Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Laura J.
W. LYNCH, J.
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"), 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.
and Procedural Background
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.
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.
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
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.
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.
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
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.
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.
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.
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 ...