This is an action in damages for fraud, brought in the Circuit Court of Jackson County to the June term, 1920, wherein plaintiff recovered judgment against defendant for $4,976.25 compensatory and $5,000 punitive damages. The motions for a new trial and in arrest of judgment being overruled, defendant appeals.
The petition alleges in substance: That on or about February 7, 1916, plaintiff purchased a certain farm in Andrew County. That on November 10, 1917, Bertina H. Boyles filed suit against plaintiff praying that he be divested of an undivided one-fourth interest in said land, and offered strong evidence of her legal demand. That *Page 239 Bertina Boyles offered incontestible proof that a purported deed of October 18, 1915, from James A. Harlin, to certain named heirs of Martin D. Boyles, deceased, in plaintiff's claim of title, was a forgery. That defendant procured the execution of and caused the forged deed to be recorded, while suppressing a valid unrecorded deed from Harlin to Bertina H. Boyles, coming to defendant's possession while acting as administrator de sontort of Bertina's husband's estate, and as a direct result, plaintiff was, on January 16, 1919, compelled to compromise and settle with Bertina to stop costs and the loss of a one-fourth interest in said farm. That the itemized expenditures amounted to $2,976.75. That the procuring of said false and fraudulent deed by defendant was a wilful, intentional and malicious act and a gross fraud, and that as a direct result plaintiff employed lawyers and incurred costs, expending the above amount, and was further damaged in prosecuting the litigation, causing him worry, vexation and mental distress in sum of $2,000. Prayer for judgment for $4,976.75 and for $5,000 punitive damages.
Defendant filed a general demurrer, and on the court overruling it, filed and went to trial on a general denial.
It appears from the record that one Martin D. Boyles, who died in March, 1891, devised the Andrew County land to his wife, who died July 19, 1915, for life, with remainder to his five children, one of whom, Cora E. Burnett, was the wife of defendant. In November, 1893, the interest of George M. Boyles, his son, was sold and acquired by his four brothers and sisters. Another son, Bloomer C. Boyles, formerly the legitimate husband of Bertina, later divorced, but at his death in March, 1912, her common-law husband, as the probate court found, left no descendants. In 1908, under a judgment and execution, the interest of Bloomer C. Boyles in said land was sold to James A. Harlin for $200, for which he received a sheriff's deed, acknowledged in open court, but never recorded. *Page 240
In February, 1913, defendant was appointed administrator of Bloomer Boyles's estate, but was later removed, and Bertina appointed administratrix, for that she was his widow. In November, 1915, in Andrew County, William C. Boyles brought suit to partition the land, all possible parties being made defendants, except said Harlin and said Bertina. The petition alleged that Bloomer C. Boyles died intestate, leaving no descendants and no widow.
As the county records showed Harlin's interest in the land, defendant was advised that in order to make good title by partition, it was necessary to have said Harlin execute a deed. Defendant testified, on being so advised, that he made inquiry, was directed to a man who claimed to be Harlin and from him obtained a quit-claim deed. The facts relative to the procuring of the quit-claim deed are: Defendant was told by his attorney where Harlin could be found. He went to the address and a lady there told him that he would find Harlin at a saloon on West Twelfth Street, she thought, 216 or 218. Going into the saloon and finding a man standing there, he asked him if he knew James A. Harlin. He said he did. Defendant said: "Well, sir, I would like to see him on business." The man replied: "What do you want with him?" Said defendant: "I told him I wanted to see him in regard to some real estate." "Oh," said the man, "that Andrew County land?" Defendant said: "Yes, that's it." He told me he was the man. Defendant asked him what he would take to make a quit-claim deed to that Andrew County land. He said $100. Defendant asked him if he would make it for any less and he said he would not. So the defendant informed Mr. Williams (attorney for plaintiff in the partition suit) that he had found the man, and the deed could be secured for $100. Mr. Williams told him to buy it. Upon a telephone conversation, defendant went to the Washington Hotel, saw the man, made a deal with him and procured a quit-claim deed, which was drawn up by a Mr. Wade. *Page 241 The man met defendant in the Schukert Building. The man took the quit-claim deed, was gone about two hours, when defendant again met him, gave him the money for the deed and gave it to Mr. Wade for inspection and later delivered the deed to Mr. Williams at Savannah. The deed was introduced in evidence. Defendant denied that he signed the name of James A Harlin to the deed.
The property was partitioned and sold to plaintiff. Defendant was paid $372.65 for services and to reimburse him for the money paid for the quit-claim deed. The decree provided that the proceeds of the sale be divided one-sixteenth to George and five-sixteenths each to William, Cora and Anna, devisees of Martin C. Boyles. Plaintiff and his wife purchased the land at the partition sale for $9,720. His wife died November 19, 1919.
On February 7, 1916, Bertina filed an ejectment suit for the land, claiming and undivided one-fourth interest and damages. A second count sought to quiet title, and set aside the alleged forged deed from Harlin to the defendants in the partition suit. There was a trial and the jury failed to agree. Plaintiff then settled that case with Bertina by paying her on January 15, 1920, $2,252.30. The settlement was evidenced by a writing, in which Bertina covenanted not to sue, agreed to dismiss her suit, and to get a quit-claim deed from Harlin to herself, which she did on January 29, 1920.
Bertina testified that in May, 1909, Harlin deeded her the property. She placed that with the sheriff's deed to Harlin in her sewing machine drawer, where it remained until December, 1911. She gave these deeds to her husband, Bloomer, who was going to Savannah, to be recorded. She never saw this deed from Harlin to her but once afterward and then in the probate court at Kansas City in October, 1919, in the possession of defendant and his attorney, Mr. Madison. On the sheriff's deed to Harlin, and the deed from Harlin to her, neither of which were ever recorded, she based her claim to the land and sued Simpson. *Page 242
Daisy E. Curp, a notary public, testified that on May 12, 1909, she acknowledged Mr. Harlin's signature to a quit-claim deed, as shown by her notary's record, and that she also had a vague recollection of it.
James A. Harlin testified that he bought a one-fourth interest in the Andrew County land, at execution sale on June 18, 1908, and received the sheriff's deed therefor by mail. He produced an envelope in which he stated the sheriff's deed was mailed. Later, by quit-claim, signed and acknowledged, for $250, he conveyed the land to Bertina Boyles. On January 28, 1920, he conveyed by a second quit-claim, stated as in lieu of the former deed, the same land to Bertina Boyles. He denied that he signed the quit-claim deed of October 18, 1915, obtained by defendant, or that it was his signature.
Such other facts as we deem important will be forthcoming later.
I. Defendant complains of the action of the trial court in ruling adversely on his demurrer to the petition and the motion in arrest of judgment. He says there is no allegation in the petition that plaintiff relied on the allegedFraud and forged deed, or that Bertina or HarlinDeceit: Pleading. acquired or owned any interest in the land.
This is an action for fraud. While the petition alleges that the deed of October 18, 1915, from Harlin to the heirs of Martin Boyles, was forged and directly procured by defendant, and that his act in procuring it was intentional, wilful, malicious and a gross fraud, it fails to state that the deed was known by defendant to be forged, that it was procured by him with the intention of deceiving the proposed purchaser at the partition sale, to-wit, plaintiff, that he was deceived thereby and that by his reliance upon the forged deed, plaintiff was induced to act to his injury. [Remmers v. Remmers, 217 Mo. l.c. 557.] While there may be sufficient in the petition to charge defendant with knowledge that the deed was forged, with intent to deceive the purchaser, it contains *Page 243 no allegation from which we may infer that plaintiff was deceived and by virtue of the deception was induced to act to his injury by reliance on the forged deed. As was said in Morrow v. Franklin, 289 Mo. l.c. 563: "Scienter is an element necessary to be pleaded and proven in legal actions for fraud and deceit." So with deception and reliance. If plaintiff was not deceived or did not rely on the verity of the forged deed, he may not recover. Fraud is voidable, for the subject may deem it to his advantage, after discovery, to ratify or consummate the transaction. As the allegation that plaintiff was deceived and that he relied on the forged deed were omitted, the petition is insufficient. [27 C.J. p. 36.]
We think the petition ought to definitely state that Bertina owned the one-fourth interest in the land, showing the facts and circumstances of acquirement from Harlin.
II. Defendant says there is no evidence that plaintiff, in the purchase of the land at partition sale, relied upon the alleged forged deed; and that the unrecorded deed fromProof: Reliance the sheriff to Harlin and from Harlin toon Forged Deed. Bertina, could have constituted no title against plaintiff.
Answering the last contention first, it suffices to say that the plaintiff and defendants in the partition suit, including defendant herein, even though the deed was unrecorded, had actual notice that the title was in Harlin, and so believing attempted to straighten the chain of title by procuring a deed from him, alleged to be forged.
We have searched the record diligently to find some proof tending to show that, in purchasing the land, plaintiff relied on the alleged forged deed as genuine. He testified that he had no conversation with defendant about the title of the land before he bought it. The record is barren of any inference that he discussed the title with any person whatsoever, that he made any inquiry, or that he saw an abstract of title or the alleged forged deed or that he relied upon it. He testified that he was not *Page 244 interested in the partition proceedings. Plaintiff's counsel, in their brief, state that plaintiff did not talk to defendant prior to the purchase, nor did defendant make any representations other than procuring the forged deed, nor was there any relation between the two. Plaintiff testified that the one hundred acres was worth about $20,000, and that he paid $9,720 for same. If Bertina's interest, if any, at the time of settlement, was worth about $5,000, which, with the purchase price of $9,720, would total $14,720, it may be that, even under these circumstances, he considered the $20,000 farm a bargain and took his chances on retaining the whole property, even though he had grounds to suspect the deed forged. We hold there is no evidence in the record to show that plaintiff relied upon the forged deed in purchasing at the partition sale. It may be that upon a retrial of the cause, he can produce evidence consisting of some fact or circumstance tending to show reliance on the forged deed.
III. Plaintiff offered in evidence three letters from Mr. Williams, attorney for plaintiff to defendant, datedReliance: January 7, 16, 21, 1920, which defendant objected toMust be as incompetent, irrelevant and immaterial, not theProved. best evidence and hearsay.
The purport of the above letter is that the Harlin deed procured by defendant was fraudulent, that he took a deed from a man who was not the owner of the land, and that defendant ought to be able to find him. That defendant's wife and the other heirs ought, in fair dealings, to pay back the money to plaintiff received from the quarter interest formerly owned by Bloomer Boyles; that Bertina had and could produce Harlin, and that it was folly to go on with the case; that plaintiff Simpson bought in good faith, relying upon this quit-claim deed and the abstract. Defendant answered the first letter, stating he had done all in his power to find Harlin and he had been willing to take Harlin's deed himself. Defendant's reply to the second letter was that Williams seems to have forgotten that defendant was only acting as agent *Page 245 for Williams and the Martin Boyles heirs, and that Williams had all the facts before him as defendant had them, and urged him to buy the property for the heirs, from the sale of which defendant got nothing but a nominal sum for buying the property. Williams's third letter did not contemplate a reply and closed the correspondence. Defendant's objection that the letters were not the best evidence, was well taken, as plaintiff introduced copies without notice to produce. However, had plaintiff offered the originals, they could have only gone in on the theory of admissions against interest. We do not think that defendant was silent when he should have spoken or that he acquiesced in the accusations therein, as his replies were, in effect, denials. [22 C.J. p. 326.]
IV. Defendant objected to the admission of the transcript of the proceedings of the probate court (comprising the petition and order and judgment of court, showing that Bertina was the widow of Bloomer H. Boyles, and removing defendant asTranscript of administrator and appointing Bertina), because,Probate Court. not an issue. The above facts were links in the chain of plaintiff's evidence, tending to prove that defendant knew that Bertina had been declared Bloomer's widow, and to that extent at least, tended to show intent and knowledge.
V. (a) We do not think the admission of the covenant not to sue, error. Its purpose was to show the good faith of the settlement and the amount paid in compromise byCovenant plaintiff. However, the court rightfully excludedNot to Sue. certain portions.
(b) Defendant objected to the introduction of the quit-claim deed from Harlin and wife to Bertina, because hearsay, self-serving and after defendant's liability, if any, arose. This deed is called for in the covenant not to sue, and tends to show good faith in the settlement. The paragraph beginning, "This deed," and ending, "Grantee herein," should be excluded. *Page 246
VI. Defendant says that the damages of plaintiff should be governed by the price paid or the then value of the land. We think the court should have excluded evidence of the increased value of the land and of the $12,000 mortgage, as not tending to show the value of the land at the time plaintiff purchased it. The measure of damages sustained by the purchaser,Measure of induced by fraud, is according to the weight ofDamages. authority, the difference between the real value of the property purchased and the value which it would have had had the representations been true. The theory is that the defrauded party is entitled to the benefit of his bargain. [27 C.J. p. 92; Kendrick v. Ryus, 225 Mo. 150, l.c. 157; Ryan v. Miller, 236 Mo. 496, l.c. 508; Thompson v. Lyons, 281 Mo. 430.] The representation was the good title to the property. Plaintiff's measure of damages is the difference between the actual value of the property at the time of purchase and the value of the property with the one-fourth interest taken out, limited by and not exceeding the amount paid in settlement and the necessary expenditures in defending the suit and obtaining title.
VII. Defendant complains that there was no evidence of the reasonable value of the traveling expenses and court costs. The traveling expenses were small items, but, even so,Expenses and there must be some evidence of reasonable value.Court Costs. There also must be evidence that the court costs paid by plaintiff were those charged and fixed by the court. Being regulated by statute, they are fixed charges.
VIII. Defendant objected to the testimony of witness Booher found at pages 79 to 87 et seq. of the abstract. Defendant has generally referred us to thirty printed pages without pointing out specifically his objections. The testimony was introduced for the purpose *Page 247 of showing that the compromise with Bertina was madeUnspecified advisedly, in fairness and with an honest purpose.Objections. This evidence was generally admissible. We cannot encumber the opinion by specifically discussing each objection, for upon a retrial the same questions may not arise. However, the testimony should be limited to showing title and the right of recovery in Bertina, and the advisability of the settlement.
IX. The court should have excluded the relation by witness Chapman of his argument to the jury in proceedings, in probate court, to remove defendant. It was not anArgument in admission, for defendant could not be expected toAnother Case. reply. Further, witness testified he had never seen the deed therein referred to.
X. (1) We see nothing in defendant's point that the court should have excluded the testimony of Mrs. Boyles that she received the deed for this land from James A. Harlin about May 13, 1909.
(2) The court did not commit error in permitting Mrs. Boyles to testify that she had stated in the removal proceedings in the probate court this statement to defendant: "This is my deed. My name has been erased and Bloomer's name has been put on it." This deed is an issue in the case. She based her right to recover on same. The erasure of her name and the insertion of Blomers, with defendant's knowledge, was evidence of his later fraudulent intent.
(3) The court committed error in permitting witness Booher to testify that, as attorney for Simpson, he out-figured Mrs. Boyles's attorney, and that he believed, in the settlement, he saved his client between $5,000 and $6,000.
(4) It was not error for the court to refuse to allow defendant to testify that he took out letters of administration on the estate of Bloomer at the request of his mother. His object was not material or relevant. *Page 248
(5) Plaintiff's attorney ought to have couched his question differently in saying, "I am not going to say Harlin, because it was not Harlin." In the heat of a trial, however, attorneys may sometimes lose themselves.
XI. Defendant's criticism of plaintiff's Instruction 4 is not tenable. The instruction defines malice as the intentional doing of a wrongful act, without just cause or excuse, and tells the jury that ill-will, hatred or personal spite is not necessary to create legal malice. Defendant submitted the issue ofMalice. honesty of purpose and reasonableness of excuse to the jury in his instructions given by the court.
XII. Defendant's criticism of the court's Instruction 1 is that the court left it to the jury to say whether James A. Harlin had purchased an undivided quarter interest in the land. Defendant thinks this question ought to have been left toJury Question. the court, and contends that the unrecorded sheriff's deed was void. The court was right in permitting the jury to determine the question, but defendant may not complain of such action for, if his contention is right, it added an unwarranted burden to plaintiff's cause. We know of no authority saying that an unrecorded sheriff's deed is void. We may say, however, that the instruction should require the jury to find that plaintiff relied upon the forged deed.
XIII. We think that the court's Instruction 2 was error in basing recovery on the value of the land at the time of the compromise and settlement. It should have been basedMeasure of on the actual value of the land at the time ofDamages. purchase. What we have heretofore said on the measure of damages is applicable here.
XIV. The court's Instruction 3 singles out a particular fact. This instruction was an unwarranted comment on the evidence, giving undue prominence to a single *Page 249 fact to-wit, that the burden was on the plaintiffComment. to prove that the deed was procured from the true Harlin. A general instruction on a burden of proof would be applicable. [Burton v. Holman, 288 Mo. 70; Jones v. Railway, 287 Mo. l.c. 64.]
XV. Defendant's refused Instruction 11 should not have been given. It is subject to the same criticism as was the court's Instruction 3, for it singled out the fact that the jury must believe that defendant wilfully and wrongfully forged said deed. Defendant's Instruction 12 telling the jury that if it believes that defendant knowingly secured said deed, as set out in Instruction C1, is also subject to that criticism,Unrecorded for that it gives undue prominence to a singleDeed: Notice. fact. Defendant's Instruction 13 was error and should not have been given. It tells the jury that, if Bertina failed to record the deed received from Harlin, then the plaintiff was without notice of such unrecorded deed and had a good title. This instruction does not conform to the facts, for the parties in the partition suit had actual notice of an outstanding title.
For the errors heretofore pointed out, we reverse and remand the cause to be tried in accordance with the views herein expressed. It is so ordered. Railey and Higbee, CC., concur.