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Herd v. Herd

Court of Appeals of Missouri, Southern District, First Division

January 24, 2018

LOIS HERD, Plaintiff-Respondent,
DANNY HERD, BRADY HERD, and PAIG HERD, Defendants-Appellants.


          GARY W. LYNCH, J.

         Plaintiff Lois Herd filed suit against her son Danny Herd, her grandson Brady Herd, and Brady's wife Paig (referred to individually by first names and collectively as "Defendants"), [1]seeking rescission of a real estate contract and deed by which she conveyed her interest in 87.95 acres to Brady and Paig, and alleging fraud in Defendants' failure to disclose that the real property conveyed included some acreage and structures that Lois did not intend to convey. The trial court granted rescission upon finding that Danny knew Lois was not aware of the full extent of the conveyance and in doing so, committed actual fraud. Defendants appeal, claiming that the trial court erred in that its findings were unsupported by substantial evidence and against the weight of the evidence. Finding that Defendants' points relied on fail to preserve any issue for appellate review, we affirm.

         Factual and Procedural Background

         "We view the evidence and permissible inferences drawn therefrom in the light most favorable to the judgment." In re Marriage of Scrivens, 489 S.W.3d 361, 363 (Mo.App. 2016). So viewed, the following evidence relevant to this appeal was adduced at trial.

         In 1949, Lois and Joe Herd, Sr., acquired title to approximately 160 acres in Christian County. They later purchased two additional parcels, a 91-acre tract and a 40-acre tract, built a home and two barns, and raised a family.

         When Joe became ill and could no longer work, they decided to sell the 91-acre parcel, and in 2010, their son Danny purchased it for $1, 000 per acre. The parcel adjoins land Danny already possessed.

         In early spring 2013, Lois told Danny she was considering selling more land, and Danny expressed an interest in purchasing more. Later it was decided that Danny's son Brady and his wife Paig would buy approximately 87.95 acres, but Danny negotiated the transaction on their behalf. Lois never talked to Brady about the sale.

         When Lois and Danny discussed where the boundary line would be located, Lois told Danny she wanted an existing fence to serve as the boundary. There were two barns that Lois wanted to keep within the boundaries of the property she retained, and keeping the fence as the boundary would, in part, allow access to a road that ran across the southeastern corner and allow her cattle to access water from a pond. Lois never intended that the two barns be included in the property sold, and Danny admitted that Lois told him she wanted the fence to serve as the boundary.

         Danny arranged for a survey and met with the surveyor, directing him to locate the boundary line to the north of the two barns instead of to the south of the barns, as Lois had instructed. When the survey was completed in September 2013, Danny brought Lois the survey and the billing, which she paid. Lois did not look at the survey before she gave it to her attorney so he could use it to prepare the contract and deed for the sale of the property, nor did she examine the survey before the transaction closed. Lois stated that she did not know how to read a survey and would not have understood it. Danny never told Lois that the new property line would be north of the barns.

         Lois was around 86 years old when the transaction was negotiated. Lois believed that Danny was acting on her behalf and trusted that he was. Joe had been very ill and had been hospitalized at different times and then confined to the home, with Lois caring for him full time. She and Joe decided to sell the property because they needed the money. But Danny, negotiating on behalf of his son, told Lois, "Don't make it hard on Brady[, ]" which she understood to mean "not to price the land too high." Lois opined that the property should have been worth at least $1, 700 to $1, 800 per acre, however she and Joe financed the sale to Brady and Paig for what turned out to be $850 per acre rather than the $875 per acre that Lois believed they would receive. Brady and Paig paid $10, 000 down and agreed to pay $5, 000 every six months until November 1, 2021. The transaction closed on November 1, 2013.

         Joe died April 22, 2014. In September 2014, Brady began work on building a fence situated such that it would prevent Lois from accessing the barns she had intended to retain as part of her property and the road across the southeast portion of her property. When Lois confronted Brady about the location of the fence on her property, Brady told Lois that the property was his, as well as the barns, and he continued to build the fence and refused to remove it.

         Lois never removed any of the equipment and materials she had stored in the barns after the sale closed because she did not believe the conveyance to Brady and Paig included the two barns. When the dispute arose over the location of the new fence, Brady erected a no trespassing sign warning that violators would be prosecuted.

         Lois contacted her attorney, who wrote a letter to Brady and Paig explaining that there was an error that needed to be corrected in the real estate contract and deed. However, neither responded to the letter, and the fence was not removed. Lois also commissioned another survey that designated the former fence line running south of the two barns in addition to the new ...

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