author: LAMM, P. J.

text:
    D. K. COX v. THADDEUS C. JONES and SAM PEPPER, Appellants.
    Division One,
    June 14, 1910.
    1. EJECTMENT: Parties Defendant: Landlord: Conflicting Statutes. Whether or not Sec. 643, B. S. 1899, providing that “in actions to recover possession of real estate, the landlord and tenant thereof may be joined as defendant,” is in pari materia with Secs. 3056, 3057, 3058 and 3060 of Chapter 24, entitled “Ejectment,” or whether this latter chapter is somewhat encode unto itself in regulating actions of ejectment, and whether- or not the opinion in Mann v. Doerr, 222 Mo. 1. c. 14, in which Sec. 543 was not considered, correctly stated the true statutory rule as to joining the landlord and tenant (in the first instance) as defendants in actions of ejectment, are points adverted to in the opinion in this case, but not decided because not issues, and any ruling thereon would be obiter.

    2. WILL: Devise to Heirs of Body. A devise to a daughter and “the heirs of her body, forever” creates a fee-tail or life estate in the daughter and a remainder in her bodily heirs.
    3. -: Interpretation: Fee: Subsequent Clause. If a devise of an estate be made to a given devisee, the estate granted may not, by subsequent ambiguous words inferential in their intent, be cut down to a less estate. On the contrary, an estate granted in one clause of the will may be cut down to a lesser estate by an express provision to that effect, or by words so strong and clear as to have that effect by plain and necessary implication.
    4. -:-:-:-: To Bodily Heirs. In the second clause of the will the testator gave to his daughter Ann certain lands, in the third clause certain other lands to his daughter Amanda J., in the fourth clause certain other lands to his daughter Sarah J„ in the fifth clause certain other lands to his son Alvin B., and in the sixth clause said: “The bequests here made to my three daughters are made to them and the heirs of their body, forever, and if any one or more of them should die without heirs of their body, then the property here bequeathed to them shall revert to and descend to my other heirs as herein expressed.” Eeli, that by the second clause, standing alone, he 'gave to Ann a fee-simple estate; but that clause cannot stand alone, but must be read in connection with the sixth clause; and when so read, the fee-simple estate given by the second clause was cut down to a lesser or a life estate by the express words of the sixth clause. '

      5. -: -: -: -: -: Perpetuities: Remainder Over. Nor was said sixth clause void as obnoxious to the rule against perpetuities, it created a life estate in the daughter with a remainder over in fee (in the event of the death of the daughter without heirs) in the heirs of the testator, and there was no uncertainty as to whom the fee would go; if there were bodily heirs of a daughter the estate went to them upon her death; if there were no bodily heirs surviving her, the estate went upon her death to testator’s heirs.
    6. -: -: Absent Words “Fee-Simple,” “Absolute Estate,” Etc. The absence of intensifying and qualifying words, such as “fee-simple,” “absolute estate,” “absolutely,” etc., from clause two of the will, declaring “I give to my daughter Ann” certain lands, are of no significance where there is no ambiguity in the subsequent clause limiting the estate to a fee-tail.
    7. -: -: Intervening Clauses. The fact that other clauses intervene between the one giving Ann certain lands and the one cutting down the devise to a life estate, should not be allowed to impair the operative effect of the last clause, where the clauses clearly relate to each other. The intention is to be ascertained from the whole will. See opinion for a summary of rules of interpretation.
    8. -: -: Life Estate to Wife. The words of the testator in clause one granting to his wife certain lands “during her natural life,” strengthen rather than weaken the view that he intended to give his daughters only a life estate; when in the next three clauses he gave certain other lands to each of them by separate clauses, and then by one subsequent clause said “the bequests here made to my three daughters are made to them and the heirs of their body, forever.”
    9. -: Justice and Fairness of Will. Where the will plainly gives to a daughter a life estate only, contentions that so interpreted it is unjust and unfair, are wholly wide of the mark in an action of ejectment.
    Appeal from Platte Circuit Court. — Hon. Alomo D. Burnes, Judge.
    Affirmed.

      Ardey Gabbert, James W. Boyd and G. H. Hillix for appellants.
    (1) Subdivision sixth of this will does not and did not invalidate, or set aside, or cancel or destroy; the title given by paragraph or subdivision two. This clause of the will is illegal and undertakes to create and establish a perpetuity in land titles. It undertakes to say that the three separate tracts of land therein above willed respectively to the testator’s three daughters, separately, by different clauses, shall be by clause six limited to them and to the heirs of their bodies'; but if any one or more of them should die without heirs of their bodies then the said property by said will bequeathed to them shall revert to them and descend to the heirs of the testator as therein expressed. In other words, the respondent contends that this clause undertakes to limit the title of Ann Harris to a life estate; and not only to a life estate for and during her own life, but if she should die without bodily heirs then the land should go to the other two daughters, Amanda J. Scott and Sarah J. Scott, for their respective natural lives; provided and if said Amanda J. Scott or Sarah J. Scott should die without bodily heirs, then said land should go to the other one or her bodily heirs and then if she died leaving no bodily heirs it should descend and become the property of Alvin B. Scott. Such a provision in a will is contrary to law, and is null and void. Sheppard v. Fisher, 206 Mo. 208; Lockridge v. Mace, 109 Mo. 152; 1 Washburn (4 Ed.), p. 110, sec. 57; Rice on Modem Law of Real Property, p. 755, sec. 270; Milfin’s Appeal, 121 P'a. St. 205. A limitation for a longer period than a life and twenty-one years is void. Lockridge v. Mace, 109 Mo. 166. If a limitation is made to depend upon an event which may occur immediately after the death of the testator, but which may not occur until after the lapse of a prescribed period, the limitation in the will is void. (2) The fact that clause “sixth” is void, does not in anywise invalidate clause two, by which the said land was devised to Ann Harris. Sheppard v. Fisher, 206 Mo. 245. (3) When the words of a will at the outset clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate, devised absolutely to the first donee, that estate will not be cut down to a less estate by subsequent ambiguous words inferential in their intent. Jackson v. Littell, 213 Mo. 506; Yocum v„ Siler, 160 Mo. 289; Gannon v. Albright, 183 Mo. 252;-Small v. Field, 102 Mo. 127; Roth v. Rauschenbush,. 173 Mo. 594; Naylor v. Godman, 109 Mo. 543.

      James H. Hull and Groves S Beery for respondent.
    (1) Even admitting that clause six means what is-said in appellants’ brief, yet as a matter of fact, the-vesting of the estate would not be beyond the life or lives in being and twenty-one years thereafter. The-estate would vest immediately upon the death of the-surviving life tenant, even if the construction they are contending for should be" considered. So long as the title must vest and can be conveyed within the-period of time of a life or -lives in being and twenty-one years, the rule is not violated, even worn on this-strange deformed construction. (2) Its meaning is free from doubt and there can be no question as to-what the testator meant, viz., to Ann Harris for life, fee to her children, if any, and if no children, then absolute title to testator’s other children as named in the will. Each of the daughters has been provided with a home for life. If other property reverted to and descended to them they would have the absolute title-to such part as did revert and descend to them. They could do with that as they please. The father had provided, as far as he could, a home for his wife and three daughters as long as they might live. His intention is clearly expressed. He wanted both the widow and his daughters to have a life estate. Gannon v. Pauk, 200 Mo. 85; Naylor v. Godman, 109 Mo. 550; McMillan v. Farron, 141 Mo. 63; Htter v. Sidman, 170> Mo. 284; Hunter v. Patterson, 142 Mo. 313.
   LAMM, P. J.

— Ejectment in Platte Circuit Court, brought January 10, 1907. Originally there were four-defendants. Two of them went out on demurrer at the close of plaintiff’s evidence — plaintiff saving no-exception to the ruling and taking no appeal. The verdict came in against Jones and Pepper on a trial to a jury. Prom a judgment entered on that verdict the two remaining defendants appeal here, making no question on the monthly rental value or the damages assessed nisi.

The land in controversy is the east half of the-southwest quarter, section 13, township 54, range 36 in Platte county, Missouri.

The petition is conventional, laying ouster as of April 10, 1906. The answer was a general denial.

The controversy lies in a nutshell, viz.: Ann-(intermarried with Jefferson Harris) was a daughter of John C. Scott, and died April 6, 1906, leaving several children surviving her. Scott was the common-source of title and died testate, leaving a widow, three-daughters and one son surviving him. His will, dated August 27, 1863 — a codicil, immaterial here, being-added in 1865 — was probated on April 6, 1869, in the-Platte Probate Court, Scott residing in Platte county. Ostensibly claiming a fee-simple title under a devise-in her father’s will, Ann Harris and her husband conveyed to defendant, Jones, in 1877, by warranty deed. Jones made entry under that deed and thereafter held possession. Claiming that their mother took only a life estate under the will of her father and that the-children of Ann Harris took as remaindermen when her life estate fell in, some of her children conveyed by separate deeds to the plaintiff. Subsequently Cox brought partition against the non-conveying children of Ann Harris and the descendants of one dead for a, division of the land. Such steps were taken in that, case that the proceeding ripened into a judgment, sale and sheriff’s deed in partition conveying the land to Cox.

If defendants’ interpretation of Scott’s will be sound, Cox got no title by his several deeds and Jones took title in fee-simple by his. Contra, if plaintiff’s be sound, Jones got nothing by his deed but the life estate of Ann Harris, her children held the reversion as remaindermen, ergo, their several deeds and the sheriff’s deed in partition conveyed a fee-simple title to Cox, Ann Harris’s life estate having lapsed at the time of the partition and the bringing of this ejectment suit.

Such being the bone of contention, a determination of the case seeks the material clauses of the will, vis.:

“First: I give and bequeath to my beloved wife, Jane C. Scott, all of my home tract of land, it being all of that part of the southeast (S. E.) quarter of section fourteen in township 54 of range 36, as lays south of the creek, and all that of the tract of land purchased by me of Aquilla Phy as lays south of the same creek adjoining the above described tract of land —and all of my other property, both real and personal or mixed, not otherwise expressly devised herein, during her natural life. And I desire her from my personal property to pay off any debts I may be owing, and give to my three unmarried children, Sarah J., Amanda J., and Alvin B. Scott gifts by way of advancement equal to what has been given to my daughter Ann Harris, at any time it may in her judgment be necessary and right.
“Second: I give to my daughter Ann Harris, wife of Jefferson Harris, the east half of the southwest quarter of section 13 in township 54 of range 36, being 80 acres, subject to the reservation of the timber on all the land on the north side of the “Steels” Branch on that 80 acres, and two board trees on said 80, to be designated by Mr. James Steel. The fence now dividing the tract is to be moved on the line, and if not sufficient to make a good fence, the balance of the rails are to be made of timber from the east 80 of the tract.
“Third: I give to my daughter Amanda J. Scott, the west half of the southwest quarter of section 13 in township 54 of range 36, and all the timber on the land on the north side of “Steels” Branch on the east half of said quarter section and two board trees on the east half of said quarter section to be designated by Mr. James Steel.
“Fourth: I give to my daughter Sarah J. Scott, all of that tract of land purchased by me of Aquilla Phy, laying north of the creek and the timber off of five acres running east and west opposite hers on the south side of the creek on the home tract.
“Fifth: I give to my son Alvin B. Scott the 98 acres known as the Terry and Cox tract, being the northeast quarter of section 14, township 54, range 36, and also all the real estate hereby bequeathed to my beloved wife, Jane C. Scott, at her death.
“Sixth: The bequests here made to my three 'daughters are made to them amd the heirs of theiri body, forever, but if any one or more of them should die without heirs of their body, then the property here bequeathed to them shall revert to and descend to my other heirs as herein expressed.”

There was testimony that the devisee, Amanda J. Scott, intermarried with T. C. Jones, defendant. Children were born to them who, with their mother, were living at the time of the trial. The devisee, Sarah Scott, also married and had four sons born to her— she and they living. The trial court took plaintiff’s view of the will, vis., that Ann Harris took a life estate with remainder over to the heirs of her body, that when she died plaintiff’s deeds from some of these heirs operated to convey him an undivided interest in the land and created a tenancy in common with those living heirs of her body who had not conveyed, and that by the partition proceedings and deed following plaintiff having acquired the whole title, that title drew to itself the right of possession as against Jones, grantee of Ann Harris, and Pepper, Jones’s-tenant.

Plaintiff’s instructions, consonant with that view,, were given, and defendants’, contra, were refused. When we rule on the will, such ruling settles the assignment of error on the giving and refusing of instructions. Hence it will not be necessary to produce them here.

I. Referring to the two defendants dismissed on demurrer, it is well enough to say that one was the wife of Thaddeus C. Jones, and devisee under the third clause of the will. Why she was joined as a defendant in ejectment, a purely possessory action, is dark. [Bouton v. Pippin, 192 Mo. 469.] The other was John Clinton Jones, son of Thaddeus C. It seems that on the third day of November, 1906, Thaddeus and his wife made a deed to John Clinton in consideration “of the sum of love and affection and one dollar to them paid by” John Clinton, conveying to him the locus in quo, which deed was acknowledged and spread of record. John Clinton was his own man and doing for himself, we gather, but took no possession under his deed, his father holding possession, proprietorship and domination over the land — his tenant, Pepper, attorning to him.

No question was made below or is lodged here relating to the propriety of joining the landlord and tenant, in the first instance, as defendants in ejectment. We shall assume they were joined by virtue of section 543, Revised Statutes 1899, reading: “... And in actions to recover possession of real estate, the landlord and tenant thereof may be joined as defendants, and any person claiming title or a right of possession to real estate may be made a party plaintiff or ■defendant, as the case may require, to any such action.” "Whether that section is in pari materia with sections 3056, 3057, 3058 and 3060, chapter 24, Revised Statutes 1899, entitled “Ejectment,” or whether the latter chapter is somewhat of a code unto itself in regulating the action of ejectment and the parties “thereto, we need not stop to inquire, there being no ■such question here. But in the interest of jurisprudence, obedience being miserable when there is no ■certainty in the law, it is well to point out that if section 543, supra, announces the right rule in joining “the landlord and tenant (in the first instance) as defendants in action of ejectment and if sections 3056-7-8 and 3060 do not state the whole statutory rule on the subject, then what was said by the writer in Mann v. Doerr, 222 Mo. in the last two paragraphs of page 14, explanatory of the ruling in Hunter v. Wethington, 205 Mo. 284, may have been said unadvisedly; for he did not have section 543 in mind when writing those paragraphs. However, the matter now up is afield under this record and should be dealt with when it comes here as a live and decisive question, rather “than by way of obiter, as a ruling now would be.

II. The construction of the will of John C. Scott is the blunt and single question on which the case breaks. Before attending to the words of the will we may profitably pause a little to marshal and consider applicable rules of construction; for all construction -or interpretation of a writing should proceed on the theory that the rules therefor are on a level with the principal and most worthy parts of the subject-matter. It is with rules, as it is with tools, to use them sensibly we must know them. Our decisions are so many and -so rich with learning in that behalf that new exposition •smacks of vanity. An excess of exposition darkens wisdom. Therefore, we need neither cite nor quote from them to establish mere commonplaces of the law. Nor need we marshal the reasons underlying such commonplaces. Reason is a chief and excellent thing,, as all just men agree, hut to seek (or demand) a reason for everything subverts reason itself. [2 Coke 75.J

Attending then to those pertinent general precepts of the law, whose office it is to quicken the conscience and inform the judgment of courts in interpreting wills, they may, in part, be summarized as follows r

(a) . The best interpreter of a will (all its separate parts being considered) is the will itself. The language of wills is rarely the same, hence each will stands largely on its own terms, and cases construing wills are rarely of universal application.

(b) . To interpret and to reconcile one clause of a will with another, where that can be done without straining the words, or corroding the bowels of the-text, is the best mode of interpretation.

(c) . That interpretation is to be made that will cause the thing to stand rather than fall; for it is a maxim of the law that it is to the interest of the State that the last will of its citizens be sustained. (Interest revpublicae suprema hominum testamenta rata haberi.)

(d) . The intention of the testator is the soul of the will. “All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.’*' [R. S. 1899, sec. 4650.] That statute is but declarative-of a settled and venerable rule of judicial construction - and that intent, when gathered from the four corners of the instrument (if not violative of some established rule of law) must be given full and ungrudging effect— mere technical rules of construction to the contrary notwithstanding.

(e) . In seeking the soul of a will, to-wit, the-intent and meaning of the testator, the court will read the will from the standpoint of the testator as near as may be, considering the relations of the testator to the beneficiaries named and the circumstances surrounding him when it was made, mindful that the sense of the testator’s words is to be taken from the occasion of speaking them, that a will is completed by death and speaks from that time; and that words used are to be understood as having the meaning and sense indicated by the whole instrument. Every clause of the will must be given effect, if that be possible, and to this end, if need he (and only then), words may be supplied or omitted and sentences transposed.

(f) . A will, by force of the very word, is a solemn instrument. The law so deals with it. Mankind so regard it. No man with death in his eye is presumed either to trifle or to lie. A testator sits, a plain man, as a chancellor in a domestic tribunal dealing out equity to the natural objects of his bounty in a decree (final as to him) in the light of his fireside knowledge. Therefore, courts deal with his language in its plain and homespun import, avoiding hairspun theories and overnice refinements and subtlety in interpretation, breeding ambiguities whereby the provisions of the will may be sunk in bogs of doubt or be caused to perish by judicial construction.

(g) . If a devise of an estate be made to a given devisee, the estate granted may not, in words following, be cut down to a less estate by use of ambiguous w'ords inferential in their intent. For example, a fee-simple estate once granted will not be cut down by such mere ambiguous and inferential words following to a fee-tail, or one for life. E converso, if an estate be granted in one clause of the will its quantity may be cut down to a lesser estate by an express provision to the effect, or by words so strong and clear as to have that effect by plain and necessary implication.

(h) . The entailment of estates is obnoxious to the policy of our laws. Therefore, if an estate tail be granted by will or deed either by express words or by necessary implication, it is at once struck down by our statute and) another substituted for it, viz., an estate for life to the first taker, remainder over in fee-simple ■absolute to the next taker, nominated, or by the course of the common law. [R. S. 1899, sec. 4592; ibid, sec. 4594; ibid, see. 4645 and cases infra,.']

Applying the foregoing rules in construing Scott’s will, it must be held that the judgment below was right. We so hold, because:

It may be conceded to appellants that the general language of the second clause of the will, vis., “I give to my daughter Ann Harris, wife of Jefferson Harris, the east half of the southwest quarter,” etc., was sufficient to devise a fee-simple estate without the use of the word “heirs” or “heirs and assigns” or “heirs and assigns forever” or other words earmarking the estate as a fee-simple absolute at common law. That view of the matter arises from the clear words of the statute, section 4646-, Revised Statutes 1899, reading: “In all devises of lands or other estate in this State, in which the words ‘heirs and assigns,’ or ‘heirs and assigns forever,’ are omitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee-simple to the devisee,for all suchdevisedpremises.” Such was the statute when the will was written (R. S. 1855, p. 1574, sec. 46), and when it was probated (R. S. 1865, p. 531, sec. 45). See also Revised Statutes 1899, section 4590, in the Statute of Uses. Now, if the will had stopped as to Ann Harris with its second clause, it is plain that under the statute j'ust set forth she would have taken an estate in fee simple. But the will did not stop with its second clause, and, since it did not stop there, neither should we. By the mandate of the statute we must look further and see if there are “expressions” in the will making it appear that the devise was intended to convey a life estate only, and see whether there was any further devise made of the premises, to take effect after the death of the first taker. We find in clause six the very conditions and “expressions” which the statute provides shall deny to the general words of the granting clause the effect to create an estate in fee-simple absolute. Thus, having also used unequivocal language in the third and fourth clauses in devises made to his two other daughters, which general language, if nothing else appeared, would confer title in fee, the testator in clause six comes back to the subject-matter of all three of his daughters’ devises and- therein limits clauses two, three and four and cuts down the estates there granted by unequivocal words, vis., that the devises (bequests) “here made to my three daughters are made to them and the heirs of their body, forever.” ■ Those are learned and technical words, having a settled meaning in real estate law. They create a fee-tail estate. [Clarkson v. Clarkson, 125 Mo. l. c. 385; Utter v. Sidman, 170 Mo. l. c. 297 et seq.; Bone v. Tyrrell, 113 Mo. 175; Hunter v. Patterson, 142 Mo. 310; Reed v. Lane, 122 Mo. 311; Miller v. Ensminger, 182 Mo. 195.] Such estate tail was by virtue of said statute at once struck down and another substituted, vis., one for life in each of the daughters in the land devised to them respectively; and by virtue of the same statute (and R. S. 1899, sec. 4592 and 4593), the heirs of their respective bodies, alive at the life tenant’s death, took a fee-simple absolute when the respective life estates lapsed.

Reading clause six more closely we see that the devised premises were further devised to take effect after the death of the first devisee. If there were no heirs of the body of any given daughter then alive, the land reverted and descended to the testator’s other heirs (all of them) absolutely under the statute quoted. If there were such heirs of the body, the land went to them on the death of their ancestor, the life tenant. As either the one or the other of these contingencies was bound to happen, the thing resolves itself into a certainty that a “further devise” was “made of the devised premises to take effect after the death of the devisees to whom the same shall be given. ’ ’ [Armor v. Frey, 226 Mo. 646.]

The testamentary provisions here are obviously not the same as in those wills held in judgment in Gannon v. Pauk, 200 Mo. 75; Yocum v. Siler, 160 Mo. 281; Wells v. Fuchs, 226 Mo. 97; Sevier v. Woodson, 205 Mo. 202; and others of that class where there was either an absolute devise of real estate with a contingency following cutting down the estate on its happening, which contingency (under the facts in judgment in those cases) could never happen, or where an attempt was made to cut down an estate granted by ambiguous words following of. inferential intent. Hence, the doctrine of these cases, relied on by appellants, is not applicable here.

An ingenious argument is advanced having for its purpose the interpretation of the sixth clause so that it would be obnoxious to the rule against perpetuities, therefore void and to be read out of the will. We shall not develop the contention, for on any view we can take clause six did not violate the rule against perpetuities. [Shepperd v. Fisher, 206 Mo. l. c. 238 et seq., quod vide.] It created a life estate with a remainder over in fee (in the event of the death of the devisee without heirs) in the heirs of John C. Scott mentioned in the will, and, in the event the devisee died with heirs of her body in being, then in them.

There are minor contentions pro and con in the briefs of learned counsel. For instance, it is argued for respondent that the absence of intensifying and qualifying words, such as. “fee-simple,” “absolute estate,” “absolutely,” and other words frequently used by testators to pass a fee as distinguished from a base or qualified fee, in clause two of the will, is of some significance. Undoubtedly where doubts and ambiguities exist the use of words clearly indicating the grant of a fee-simple estate in the first instance is of value in solving them, but that method of interpreting a will, frequently used where the case demands it, is out of place, absent ambiguity, as here. Again, it is argued for appellants that clauses intervene between the second and sixth of the will and that we should allow that fact some force as tending to impair the operative effect of clause six on clause two. But where clauses clearly relate to each other, as these do, to follow the lead of that argument would override the rules of interpretation we have prescribed for ourselves at the outset, commanding the whole instrument, all its terms and words, to be considered in getting at testator’s intent. Again, it is argued that under the testamentary plan adopted by testator when he wished to grant a life estate he said so in so many words — witness, the life estate granted to his widow by clause one of the will where the phrase, “during her natural life,” is used. That in the absence of similar phrases in other clauses of the will we ought not to construe the intent of the testator to be that his daughters took a life estate only. But learned counsel inadvertently argue ill in that behalf under the terms of this will; for while he does not say in so many words that his daughters should take a life estate, yet by the use of legal terminology, necessarily involving that idea, his intent is clearly seen, and that intent is reinforced by expressions in his will plainly disposing of a remainder after the death of his daughters respectively.

Reference is made on both sides to the justness and fairness of testator’s disposition of his property, assuming respondent’s theory. Respondent defends. Appellants doubt. But where tbe will is plain those contentions are wide of the mark in an action of ejectment.

The case was well tried and well decided. Let the judgment be affirmed. It is so ordered.

All concur!


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    JULIA A. McLAIN, Executrix, et al., v. M. V. B. PARKER, Appellant.
    Division One,
    June 14, 1910.
    1. FRAUD AND DECEIT: Misrepresentations. Where defendant, under the cloak of religion and friendship, in whom plaintiff had reposed confidence and trust due to years of business associations and his knowledge of mining properties, represented-to plaintiff that certain mining properties in New Mexico could be bought for $12,000, and were cheap at that price, and if plaintiff would put up half he would the other half, and received $6000 from plaintiff and bought the properties for $2000, taking the title in his own and plaintiff’s name and fails to account for the balance, plaintiff, who did not discover the fraud until after the mining properties had been disposed of, is entitled to a judgment for $6000 with interest.
    2. —1-: Agent: Exchange of Land. In an exchange of his principal’s lands, an agent has no right to put in his own lands without his principal’s knowledge; and proof of the agency and that the agent’s land was exchanged for that of the principal without his knowledge, is sufficient to avoid the contract, and the damage in case of rescission is the purchase price and interest. However, in this case the evidence shows actual fraud — concealment and deception.
    3. -: Rescinding Contract: Damages: Status Quo. In a suit for fraud and deceit, plaintiff has the right to damages without rescinding the contract. But in this case, based on a purchase of land by defendant for himself and plaintiff for $200, but which he represented to plaintiff actually cost $2200, of which amount plaintiff put up one-half, plaintiff has taken the precaution to make a tender of such instruments as would place defendant in statu quo.

      4. -: Limitations. In matters of fraud and deceit, the Statute of Limitations does not begin to' run until such time as the fraud is discovered. A defendant cannot purposely hide his fraud and deception for years, and studiously so act as to allay the suspicions of one who has reposed confidence and trust in him, and successfully plead the statute when sued for the amount he has fraudulently obtained.
    5. -: Misrepresentations: Value of Property. Representations as to what will be done in the future and as to the value of property to be purchased, though false, are not alone actionable; but where defendant, by his fraud and deceit, in reference to the price to be paid for the property, was the inducing cause of plaintiff’s parting with his money, such false representations become actionable.
    6. -: For Money Wrongfully Obtained: Action at Law. One paying money by reason of the fraud and deceit of another is entitled to recover the amount so lost, together with legal interest. So that where the petition does not undertake to attack a contract between .the vendor and vendee, but alleges that defendant represented to plaintiff that he knew where they could buy property cheap, that plaintiff put up his portion of the money represented to be necessary and defendant put up none; that by that false representation defendant, to whom were left all matters of purchase, induced plaintiff to part with far more money than was necessary to buy the property, and appropriated the balance to his own use, plaintiff is entitled to recover the amount so lost, with interest, and it is immaterial whether the action tried to the court be denominated a suit in equity or one at law.
    Appeal from Jackson Circuit Court. — Eon. John G. Park, Judge.
    Aeeiemed.

      E. P. Garnett and I. O. Pickering for appellant.
    (1) The petition does not state facts sufficient to constitute a cause of action. It is utterly impossible to undo what has been done. The defendant cannot be placed in statu quo. He only bought an undivided half interest. What power has any court to compel him to buy the other half interest ? ‘ ‘ The court clearly has no power to compel the defendant to purchase the plaintiff’s stock in the corporation.” Constant v. Lehman, 52 Kan. 227; Norton v. Bohart, 105 Mo. 631; 24 Am. and Eng. Ency. Law, 622; King v. Wise, 43 Cal'. 628; Pitts v. Weakley, 155 Mo. 134; Tesson v. Ins. Co., 40 Mo. 36. (2) The petition does not charge any actionable misrepresentations. It is well settled that representations as to what will be done in the future and representations as to the value of property, though false, are not actionable. This doctrine applies especially to mining claims which are purely speculative. No action will lie for the expression of any opinion concerning the prospective value of a mining claim, it matters not how fallacious it may prove. Brown v. Mining Co., 194 Mo. 681; Holbrook v. Conner, 60 Me. 578; Hemer v. Cooper, 8 Allen 334; Cooper v. Severing, 106 Mass. 79; Sowers v. Parker, 59 Kan. 12; Cornwall v. McFarland, 150 Mo. 379; Wade v. Ringo, 122 Mo. 326; Scroggins v. Wood, 87 la. 497; People v. Healey, 128 111. 9; Gossett v. Glazier, 165 Mass. 473; Myers v. Summerville, 85 Mo. App. 186; Harrison v. Waldon, 89 Mo. App. 164; Wilson v. Jackson, 167 Mo. 156; Bales v. Merrill, 173 Mo. 494. (3) This being a suit in equity, it should appear from affirmative allegations in the petition that the plaintiff had no plain, adequate and complete remedy at law. This not appearing, the objections to the introduction of any evidence should have been sustained. Benton County v. Morgan, 163 Mo. 678; Hayden v. Railroad, 117 Mo. App. 76; Humphreys v. Milling Co., 98 Mo. 552. (4) The petition plainly shows that if the plaintiff ever had any cause of action against the defendant at all, it was an action at law to recover the difference between what was paid for the mining claims, and what defendant represented the price to be. Assumpsit is maintainable at law, though of equitable character. Henderson v. Koenig, 192 Mo. 695; Winningham v. Fancher, 52 Mo. App. 458; Gossett v. Glazier, 165 Mass. 473; Am v. Am, 81 Mo. App. 133; Hathaway v. Foy, 40 Mo. 540. If plaintiff really paid the defendant more money than was necessary to pay for his interest in the property, “the allegations in the petition that the overpayment was made hy reason of the false and fraudulent representations of defendant, do not necessarily change the course of action from assumpsit for money had and received.” Dobson v. Winner, 26 Mo. App. 329; 24 Am. and Eng. Ency. Law, 622. (5) A party defrauded has two remedies: one at law and one in equity. He cannot pursue both remedies at the same time. “He may rescind the contract, restore what he has received and recover back what he has paid, or he may affirm the contract and recover damages he has sustained by the fraud. He cannot, however, do both. It is as difficult a feat to maintain a cause of action for the consideration paid for the purchase, on the ground of rescission, and one for the fraud which induced it and for breach of contract of purchase itself, in the same action, as it is to ride at the same time two horses.” Wilson v. Cattle Company, 73 Fed. 997; Smith v. Booles, 132 U. S. 125. (6) The petition shows on its face that any alleged cause of action of plaintiff is completely barred by the Statute of Limitations. In order to toll the statute plaintiff pleads that defendant concealed the fact of his fraud and deceit. He does not state in what way any fraud and deceit was concealed. Not only so, but he testifies positively that the only way defendant concealed from him that he did not pay $6000 for the mine himself was that “he has never reported to me about it,” and he is positive that this is the only way defendant concealed the alleged fraud. This is not sufficient. There must be some affirmative act, some trick or device. Wood v. Carpenter, 101 U. S. 141; Buckner v. Colcate, 28 Miss. 434; Nudd v. Hamlin, 8 Allen 130; Shelby Co. v. Bragg, 135 Mo. 296; Railroad v. Bridges, 46 Am. Dee. 528; Burling v. Newlands, 39 Pac. 49; Hyatt v. Wolf, 22 Mo. App. 197; Hunter v. Hunter, 50 Mo. 445; State ex rel. v. Stuart, 111 Mo. App. 478. (7) Before the transaction was finally closed the plaintiff fully investigated the mining proposition and discussed the values with other parties in the mining district. The defendant did nothing to prevent the fullest and freest investigation by plaintiff, and he cannot now claim that he relied on defendant’s representations. Southern Development Co. v. Silva, 125' U. S. 259; Wilson v. Jaekson, 167 Mo. 135; Cornwal v. Real Estate Co., 150 Mo.' 383; Gordon v. Butler, 105 U. S. 556.

      W. B. Thurmond for respondents.
    (1) This entire suit and every count thereof is an equitable proceeding. The entire suit is for relief upon the ground of fraud and unconscionable advantage taken of the plaintiff by the defendant in pretending that the defendant was going in with the plaintiff as partner in .the purchase of these various properties. Nelson v. Betts, 21 Mo. App. 219; Derby v. Donohoe, 208. Mo. 706; Railroad v. Brown, 43 Mo. 297. After having expressly waived a jury, having answered to the merits, having asked for a finding of fact, and tried throughout a case involving such a record as is here, on the theory that the suit is in equity, appellant’s discovery of a lack of equitable jurisdiction comes rather late., Pomeroy v. Benton, 57 Mo. 550'. (2) The petition charges actionable misrepresentations. 14 Am. and Eng. Ency. Law, 122, sec. 12 a, b and c; 20 Cyc. 34, sec. 3; Pomeroy v. Benton, '57 Mo. 531; Cahn v. Reid, 18 Mo. App. 116; Dunn v. White, 63 Mo. 181; 14 Am. and Eng. Ency. Law, p. 68, sec. 4, pp. 69, 70 and 71; Fall v. Hornbeck, 112 S.- W. 41. (3) The Statute of Limitations does not run at all in favor of an agent, a partner, a trustee or any other person occupying fiduciary and confidential relations, so long as such relations exist and the other party has no reason to doubt tbe good faith of his partner, agent, trustee or confidential friend'. Nor does the statute run where the defendant “by absconding or concealing himself or by any other improper act prevents the commencement of an action.” Shelby Co. v. Bragg, 135 Mo. 298; Bank v. Thayer, 184 Mo. 61; Prewitt v. Prewitt, 188 Mo. 675; Hoffman v. Perry, 23 Mo. App. 20; Foley v. Jones, 57 Mo. 64; Dillon v. Bates, 39 Mo. 301; 14 Am. and Eng. Ency. Law, pp. 129,132; Dunn v. White, 63 Mo. 181; House v. Marshall, 18 Mo. 368; Cottrill v. Krum, 100 Mo. 397; Leicher v. Keeney, 98 Mo. App. 405; Bishop v. Seal, 87 Mo. App. 256;'Derby v. Dona-hoe, 208 Mo. 684; Mires v. Summerville, 85 Mo. App. 187; Judd v. Walker, 114 Mo. App. 128.
   GRAVES, J.

— The record in this case covers about one thousand pages, and were it printed as records usually are, would cover about four times that space. Since the trial of the cause nisi, Carey McLain, the plaintiff, has departed this life, and is now here represented by an executrix, but for convenience we shall still speak of him as plaintiff, as was done nisi. The connection is better that way. The plaintiff and defendant were acquaintances of long standing — the one for years a farmer and stock raiser of Kansas, who by dint of hard work and good management had acquired much of this world’s funds — the other, a lawyer, real estate and loan agent of the same State, who by business connections and otherwise had gained, to a degree, prominence and confidence in his sphere of action. Plaintiff, the farmer, was a Presbyterian by religious faith, and defendant, the lawyer, real estate and loan agent, as strongly Congregational in his beliefs and doctrines. Both, to the world, consistent members of the church. While we shall not undertake to quote from the Scriptures or other authorities in the statement of this case, but leave to those interested the task of getting together the proper phraseology and authorship for the thoughts we express, yet the thoughts suggested by the record in this case carry us back to our boyhood recollections of the good old doctrines taught by the inspired in the Good Book. The gist of the case is fraud! and deceit, the petition of eight counts asking for the rescission of as many distinct contracts on the ground of fraud and deceit in the concoction thereof. Blandly stated (although not in language quoted from an authority well known) the plaintiff charges that the defendant donned the livery of righteousness to serve the cause of Mammon, and by so doing entrapped, by his fraud and deceit, this plaintiff. For a time matters of pleading and proof may be commingled in the interest of brevity. In 1868, the plaintiff came to the State of Kansas. Later, he was domiciled in Kansas City, Missouri, and there resided until after the trial and perhaps until his subsequent death. Near the little town of Wells - ville, Kansas, plaintiff lived, and on one corner of his farm stood a “Congregational” church house. Plaintiff, with Western generosity, helped maintain this church (though not of his identical faith) and to it at times came defendant to preach what he called “lay sermons.” Defendant lived at Olathe, Kansas, not far from Wellsville, and for a while was in copartnership in the practice of the law with one John P. St. John, sometime Governor of Kansas and candidate of the Prohibition party for the high and honorable position of President of the United States. Plaintiff was interested much in the cause of prohibition — not as of the surface, but from the heart. So runs this record. Being thus interested, he had implicit faith in Mr. St John. Whether his confidences were fully justified, we doubt much from the disclosures of the record before us. Defendant and St. John, in addition to their ties arising from business association and like political and economical eye-glasses, were brothers-in-law. Not only so, but it would appear that after Mr. St. John had resumed private life, yet having clustered around him the good wishes and confidences of those interested in the cause for which he stood and preached, he engaged in the alluring business of mining, with offices at Olathe, Kansas, and Chicago, and with New Mexico as his field for real action.

In at least some of his work in New Mexico, the defendant and St. John were jointly interested, and in one count of the petition before us, between lines, and in the lines, may be read the charge that they jointly conspired to deceive and defraud the plaintiff, having drawn to their aid a cousin of defendant, and perhaps a Swede, Otto Hansen by name.

The evidence upon the several counts of the petition must be taken together to properly comprehend ■ the gravity of the offense charged against the defendant. Plaintiff claims, and we think properly, that all the transactions between plaintiff and defendant will have to be considered together, in order to see the real gist of the case. In general, the evidence shows that long before any of the transactions pleaded and proven, the plaintiff had much confidence in defendant growing out of their continued friendship, their relation of attorney and client, their other business associations, and the relationship of defendant to St. John, in whom plaintiff had implicit confidence as aforesaid, of which last fact the defendant evidently knew.

With these general statements, we take up the several counts of the petition, together with the proof thereon. Suffice it to now say that after well-worded pleadings in behalf of the defendant the cause was heard, and the trial court found for the plaintiff upon seven counts of the petition. In the other count, as in all, was a tender to return the property, and the defendant accepted the tender, and thus obviated a trial of the issues. Among the issues raised by answer is the Statute of Limitations. We shall note both the pleadings and the proof on each count' in separate paragraphs of the opinion.

I. "We shall go more into detail upon the first count of the petition because it stands as the first alleged fraud between the parties.

By this count of the petition the plaintiff charges fraud in the purchase of some mining claims in New Mexico. Plaintiff' alleges the different things which went to make up the ground work of his confidence in defendant. He alleges their business relations, their church relations, the brotherly manner in which defendant always addressed him as “Brother McLain,” the fact that defendant was a lawyer and experienced not only in the law, but, as a real estate man, had dealt in mining claims and was familiar with the value thereof. He then charges that the defendant represented to plaintiff that he (defendant) knew where they (plaintiff and defendant) could get some good mining claims in New Mexico; that they would have to pay $12,000 therefor, and that the cost thereof would be $12,000; that such claims were valuable and exceedingly cheap at such price. The petition then avers that the cost of the said mining claims was only $2000; and that the defendant knew, such fact, and falsely represented the matter to the plaintiff, by reason of which false representation the plaintiff parted with $6000 in money and property — $3000 in cash and 80 acres of land, worth $3000. The petition also charges that the plaintiff did not discover the fraud until about August, 1903. The suit was instituted shortly thereafter.

It conclusively appears that plaintiff did in fact put up $3000 in cash and 80 acres of land on the strength of what defendant represented to him. From the evidence it appears that these two claims were Owned by one Otto Hansen, a' Swede, then a resident of New Mexico, but who later returned to the old country, where his deposition was taken before a United States consul for this trial. Defendant, evidently knowing the admiration of plaintiff for Mr. St. John, seems to have suggested at the outset of the deal that he and! St. John were interested in property near these claims, and that St. John thought that the claims which were about to be purchased were of great value. This suggestion was let slip at the early talks between plaintiff and defendant concerning these mines. It was as a seed cast into fertile soil. It grew, and defendant evidently knew it would grow, and cast it for that purpose. On the representation that it would take $12,000 to buy the property from Hansen, plaintiff put up $3000 in cash and deeded to St. John 80 acres of land worth $3000. Defendant represented to plaintiff that he could put in some land or property, and later told him that he could deed the farm to St. John as St. John was going to take the farm and give the Swede, Hansen, some rent-bearing property in lieu thereof. One George W. Parker, a cousin of defendant, also appeared in the deal, ostensibly as the agent of defendant and plaintiff. That is, the defendant represented to plaintiff that George W. was using his best endeavors to procure the property for them and had been sent to New Mexico to close the deal for them. Defendant claimed that he was putting in property and cash to the amount of $6000'. When the facts were finally brought to light by the testimony in the case, it appeared that plaintiff was out his six thousand dollars in cash and land; that St. John ostensibly had the 80 acres of land; that St. John also had a few lots in Olathe, Kansas, of uncertain value (estimated at $1400), made to him by defendant through Hansen; that Hansen got $2000 in cash for the deeds to the mines. Where defendant ever put in any cash in the deal does not appear, except from his testimony that he did so do. When, where and what amount in dollars and cents, he fails to recollect. The mines were owned "by Hansen, and lie made the deeds to plaintiff and defendant. He says that all he ever got was $2000 in cash. This was $1000 less than plaintiff paid. It is true that defendant went through the form of deeding his Olathe lots to Hansen, and Hansen (whether knowingly or otherwise, the record is not quite clear) deeded them hack to St. John, the brother-in-law, but the cash that the defendant ought to have paid on the basis of a bona fide deal, is unaccounted for in any reasonable manner. Claim is made that St. John had an option on the lots, and that he was pricing them at $12,000. If he was, it is evident he did not get that sum, for the vagueness of defendant’s recollection precluded the proof. The story of the Swede, Hansen, that he only got $2000, is practically undenied. The trial court evidently reached the conclusion that the defendant, St. John, George W. Parker, and perhaps Otto Hansen, the Swede, conspired to deceive the plaintiff, and the circumstances in evidence justify such a conclusion. One can hardly read this record without concluding that the plaintiff was deceived as to the actual costs of these mines, and in the act defendant was the chief, but not the only, actor. It requires no stretch of imagination under the facts to conclude that defendant knew that Hansen was receiving no such sum of $12,000 for the property. Nor can it be said that the trial court ought to have drawn the conclusion that the property was being purchased of St. John at $12i,000 and defendant was acting bona fide in that kind of a deal. Defendant had urged that St. John spoke favorably of the property, in order to impress plaintiff with the value thereof. He never at once, according to plaintiff, let it be known that St. John was interested' in the sale. Even when the deed was to be made to St. John for the 80 acres of land, it was explained that arrangements had been made with Hansen, in order to get the trade through, to give bim some rentable property in lieu of the farm.

The trial court made an elaborate finding of facts upon this count. In short, such finding reads:

“On the first count of the petition the court finds that on or about and prior to May 29, 1893, the plaintiff was a farmer and stock raiser residing in Franklin county, Kansas,- that defendant was at all the times hereinafter mentioned, and for many years prior thereto had been, an attorney-at-law located at Olathe, Johnson county, Kansas -, that on or about May 29, 1893, or prior thereto, defendant stated to plaintiff that defendant could purchase certain mining claims known as the Big Giant and the Little Giant Mining Claims, situated in Socorro county, New Mexico; that said claims were very valuable and exceedingly cheap at the price which defendant could purchase them; and that the same would be a good bargain at said price; and the defendant then and there proposed to the plaintiff that plaintiff and defendant should go in together in the purchase of said claims, each contributing an equal amount to the purchase thereof, each to own an equal share therein. The defendant represented to plaintiff that said mining claims would cost, and that defendant would be required to pay therefor, the sum of $12,000, or $6000 for the respective interests of plaintiff and defendant; that plaintiff was not accustomed to, nor familiar with mining land, nor the value thereof; that plaintiff had some ten or twelve years theretofore known defendant, and defendant had always professed to be a warm, personal friend of the plaintiff; that plaintiff and defendant were members of the church, and that defendant professed to be an earnest, sincere Christian; that plaintiff placed implicit confidence in defendant’s integrity, honesty and loyalty to him, and that defendant had for some years prior thereto invested moneys of the plaintiff in real estate loans, and plaintiff had trusted defendant in said matters, both with regard to' the form and character of the security; that by reason of the defendant’s being a lawyer and real estate dealer, plaintiff reposed confidence in defendant’s judgment and knowledge of mining property, and relying solely upon tlie representations made by tbe defendants in reference to said mining claims, plaintiff was induced to and did pay to tbe defendant the sum of $6000 as part of the said purchase price, which sum of money defendant then and there represented to plaintiff was necessary to secure plaintiff’s half interest in said mining claim; that the defendant caused the deed to be executed by one Otto Hansen to the plaintiff and the defendant, as grantees; had represented to the plaintiff that he, defendant, had paid the sum of $6000 for a one-half interest in said claim.
“The court further finds that the statements of the defendant to the effect that said mining claims cost $12,000, and that they were worth $12,000, and that defendant had paid $6000 for his share thereof, were each and all of them false, and were falsely and fraudulently made with the purpose and intent to deceive and defraud the plaintiff, and plaintiff was induced by said, statements and by his confidence in the defendant aforesaid, to pay for his interest in said mining claim said sum of $6000.
“The court further finds the fact to be that defendant only paid the sum of $2000 for said mining claim.
“The court further finds that defendant planned to cheat and defraud the plaintiff in and about the purchase of said mining claim; that pursuant to said unlawful and fraudulent scheme and conspiracy, defendant had arranged to secure a purchaser for said mining claim at and for the price and sum of $2000; that defendant caused said George W. Parker to go to New Mexico on or about May 29, 1898, with the ostensible purpose of negotiating with said Hansen to purchase said claim at and for the price of $12,000, whereas, defendant at said time had arranged to purchase said property at the actual sum of $2000; that said Parker’s mission to New Mexico was false, fraudulent and dishonest, and with the purpose and intent upon defendant’s part to deceive and impose upon plaintiff and obtain from him an excessive price for said property.
“The court further finds plaintiff’s contribution to the purchase of said property to be $3000 in cash and a farm in Franklin county, Kansas, taken at an agreed valuation of $3000; that said cash was actually paid by the plaintiff to the defendant, and that said farm was conveyed by plaintiff to said St. John, under the false and fraudulent and deceitful representations by the defendant to him that St. John was to convey rental property of equal value to Hansen, the seller of the mines, whereas, no conveyance of any property whatever from St. John to Hansen was contemplated by any of the parties thereto; and that by means of said trick, device and fraud, said St. John obtained title to said farm worth $3000' without giving any consideration therefor.
“The court further finds that defendant’s only contribution to the purchase of said mining claims was property located in the town of Olathe, Johnson county, Kansas, of the value of about $1400'; that said property was conveyed to said Hansen without consideration, and by said Hansen without consideration again conveyed to said St. John.
“The court further finds that defendant received part of said money and property, in amounts unknown.
‘ ‘ The court further finds that defendant has, during the times mentioned and ever since, concealed the facts of said fraud and deceit, and has always continued to represent to the plaintiff that said , mining claims cost $12,000, and thereby prevented plaintiff from discovering the fraud perpetrated upon him as aforesaid; and that plaintiff did not discover such fraud and deceit, and did not discover the facts until the month of August, 1903, and until within two years prior to the filing of plaintiff’s petition.”

The case is one of fact rather than of law. The judgment on this count was for $10,620, evidently the $6000 with accumulated interest at six per cent.

The findings of the chancellor are well supported by the evidence, the details of which serve no useful purpose. What little property- Parker put into the deal was immediately deeded back by Hausen to St. John and later it would appear that one of the lots ultimately got to George W. Parker.

The defendant’s deposition was taken twice, and then he testified upon the trial. A reading of these several statements is sufficient to convict the defendant of the charge of fraud. The record clearly indicates that defendant knowingly, willfully, and fraudulently imposed upon the plaintiff under the cloak of friendship and religion and by such fraud and deceit induced the plaintiff to part with $6000 of his money and property. If defendant did not get the bulk of it ultimately, it was because he divided up with his distinguished brother-in-law and cousin, for their assistance in the nefarious deal. Such schemes as disclosed by this record deserve an adequate condemnation at the hands of a chancellor, and this was done by the chancellor, nisi.

Nor is there substance in the plea of the Statute of Limitations. When this whole record is considered, there is ample evidence therein to justify the finding of facts, made by the chancellor below, which takes the case out of the Statute of Limitations. The judgment on this count is affirmed.

II. The second count relates to a deal by which it is charged that defendant, whilst acting as plaintiff’s agent to make an exchange of property, exchanged his own (Parker’s) lands to plaintiff, and that the same were practically worthless and known so to be by the said Parker.

Prior to August, 1893, defendant had loaned some of the plaintiff’s money on a house and lot in Olathe, Kansas. Later, through the advice of his agent, Parker, the plaintiff took a conveyance of the lot for his loan, and Parker represented to him that it ought to sell for $500. Parker was looking after the property in the way of repairs and collecting rents. Finally defendant suggested to plaintiff that he thought he could trade the property to some men in Olathe for 200 acres of land in Benton county, Missouri. Plaintiff left it to Parker to determine whether or not it would he a good trade for him, and if so to make it. In order to facilitate the trade, and as requested by Parker, the plaintiff executed a deed to his house and lot in Olathe to Parker. At the time Parker had a deed for 2700 acres of Benton county land, of which this 200 acres was a part. He claims, however, that he only held such deed as a mortgage to secure a loan made-thereon in the sum of $1000. But even on that theory the evidence shows that prior to the trade with McLain, 1280 acres of this land had been deeded to defendant’s daughter, May L. Parker, by defendant and wife, and that the daughter in fact held title for defendant. The two hundred acres conveyed to plaintiff was of this 1280 acres and was conveyed by defendant’s daughter. For some time after the deal the plaintiff never saw the deed, and when he did see it and asked why the deed came from his daughter, the defendant was ready with a plausible explanation, which satisfied the plaintiff, and yet kept him in darkness as to having in fact gotten 200 acres of Parker’s land. The trial court found that the Olathe property traded by defendant was of the value of $600; that defendant was plaintiff’s agent to trade the same; that as such agent he had deeded to plaintiff 200 acres of his own land which was not worth over $200; that defendant had purposely kept from plaintiff’s knowledge the real facts, and the fraud which had been perpetrated upon him. On this count the court rendered judgment for $951.20, evidently the amount of the property, with interest thereon. The agency of Parker .is unquestioned. The fact that he as McLain’s agent, really palmed off upon his principal 200 acres of practically worthless land, belonging to himself, is well established by the proof. As McLain’s agent, Parker had no right to put in his own property without McLain’s knowledge and consent. Such fraud and deceit avoids the contract. The proof in this' case shows actual fraudulent statements, but it need not have gone that far. Proof of the agency, and that without knowledge he had sold his own land to plaintiff, was sufficient. In such case, the contract can be avoided whether beneficial or not. Such contracts are avoided by public policy. The damage in the event of a rescission is the purchase price and interest. [Montgomery v. Hundley, 205 Mo. 138.]

The judgment upon this count is clearly within both the law and the evidence, and should be affirmed.

IH. The second count of the petition just above discussed discloses a transaction somewhat out of the ordinary plan pursued by the defendant in dealing with the plaintiff. Defendant’s general plan seemed to have been to maintain a brotherly feeling and then induce the plaintiff to join him in the purchase of different properties. He continually wrote letters of the most friendly spirit. They were addressed to “Dear Brother McLain,” and closed with the affectation of “Tour brother, M. Y. B. Parker.” One of lesser years and more practical business acumen ought to have read fraud between every line of many of these letters. It would seem that a dumb man might have grasped the idea that perhaps the assumed religious dodge was being overworked, but it appears old man McLain did not. It seems to have never dawned upon him that too much professed brotherly love in the church was being administered to him' in business transactions. In the third count of the petition occurs one of the usual modes employed by defendant to filch the pockets of “Brother McLain.” That usual mode was for “Brother McLain” to be graciously, piously and reverently, taken into partnership, by “Your brother, M. Y. B. Parker.” We have the utmost respect for those who from the heart feel that they can and should address their friends and associates in the manner in which plaintiff was addressed, but we likewise have the deepest contempt for one who feigns such feelings for self-aggrandizement.

But we have somewhat digressed and will return to the third count. By appropriate pleading the plaintiff charged fraud and deceit in a certain contract wherein defendant had induced the plaintiff to join him in the purchase of some mineral land and other property. The facts of both pleading and proof are well stated in the trial court’s finding of facts, which in material parts read:

“The court further finds the facts upon the third count as follows:
“That on and prior to October 20, 1899, plaintiff and defendant had been jointly interested in certain lands and business matters, and that on and prior to said date, defendant represented to plaintiff that defendant had discovered a very valuable mine of mineral land in -Fulton county, Arkansas, consisting of eighty acres of land; that said land could be purchased cheap, and defendant proposed to plaintiff that plaintiff and defendant go in together in the purchase of said eighty acres of land, as well as in other deals and transactions, and that after much solicitation upon the part of defendant, plaintiff agreed with defendant that if defendant was convinced that said land was valuable for mining purposes, plaintiff would invest with the defendant in said land, and contribute an equal share of money with the defendant, and share equally iu said land when purchased; that thereafter defendant purchased said eighty acres of land and took a' deed therefor in his own name, and afterwards conveyed to plaintiff a one-half interest in said land, and on or about said October 20,1899, caused a contract to be drawn and executed by the parties to this action, setting out or purporting to set out their respective interests in said eighty acres of land, and in certain other deals and transactions, which said contract is in writing and is pleaded in full in the third count of plaintiff’s petition.
“The court further finds that prior to the execution of said contract plaintiff had known defendant a long time, and that a relation of trust and confidence existed between them; that plaintiff placed confidence in defendant’s judgment and knowledge of mining property and relied upon the representations made by the defendant, with reference to the value of said land, and relied upon defendant’s statement in the contract aforesaid, that said eighty acres of land actually cost the sum of $2200, and relied upon defendant’s statement as to the cost of the Huntsinger notes mentioned in said contract, whereby pláintiff was induced to and did sign and execute said contract and accepted said deed, and paid the defendant the sum of $1438.90 as plaintiff’s due proportion of said eighty acres of land, and the other items and interest mentioned in said contract, together with plaintiff’s expenses as set out therein. “And the court further finds that the statements made to plaintiff by defendant in parol, and by said written contract, with reference to the cost of said eighty acres of land in Fulton county, Arkansas, and as to the cost of the Huntsinger notes as mentioned in said contract, were false and fraudulent, and were made with the intent to deceive and defraud plaintiff and that plaintiff was induced thereby to pay to the defendant the sum of $1438.90.
“The court further finds that defendant in fact paid only $200 for said eighty acres of land, and not to exceed $340 for said Huntsinger notes.”

The facts upon this count are voluminous but have been well summarized in the findings of fact above. There are disputes in the testimony, but we do not feel that the trial judge erred in his judgment as to which witness he should give credence. On this count the plaintiff had judgment for $1998.14, which was evidently $1438.90, the cash paid by plaintiff to the defendant, with interest. There is no denial of the fact that the defendant got the money, nor do we doubt that fraud and deceit tinctured this deal as in the preceding counts. Plaintiff whilst charging fraud and deceit in the petition, and having the right to sue for damages without rescinding the contract, has taken the precaution in this, as in other counts, to make a tender of such instruments as would place the defendant in statu quo. The record fully sustains the judgment on this count and it will be affirmed.

IV. We shall not go into great details upon the fourth count of the petition. It refers to eighty acres of land adjoining the one mentioned in the third count. The finding of fact made by the chancellor sufficiently states the case. The material portions read:

“The court further finds upon the fourth count as follows:
“That shortly after October 20, 1899, defendant represented to plaintiff that the eighty acres of.land, adjoining the eighty acres of land mentioned in the contract set out in the first count of plaintiff’s petition herein, could be purchased cheap, and proposed that plaintiff and defendant go in together and purchase said second eighty acres of land and contribute equally to the purchase thereof, and own said land in equal parts; that plaintiff expressed a willingness to go into said deal, and defendant thereupon pretended to enter into negotiations for the purchase of said land, and wrote to plaintiff from time to time that defendant was endeavoring to purchase said land for their joint ownership as favorably as possible, and wroté to plaintiff that, after repeated negotiations, he had induced the owner of said land to reduce the price of said land to $380, and advised plaintiff that he and plaintiff purchase said land at said price, which plaintiff accordingly agreed to do, and paid to defendant $190 for plaintiff’s share of the expenses of securing same; that defendant did procure a conveyance of said land from the owner thereof to plaintiff and defendant jointly, said land being described as follows: The northwest quarter of the southwest quarter, and the southeast quarter of section 28, township 31, range 10, in Pulton county, Arkansas.
“The court further finds that at said time and prior and subsequent thereto, a relation of trust and confidence had existed between plaintiff and defendant; that plaintiff placed confidence in defendant’s judgment and knowledge of mining and real property, and relied solely upon the representations made by defendant with reference to the value of said eighty acres of land, and with reference to what same would cost; that plaintiff was thereby induced to and did pay defendant $214; that defendant caused a deed to be executed by the owner of said land, one J. C. Worsham, to said land to defendant, and afterwards defendant conveyed one-half interest therein to plaintiff, representing that defendant had paid an equal sum of money for defendant’s half interest in said land.
“The court further finds that the statements of defendant that he had paid $380 for said land, and that he had been negotiating with the owner thereof, endeavoring to secure a reduction of the price, and had finally succeeded in reducing the price to $380, and that the defendant had paid $190 for a one-half interest in said land, were each and all of them false, and were falsely and fraudulently made with the purpose and intent of deceiving and defrauding plaintiff; and that said statements did deceive and defraud said plaintiff; and that plaintiff was induced thereby, by his confidence in defendant, to pay defendant said sum of $214.
“The court further finds that defendant did not, in fact, pay $380 for said land, but, on the contrary, contracted to pay $200; that defendant has at all times concealed the fact of his' fraud and deceit aforesaid, and has always continued to represent to plaintiff that said eighty acres of land cost $380, and has prevented plaintiff from discovering the fraud perpetrated upon him; that plaintiff did not discover such fraud and deceit, and did not discover the facts at all until on or about December 23, 1904; that although often requested so to do, defendant has refused to repay plaintiff the sum of $214.”

The facts found are fully warranted by the evidence upon this count. The judgment is small, but ought to be affirmed.

V. We shall not go further into the details of subsequent counts and the findings of fact thereon. Suffice it to say that in all of the different deals, save and except the one mentioned in the second count, the same general plan was pursued. Defendant would find, to his mind, a valuable piece of property, and induce the plaintiff to join him in the purchase thereof, sometimes taking a half-interest and at other times a different interest. At all times, the plaintiff seems to have furnished as much or more cash than was necessary to carry the whole deal. At all times the amount put in by plaintiff was the result of the fraud and deceit of the defendant. During all the years of these transactions the plaintiff was blinded to an investigation of the facts by the confidence that he had in defendant purposely induced by the conduct, actions and representations of defendant. The several findings are based upon the actual cash which plaintiff was induced to part with on account of the fraud and deceit practiced, together with six per cent interest thereon. As stated above the plan of operation being so similar in all counts, except the second, we shall pass to a review of the several positions taken here by defendant, without going into further detail.

VI. It is earnestly insisted that the Statute of Limitations has run upon these claims. This would be true as to at least some of them, but for things disclosed in the record. As stated elsewhere, it is important to consider the whole case together, in order to determine the plan and scheme of defendant’s operations. When that is done, it is as clear as a noonday’s sun. Nor was the plan one unknown to some real estate transactions. Courts are not blinded as are bats. Prom this record it appears conclusively that defendant’s idea was to cultivate an intimate relationship between himself and the plaintiff, and to use such relationship to his own advancement. Men of means can be induced to enter into business ventures with friends, and this the defendant seems to have fully .appreciated. In each instance, save the one, the plaintiff was approached in the spirit of friendship, and a gentle hint given that big money was in sight in a certain deal, and out of friendship plaintiff would be taken in on the deal. It would seem almost incredible that one could be taken in so often, yet when the endearing letters written by defendant are read, the confidence of plaintiff considered, his age and environments considered, it is not beyond some of our own observations. The circumstances detailed in this evidence would strongly tend to show that the real characters of these deals were hid from the plaintiff until a short time before this action was begun. Not only so, but they were purposely and studiously concealed by defendant. Numerous letters in evidence would lend light as to why the continued confidence was held by plaintiff practically up to the end. One cannot purposely hide his fraud and deception for years, and thus plead the Statute of Limitations. Nor can one purposely act (as the record would strongly tend to indicate in this case) so as to allay the suspicions of his opponent, and then say that he ought to have been more diligent in discovering the fraud. The facts in evidence are such as to obviate the running of the statute. In matters of fraud and deceit, the statute does not begin to run until such time as the fraud is discovered.

VII. Another contention of the defendant, and especially as to the first and most important count of the petition, is that the petition does not charge any actionable representations. The point here is that defendant represented to plaintiff that they could purchase these mining claims for so much money, and that they were exceedingly cheap at the price, and a large profit' could be made on such purchase. It is then said by the defendant in the brief, “It is well settled that representations as to what will be done in the future and representations as to value of property, though false, are not actionable.”

It will not be necessary to discuss the cases cited under this contention. Defendant has overlooked the full scope of the petition. He has also overlooked the real issue in the case and the point of the judgment. As elsewhere stated the several counts of the petition do ask to rescind the contract and offer to place the parties in statu quo, yet one prominent feature of each count is that the defendant, by his fraud and deceit in reference to the price to be paid for the several properties and the amounts to be paid by each, was the inducing cause of plaintiff’s parting with his money. Not only so, but the evidence shows that the usual method of payment was for plaintiff to turn over his share of the alleged cost to defendant, and trust defendant to attend to the whole transaction. The record would indicate that such was the theory below —at least, one of the theories below. The judgment is largely based upon this theory. The prayer of count one reads:

“Wherefore, by reason of the premises,.plaintiff prays that the contract between plaintiff and defendant as to the ownership of said mining claims be rescinded, annulled and for naught held, and that the plaintiff have and recover from the defendant the sum of $6000, together with interest thereon at the rate of sis per cent per annum from the time of such payment of $6000 until repaid to plaintiff, and plaintiff prays for such other and further relief in the premises as in equity and good conscience he may be entitled to receive.” ■

The petition, being one in equity and calling for general relief, is broad enough to uphold a judgment upon this theory of the petition. There is a specific charge that there was fraud and deceit in these regards. There is ample evidence to sustain the charges. The judgment and findings of fact sufficiently conform to this charge and the proof thereon. This to our mind is sufficient, and other allegations may be treated as surplusage.

VIII. It is also urged that the remedy of plaintiff is one at law and not in equity, and further that if the plaintiff was induced to pay more than he should have paid for the properties, by reason of the false statements made by defendánt as to the cost thereof, then his remedy was at law to recover from the defendánt the difference between what he (the plaintiff) actually paid, and the price for which the property was actually contracted. In this it strikes us that defendant has again overlooked the real issues of this case. Ia these several counts the gist of the action is that the plaintiff was induced to enter into an agreement with the defendant to take a certain interest in the property (usually a half interest) and that this agreement (the one between plaintiff and defendant) was superinduced by fraud and deceit in the particulars above described. The charge in the petition does not undertake to attack the contract made by defendant with the party from whom the property was purchased, but only the agreement and contract between plaintiff and defendant by which their respective interests in the property were determined. The evidence shows that the plaintiff left all matters relating to the several purchases to defendant. This was under their own agreement and contract, and has no special relation to the actual contract with the party from whom the property was purchased. Plaintiff could not well attack the contracts with the party from whom the property was purchased, because by the several agreements between plaintiff and the defendant, the defendant was the agent of the plaintiff. This of course is not absolutely conclusive, because there might he a situation where the seller would fraudulently connive with an agent, which might avoid the contract. This situation, whilst indicated by the proof under the first count, is not pressed, and is not the turning point of the judgment below.

The gist of these several counts is fraud and deceit, and money paid out to defendant in consequence thereof, and the prayer of the petition is to recover the money so obtained, with interest thereon. The judgment responds to the petition, its prayer and the proof. It is immaterial how we classify the action. It was tried before the court, without objection, and without the intervention of a jury. So that even if we consider that such an action for fraud and deceit is and should be considered as an action at law, the defendant is in no position to complain. One paying money by reason of the fraud and deceit of another is entitled to recover the amount so lost, together with legal interest thereon from the date of the payment. The circumstances of this case are different from one where the party purchasing property from another brings a direct action against the seller for fraud and. deceit, and in such action elects to hold to what he receives under the contract, but to sue for the damages arising from the deceit and fraud. In the latter instance we have held that the purchaser may hold what he has and recover even for the benefits of the bargain. [Kendrick v. Ryus, 225 Mo. 150.]

In this case, the plaintiff plants himself upon a contract between himself and the defendant, and only asks that he be relieved from his contract with defend-, ant, i. e., that he be permitted to return to defendant all that he has received, by reason of their said agreements, and receive from the defendant what money he had paid defendant, by reason of the fraud and deceit, together with legal interest. To this we think he is entitled. But for the statement that defendant was putting in an equal share, or a proportionate share of the purchase price, the plaintiff might not have entered into the agreement at all. Certain it is that had all the facts been disclosed he would not have, entered into these several agreements. So that on this point we think that defendant has misconceived the full force of the petition. In this petition, the plaintiff is not undertaking to put the seller of the property in statu quo, nor is he asking that the contract of the seller be annulled. He simply charges that he and defendant had certain talks and agreements as to how they would purchase the property; that in such defendant misrepresented the facts; that such fraud and deceit induced him to enter into the business relationship with the defendant; that by reason of the fraud and deceit as practiced, he has paid to defendant, for their joint benefit, the several amounts sued for in this action. Other points are made, hut these are the substantial ones. It occurs to us that the plaintiff has been induced to part with his money upon and by reason of the fraud and deceit, for years practiced upon him by defendant. It also appears that plaintiff acted with reasonable promptness after the discovery of such fraud. We are therefore of opinion that the judgment nisi, should be affirmed. It is so ordered.

All concur.

ON MOTION FOB BEiHEABINGr.

It is argued in the motion for rehearing that we have overlooked those cases applicable to the Statute of Limitations, which in effect hold, that one must exercise due diligence in discovering the fraud and if he do not so do the statute, runs as against his cause of action. We have no fault to find with these cases nor the doctrine which they announce. The doctrine is sound and the cases in principle right, but the facts do not apply here. In the ease at bar a fiduciary relation is shown. Not only so, but the entire record is such- as to indicate that for all these years there was a studied effort on the part of the defendant to keep the plaintiff in a state of mind which would disarm him of suspicion, and prevent an investigation of the facts. The evidence indicates that for years the defendant was diligent in his effort to disarm the plaintiff of suspicion, and thereby preclude an investigation. Had the first deal stopped with the fraud therein committed, the doctrine of the cases relied upon by the defendant would have been applicable. But such was not the case. We tried to make it clear in the first opinion, that there was a studied effort ever afterwards to disarm the plaintiff of suspicion, and thus preclude an investigation. We so indicated when in the original opinion we said that all the transactions between the parties must be considered together. From the whole relationship appears the studied effort to disarm the plaintiff of any suspicion of fraud. One cannot perpetrate a fraud and then for years thereafter use fraudulent means and methods to allay suspicion and then he in the attitude of claiming that the Statute of Limitations has run. To so hold would he to give such a party the advantage of his own wrong. By his own wrong, we do not mean the original wrong of the original fraud and deceit, hut the subsequent wrong and further fraud and deceit in thus allaying the suspicions of the party for the purpose of preventing investigation. The record in this case shows a fraudulent scheme which was carried on for some years, each act therein being calculated to obviate an investigation of previous acts. One who wrongs another by fraud and deceit, and then further wrongs him by a later fraud and deceit, intended and calculated to disarm the party of suspicion, and to prevent an investigation, is in no position to charge negligence or laches in not sooner making investigation.

It is also urged that the opinion is based upon an alleged conspiracy between defendant, St.- John, and others — and that there is no such charge in the petition. We do say in the opinion that the evidence strongly tends to convict defendant and others. In so saying we were but speaking of the record before us. St. John was not a party and did not speak for himself. What he may have been able to show was not in the case. Why his statement of the case was not in the record upon either side does not clearly appear. True it is that he and others, not parties to the record, cannot be convicted of conspiracy without a day in court. But Parker was in court. The facts are in evidence, and it is no unfair deduction from the evidence before us to say that it tended to show that Parker had used others in the perpetration of his fraud upon plaintiff. We think the motion for rehearing should be over ruled.