Opinion
No. 40975.
February 14, 1949.
1. APPEAL AND ERROR: Motion to Dismiss Overruled. The Supreme Court would be justified in dismissing the appeal because of an improper statement that violates Rule 1.08, but the case will be decided on the merits.
2. DEEDS: Fraud: Cancellation of Instruments: Deed to Wife and Son: False Representations Not Established. The evidence does not establish that plaintiff was induced by false representations to join in a deed to his wife and son of property held as tenants by the entirety.
3. DEEDS: Cancellation of Instruments: Deed to Wife and Son: Undue Influence Not Proved. The evidence indicated that plaintiff was of sound mind when he joined in a deed to his wife and son of property held as tenants by the entirety. While there was a confidential relation and there was only a nominal consideration for the deed, the burden of proof to establish undue influence remained with plaintiff, and the evidence preponderated in favor of defendants. The finding of the chancellor in favor of defendants is sustained.
4. EVIDENCE: Equity: Incompetent Evidence Not Prejudicial. Incompetent evidence admitted against plaintiff was not prejudicial, and in an equity case the appellate court will determine the issues from the competent evidence shown by the record.
Appeal from Howard Circuit Court. — Hon. Lawrence Holman, Judge.
AFFIRMED.
Luman Spry for appellant.
(1) The court erred in admitting incompetent, irrelevant, and immaterial testimony offered by the defendants over the objection of the plaintiff. (2) The court erred in excluding competent material and relevant testimony offered by the plaintiff over the objection of the plaintiff. (3) One, having a dominant mind, who uses undue influence on another having a subservient mind to obtain a conveyance of land to the person having the dominant mind gets a void title thereto. Manningham v. Manningham, 52 S.W.2d 825; Coleman v. Cable Co., 168 S.W.2d 1060; Boggess v. Boggess, 29 S.W. 1018. (4) Fraud vitiates all things into which it enters. A deed obtained by fraud is null and void. Jones v. Belshe, 141 S.W. 1130; Gockel v. Gockel, 66 S.W.2d 867; Finley v. Williams, 29 S.W.2d 103. (5) A deed is a sealed contract, and all contracts require a valid consideration. Jones v. Belshe, 141 S.W. 1130; Minage v. Ramage, 3 S.W.2d 720. (6) A presumption of undue influence is raised when the appellant proved confidential relationship existing between himself and the respondents; and facts and circumstances tending to show such influence. Ulrich v. Zimmerman, 163 S.W.2d 567.
Wilbur F. Daniels for respondents.
(1) Appellant's statement on appeal violates Supreme Court Rule 1.08 (a) (2) and said appeal should be dismissed. Botto v. James, 209 S.W.2d l.c. 259. (2) Appellant's assignment of errors 1 and 2 are too general and preserve nothing for review. Rules of the Supreme Court, 1.08 (a) (2); Botto v. James, supra, l.c. 260; Wheeler v. Cantwell, 104 S.W.2d 744; Scheidegger v. Thompson, 174 S.W.2d 216; Norman v. Jefferson City Coca Cola Bottling Co., 211 S.W.2d l.c. 557. (3) Cancellation of a deed is an exertion of equity's most extraordinary power which ought not to be exercised except where the evidence is clear, cogent and convincing. 26 C.J.S., sec. 208, p. 642; Lastofka v. Lastofka, 99 S.W.2d 46; Hamilton v. Steininger, 168 S.W.2d 59; Stubblefield v. Husband, 106 S.W.2d l.c. 423. (4) The appellate court will defer to the findings of the chancellor where it is not against the weight of the evidence. Stubblefield v. Husband, supra, l.c. 423; Hamilton v. Steininger, supra, l.c. 67; Botto v. James, supra, l.c. 260. (5) Voluntary conveyance between the parties is valid and the question of consideration is immaterial. Hamilton v. Steininger, supra, l.c. 67; Robinson v. Field, 117 S.W.2d l.c. 312. (6) The facts and evidence are not sufficient to show fraud, misrepresentation, undue influence, or lack of mental capacity. Lastofka v. Lastofka, supra; Hamilton v. Steininger, supra; Horn v. Owens, 171 S.W.2d 585; Edinger v. Kratzer, 175 S.W.2d 807. (7) Delusion, old age and disease are merely circumstances to be scanned by the court. 26 C.J.S., sec. 54, pp. 265, 266.
Plaintiff sued his ex-wife and their son to set aside two deeds to real estate on the grounds of false representation and undue influence. The decree was for defendants and plaintiff appeals.
Respondents have filed a motion to dismiss the appeal for failure of appellant to file a proper brief in compliance with our rule 1.08. The purported statement of facts is somewhat argumentative and contains not a single citation to a page in the transcript. We would be justified in dismissing the appeal, but are reluctant to do so and will decide the case on the merits.
Appellant and respondent Wilhelmina were married in 1916. To that marriage were born six children, the eldest of them being respondent Frederick. Appellant had two children by a former marriage. At the time of the trial appellant was 72 years of age, respondent Wilhelmina was 52 and Frederick was 31. For many years after the marriage the parties rented and operated a farm as tenants. One by one all the children except respondent Frederick left and established homes for themselves. In February, 1941, respondent Wilhelmina negotiated the purchase of the 148 acre farm the title to which is now in dispute. A down payment of $700.00 was made and a deed of trust for $4,300.00 was executed. The title was taken in the names of appellant and Wilhelmina as husband and wife. Appellant testified that the down payment was his money, Wilhelmina testified it was hers. The evidence is undisputed that she made the deal and that appellant took no part in the negotiations and probably did not want the purchase made. The parties moved upon the farm and thereafter Wilhelmina managed it, collected the income and deposited it in her own name, paid the expenses including the interest and some payments on the principal of the deed of trust. The work on the farm was done by respondent Frederick. Appellant did not work except on rare occasions he performed chores around the house. There was some evidence that during part of the time appellant's health was not good. In later years he suffered from high blood pressure and swollen feet. For this trouble he was in a hospital under the treatment of Dr. Shaw for three days in February, 1947.
On September 3, 1947, appellant and his wife, Wilhelmina, conveyed the farm to a straw person, Mary Gibbs, and she conveyed it to Wilhelmina and Frederick. These are the deeds which appellant now seeks to set aside.
As stated, the petition is based upon false representation and undue influence. The only testimony of a representation was given by appellant. He said that his son, Frederick, told him, in substance, that as the title stood appellant owned no interest and he had better have it changed. But appellant also testified that he knew the title stood in the joint names of himself and wife and believed the farm was owned by them "fifty-fifty."
Appellant's testimony was contradicted by the respondents. Wilhelmina said that appellant came to her on August 30, 1947, and said: "`What do you think about making my part of the farm over to Cap [nickname for Frederick]?' I said: `What is that for?' And he said, `Well, the rest of the children don't do anything.' And I said, `I won't have anything to do with it.' And I didn't have anything to do with it, except I signed the deed.'"
"I didn't care about it because it was a joint deed, and after he was gone it would be mine anyway."
[540] Respondent Frederick testified that appellant told him "Well, the rest of them won't do anything and I think I will deed my half to you." A few days later appellant and respondents went to town and Frederick, after consulting with the agent of the holder of the deed of trust, procured a lawyer to prepare the deeds and they were executed. Shortly thereafter appellant went to the home of one of his other children. Both respondents testified that they expected him to return and they were willing to support and care for him. He did not return and Wilhelmina later procured a divorce.
Appellant's testimony of a false representation as to the state of the title was contradicted by his own admission that he knew how the title stood. His testimony was also contradicted by respondents and we cannot say that the chancellor, who saw and heard the witnesses, erred in ruling that issue against appellant.
Appellant's motion for new trial in the trial court and his points in this court are couched in such general terms that they do not clearly present any question for review. However, he does argue generally the questions of undue influence and rulings on evidence.
[3, 4] As to undue influence the brief states that, by reason of age and illness, appellant's mind had been so impaired as to make him easily influenced. There is no evidence and no claim that he is a person of unsound mind. The only real evidence as to his mental incapacity was given by Dr. Shaw who saw him three days in February, 1947. The doctor said he was then suffering from high blood pressure and would then have been incapable of making a deed, but he also said appellant left the hospital much improved. Some of appellant's children testified that his memory was not good, but none of them related any incident which tends to raise an inference of mental incapacity. On the contrary, many disinterested witnesses, who saw and talked with appellant frequently over a long period, testified that there was nothing to indicate that his mind was unsound or had deteriorated.
In his rulings upon the evidence the chancellor was liberal with appellant. In some instances he stated that he believed evidence offered by appellant was not admissible, but he would hear the whole story. Over appellant's objection he admitted a number of checks given by respondents. It was admitted, in effect, that the account came from the income from the farm. The checks may have been immaterial, but we fail to see how they could be prejudicial.
Appellant says that a confidential relation existed between the parties which cast the burden upon respondents to prove that they did not influence appellant to make the deed. Such is not the law. We may assume that a confidential relation, arising out of the close kinship of the parties, did exist. Also, that the deed being only for a nominal consideration the chancellor was required to more carefully consider the testimony, but the burden of proof remained upon appellant to prove undue influence.
We have carefully read the transcript. There is one conflict in the evidence, but we believe it preponderates in favor of respondents.
All the points made by appellant have been decided by this court contrary to his contentions and, upon evidence stronger than he produced, we have refused to set aside deeds. See the following cases: Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59; Horn v. Owens (Mo.) 171 S.W.2d 585. Undue influence will not be inferred from confidential relation. Burden of proof remains with plaintiff. [Edinger v. Kratzer (Mo.) 175 S.W.2d 807.] In equity appeals it is ordinarily unnecessary to reverse for improper rulings on evidence, as the appellate court will determine the issues from the competent evidence shown by the record.
The judgment is affirmed. All concur.