of hotel property in Cape Girardeau, nor with respect to the practical operation of such property. With these observations, we will proceed to consider the charges of fraud, lodged by plaintiff against defendant, in respect to the exchange of properties aforesaid.

[1] I. (1) It is charged by appellant that defendant falsely and fraudulently stated to plaintiff that he paid $35,000 for the Terminal Hotel property; (2) that defendant's one-half interest therein was of the reasonable value of $17,500. The testimony of plaintiff is clear and explicit to the effect that defendant made both the above representations to him, before their trade was consummated; that is to say, the defendant told him said property had cost him $35,000, and that one-half of same was of the reasonable value of $17,500. As evidence of the fact that defendant was endeavoring to induce plaintiff to believe the Terminal Hotel

*

and I

The defendant further testified in chief:

"Q. Did you tell Mr. Johnson that your half interest in the hotel was of a reasonable value of $17,500? A. I told him how I arrived at what I considered it was worth.

"Mr. Hill: We object to the answer because remember whether I told him it was worth $17,it is not responsive to the question. A. I don't

500, but I told him how I arrived at what I considered the value of it."

The deed from defendant to De Long, dated January 27, 1912, for one-half of said hotel, recites the consideration as $17,500. This deed was filed for record in New Madrid county, February 5, 1912. It falsely recites that De Long had paid defendant $7,500 in cash, when not a dollar was paid. Defendant testified, upon cross-examination, in respect to this matter, as follows:

"Q. I want you to tell the court, if you can, why you executed that deed and delivered it to Mr. De Long, stating a consideration of $17,500, when it wasn't true? A. Because Mr. De Long said that he could in future, if you want to sell the property, he could sell it to a better advantage. Q. Now tell the court why you had that clause put in there stating that $7,500 of the consideration was paid in cash and that you retained a vendor's lien of $10,000? A. I don't know why, except that Mr. De Long requested that to be put in."

De Long testified, in respect to above matter, that Jines had the above consideration written $17,500 in his deed; that the recital of the cash payment of $7,500 was put in said deed at the suggestion of defendant, Jines. De Long lived at Blytheville, Ark., and first met defendant at Cape Girardeau the 1st of January, 1912. De Long was a gambler, without any substantial means, and on January 8, 1912, was installed by defendant in the hotel, in charge of the dining room, under a two-year lease, without being required to pay rent. De Long testified as to the deal between himself and Jines as follows:

"Q. This deed was made to you, and this consideration was fixed at $17,500, and this statement made that $7,500 was paid in cash, was Jines, for the purpose of baiting a purchaser all done at the suggestion and insistence of Mr. and making them believe the property had a value of $35,000? A. Entirely so."

De Long further testified that the notes which he gave Jines were"utterly worthless at any time. Q. Why were they utterly worthless? A. Because there was no possibility of me paying them. Jines thoroughly understood that."

In concluding his testimony, De Long testi- | plaintiff that said hotel was paying at the fied, in regard to the deal with Jines, as fol- time, as it had previously done, a net profit lows: to those operating it; that the proceeds from the rooms alone of said hotel were paying a net income of $7 a day; that the cost of servants, water, and light necessary to run the hotel did not exceed $250 per month; that $2,500 of the Marchildon deed of trust would be due in May, 1913, and that the balance was not due for four years; that each and all of said representations were false, and known to be so when made by defendant; that plaintiff was ignorant of the matters aforesaid; relied upon the statements of defendant; believed them to be true, and was induced to enter into said exchange on account of the numerous representations aforesaid.

Aside, however, from the foregoing, said note | the bill of sale for the personal property, exis utterly worthless, as De Long is insolvent, ecuted at the same time, should be set aside and the hotel property has been foreclosed and sold under the Marchildon mortgage. Its execution was brought into existence through the fake deal between De Long and Jines, and hence the failure to tender the above note presents no obstacle in the way of rescinding the deal between plaintiff and defendant.

(2) It is contended that plaintiff did not tender back to defendant the $225 note, which was delivered to appellant some time after the trade, in settlement of certain interest due upon the hotel loan. Plaintiff testified that he tendered it back to Jines; that he still has it and is willing to deliver it up. This note is signed by De Long, as maker, and has no value.

and canceled; that the legal title to said 340 acres and the personal property aforesaid should be divested out of defendant and the same vested in the plaintiff. We likewise hold that plaintiff should be divested of whatever legal title he may have to the Terminal Hotel property aforesaid, and any interest which he may have acquired in any of the De Long notes aforesaid from defendant; that the same be vested in defendant, subject to the legal rights of those claiming to own said hotel property under the foreclosure sale of the Marchildon deed of trust for $7,500 and interest.

We accordingly set aside the decree rendered herein by the lower court; reverse and remand the cause, with directions to the trial court to enter a decree in favor of plaintiff, as heretofore indicated; to dispose of said cause in conformity to this opinion; to ascertain and determine what damages, if any, the plaintiff has sustained; to ascertain and determine the amount of interest and principal due defendant on the $200 note aforesaid, and to charge the plaintiff's land with the payment of said $200 and interest, giving plaintiff a reasonable time in which to pay the same.

[4] (3) It is insisted that, because the $200 note and chattel mortgage given by Johnson to Jines on the hotel furniture were not tendered to defendant, plaintiff is not entitled to a rescission of their agreement. This chattel mortgage and the note of $200 mentioned therein were in favor of Jines. The latter borrowed the $200 from the Sturdivant Bank, and put up the note and mortgage of plaintiff as collateral security therefor. This chattel mortgage was not foreclosed until about December, 1912. On May 20, 1912, the tender was made and defendant notified that the plaintiff had repudiated the deal between PER CURIAM. The foregoing opinion of them. Respondent made no effort to take up RAILEY, C., is hereby adopted as the opinthe $200 note and mortgage, after being noti-ion of the court. All concur. fied of the rescission. If the hotel furniture was sacrificed, it was through the negligence of defendant as above suggested. The plaintiff

BROWN, C., concurs.

concedes that he ought to account to defend- NORMAN'S LAND & MFG. CO. v. HUNTER ant for the above $200, with interest thereon,

et al. (No. 18291.)

Feb. 20, 1917.)

1. TAXATION 774-TAX TITLE-DOCTRINE OF RELATION.

and this can be taken care of in our decree. (Supreme Court of Missouri, Division No. 1. [5] In the recent case of Wilson v. Henderson, 191 S. W. 72, decided in this division, on December 20, 1916, and not yet reported, we had occasion to consider the authorities, in respect to the law of rescission, in cases of this character. We there held that where the full tender could not be made on account of the plaintiffs' fraud, it did not vitiate the right of defendants, in a court of equity, to make the tender good as far as it could be reasonably done, and to have a decree entered rescinding the contract.

We accordingly hold that plaintiff should not be precluded from rescinding the trade made with defendant as aforesaid, on account of his alleged failure to place defendant in statu quo.

IV. We have read and re-read, with a great deal of interest, the voluminous record, as well as the respective briefs of counsel herein. Upon a careful consideration of the whole case, we are of the opinion that the warranty deed executed by plaintiff and wife to the defendant on April 22, 1912, for said 340 acres of land in Ripley county, Mo., and

there are divers acts concurrent to make a conUnder the doctrine of relation, that where veyance the original act shall be preferred and to this the other acts shall have relation, where a purchaser at a tax sale executed and delivered quitclaim deed to the land which was recorded on the day of delivery before he received the sheriff's tax deed, the sheriff's deed took effect by relation from the date of the tax sale, so that the grantee in the quitclaim deed took title to the land.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 1542.]

2. VENDOR AND PURCHASER 231(3)—BONA FIDE PURCHASER-NOTICE-QUITCLAIM.

and delivered a quitclaim deed to the land, conWhere a purchaser at a tax sale executed taining a recital that it was a tax title, which was recorded on day of delivery before he received the sheriff's deed, and after receiving the sheriff's deed purchaser conveyed the land by warranty deed to third person, the grantee of the warranty deed took with notice of the tax sale upon which his title depended, and of shersuch deed relate back to the time of tax sale. iff's deed, and of the applicable law making

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 515.]

[3] II. Another ground which supports the as an instrument until it is acknowledged. judgment is that by purchasing at the sherThe cases cited involved the legal title, and iff's sale Jones acquired an interest which the rule was applied to deeds unacknowledg-was vendible even prior to the acknowledg

Respondents rely upon the doctrine of rela-thorities are chiefly those decided prior to tion. This doctrine is that:

the amendment of the statute relating to sheriff's sales. That amendment was enacted in 1887 (Laws 1887, pp. 186, 187), and added to section 2400, R. S. 1879, provisions which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

remain as then enacted (section 2239, R. S. I 1909), and which contain a conclusive implication that the purchaser at the sheriff's sale takes an interest which he can sell or devise or which may descend to his heirs. Having taken such a right or interest, Jones sold it to Bradley & Dillon, and their title and that of those who claim under them could not be affected by an attempt of Jones again to convey the property. The fact the sheriff's deed was made to Jones after he had parted with his right to demand it does not affect the question. Phelan, grantee of Jones in the deed of June 8, 1906, and under whom appellant claims, had constructive notice of the tax sale; it being in his chain of title, which is appellant's also. That included notice of the fact that the sale gave Jones a vendible right. Notice that he had such a right carried with it constructive notice of the deed of October 1, 1887.

The judgment is affirmed.

On the first Tuesday in April, 1912, the defendant held an election for the purpose of adopting the provisions of sections 9281 to 9298, inclusive, of the Revised Statutes of 1909, relating to the construction of sewers in cities of the third class, and by virtue of said election, said sections were adopted. On the 11th day of August, 1913, the defendant WHITSETT et al. v. CITY OF CARTHAGE. passed Ordinance No. 102, dividing the terri

(Supreme Court of Missouri, Division No. 1. templated by the provisions of said sections Feb. 20, 1917. Rehearing Denied March 12, 1917.)

Appeal from Circuit Court, Jasper County; acre tract in the north central portion thereD. E. Blair, Judge.

of was, many years ago, platted into town Suit by J. M. Whitsett and others against lots, it was a failure as a city addition. No the City of Carthage. Judgment for defend- streets or alleys have ever been opened or ant, and plaintiffs appealed to the Springfield improved therein, and it is occupied as acreCourt of Appeals, which transferred the age property. None of the remainder of said cause to this court (184 S. W. 1185). Affirmed. quarter section has ever been platted.