Opinion
June 11, 1930.
1. PLEADING: Cause of Action. An objection that the petition does not contain allegations of material facts sufficient to constitute a cause of action, may be made by defendants for the first time in the appellate court.
2. ____: ____: Fraud: Statement of Facts. A literal averment of fraud in a pleading is not essential to its sufficiency, if facts are affirmatively stated therein which of themselves constitute fraud in law.
3. ____: ____: Objection After Verdict. If no demurrer to the petition is filed, and no objection that it fails to state a cause of action is made until after verdict, or is made for the first time in the appellate court, it will be construed liberally, and held sufficient if it defectively states a cause of action, or if a cause of action can be implied from the allegations of material facts stated.
4. DEED: Cancellation: Consideration: Condition Subsequent. Although the deed contains no condition subsequent, it may be cancelled where the grantees fail to perform the agreement set forth therein.
5. PLEADING: Inconsistent Affirmative Defense. It is not error to strike from the answer an affirmative defense, where it is inconsistent with a defense elsewhere pleaded, and proof of the one will disprove the other. Despite the statute (Sec. 1233, R.S. 1919) the rule is that where distinct and separate defenses are included in the same answer they must be consistent with each other.
6. ____: ____: Deed: Cancellation. Where a deed is based on a consideration of care and support of the grantor to be rendered by the grantees and they have in part performed said agreement, and the grantor brings suit against them to cancel the deed on the ground that they obtained it by fraud and have refused to perform the condition, and the grantees in their answer deny that they promised future services, care and attention for and to the grantor in consideration for said deed, a further affirmative defense that the consideration for the deed was services rendered the grantor before said deed was made, and that they, the grantees, are not willing to render to the grantor, as they have done in the past, at his request, any helpful future service, is properly stricken out, it being inconsistent with the other defense, and the proof of the one will disprove the other.
7. DEED: Cancellation: Part Performance. A deed in consideration for future care and support, although partly performed, may be cancelled in a suit by the grantor where the grantees deny that they ever made a contract to care for the grantor during the remainder of his life, or where fraud entered into the transaction.
8. ____: Consideration: Investigation. The consideration of a deed is open to investigation: a clause therein acknowledging payment of the purchase money is somewhat in the nature of a receipt, and being such is subject to parol explanation.
9. ____: Nominal Consideration. One cent, one dime and one dollar are technical words used to express a nominal consideration; and an expressed consideration of "one dollar and other good and valuable considerations" is open to investigation and explanation; indeed, the "one dollar" may be treated as surplusage in view of the words following it.
10. ____: Cancellation: Fraud: Consideration. The failure of the grantees to perform their promise to support the grantor, made in consideration of a conveyance of the land to them, may be presented as a ground of relief by the grantor as evidencing fraud in the transaction, and equity will afford him relief on the ground of fraud or failure of consideration, and particularly so where he is advanced in years and without other means of support. And if the rescission of the contract cannot be referred to any other head of equity, the court may presume that it was made in the first instance with fraudulent intent.
11. ____: ____: Deference to Chancellor. In a suit to cancel a deed, where the issue turns upon the credibility of the witnesses, this court, on appeal, will defer to the finding of the facts by the trial chancellor.
Appeal from Pulaski Circuit Court. — Hon. W.E. Baron, Judge.
AFFIRMED.
Thomas A. Shockley and Lorts Breuer for appellants.
(1) The petition does not state facts sufficient to constitute a cause of action against defendants, and this assignment of error can be raised for the first time in the appellate court. Alward v. Boatwright, 193 S.W. (Mo.) 568; Sec. 1230, R.S. 1919; Titus v. Development Co., 264 Mo. 240; Carpenter v. St. Joseph, 263 Mo. 711; Chandler v. Railroad, 251 Mo. 599; Stonemetz v. Head, 248 Mo. 254; Turner v. Hunter, 225 Mo. 84; Wilson v. Darrow, 223 Mo. 531; McQuitty v. Wilhite, 218 Mo. 591, 131 Am. St. 561; Hudson v. Cahoon, 193 Mo. 557; Hoffman v. McCracken, 168 Mo. 343; Paddock v. Somes, 102 Mo. 226, 10 L.R.A. 254. (2) The deed contains no condition subsequent, and hence the petition based thereon does not allege any facts which would warrant a court of equity in setting aside and cancelling the same, even if defendants failed to comply with the agreement specified in the deed. Alward v. Boatwright, 193 S.W. 570; Shafer v. Shafer, 190 S.W. 323; Catron v. Scarritt Collegiate Inst., 264 Mo. 713; Lackland v. Hadley, 260 Mo. 570; Haden v. Railroad, 222 Mo. 138; Anderson v. Gaines, 156 Mo. 670; Studdard v. Wells, 120 Mo. 29; O'Brien v. Wagner, 94 Mo. 96, 4 Am. St. 362; Ellis v. Kyger, 90 Mo. 600; Clark v. Town of Brookfield, 81 Mo. 506, 51 Am. St. 243; Moore v. Wingate, 53 Mo. 400; Messersmith v. Messersmith, 22 Mo. 370. Before a deed could be set aside in a proceeding in equity, the petition should have alleged that the consideration was for care and support that the grantees were insolvent, and also have charged fraud or improper influence on the part of the grantees to obtain the deed, and these allegations should have been supported by proof. Anderson v. Gaines, 156 Mo. 664; Brown v. Fickle, 135 Mo. 405; Taylor v. Crocket, 123 Mo. 300; Weiss v. Heitcamp, 127 Mo. 23; Rogers v. Ramey, 137 Mo. 596; Lackland v. Hadley, 260 Mo. 572; Allison v. Cemetery Co., 283 Mo. 431, 223 S.W. 43. A deed made in consideration of future support of the grantor, should recite that fact as a condition precedent, and that the services should be performed before the title should vest. Studdard v. Wells, 120 Mo. 25; Evangelical Church v. Schreiber, 277 Mo. 128. (3) The court erred in striking out a portion of defendants' answer, and afterwards permitting the plaintiff, over the objection of defendants, to offer evidence on the issues stricken out, and excluding evidence offered by defendants on said issues. Warehouse Storage Co. v. Toomey, 163 S.W. 558; Booker v. Ry. Co., 204 S.W. 556; Stephens v. El Dorado Springs, 185 Mo. App. 471. (4) Where a deed is based on a consideration of care and support to be rendered by the grantee, it is error to set aside and cancel such deed where there has been partial performance. McElroy v. Masterson, 84 C.C.A. 202, 156 F. 36; Lewis v. Lewis, 92 Am. St. 240; Risley v. McNiece, 71 Ind. 434; Leonard v. Smith, 80 Iowa 194; Woolcott v. Woolcott, 138 Mich. 176; Scott v. Scott, 89 Wis. 93; Williams v. Langwill, 25 L.R.A. (N.S.) 932. (5) In equity cases the appellate court will not be concluded by the chancellor's findings, when not supported by the weight of the evidence. Gross v. Byler, 297 S.W. 391 (6) Equity cases are substantially triable de novo in the Supreme Court, and this court, "while deferring somewhat to the conclusions of fact reached by the trial court, has not been bound by its findings of fact, nor its conclusions of law thereon, but has ever exercised a supervisory control over both." Blount v. Spratt, 113 Mo. 48; Benne v. Schnecko, 100 Mo. 250; Gibbs v. Haughowout, 207 Mo. 384; Givens v. Ott, 222 Mo. 395; Cohron v. Polk, 252 Mo. 261. It has been said that "otherwise appeals in chancery causes would be idle formalities." Gottfried v. Bray, 208 Mo. 663; Benne v. Schnecko, 100 Mo. 257; Blount v. Spratt, 113 Mo. 54; McMurray v. McMurray, 180 Mo. 533; Ryan v. Dunlap, 111 Mo. 618; Glasgow Milling Co. v. Burnes, 144 Mo. 196; Fishing Club v. Jackman, 172 Mo. App. 569.
Eldredge Bell and Phil M. Donnelly for respondent.
(1) It is true that if respondent's petition fails to state any cause of action at all that such defect may be raised for the first time in this court, but that is not the situation in this case, for the petition states a cause of action for the cancellation of the deed on the ground of failure of consideration and fraud. The petition clearly and cognizantly states that the deed was given in consideration of appellants taking care of respondent the remainder of his life, burying him and paying all expenses, and that this was the sole consideration for the deed and that the appellants immediately after receiving and recording the deed advised him that they were ready to take him home and thus failed to carry out their part of the bargain. The petition further states that "plaintiff is injured and defrauded by defendants, and he has no adequate remedy at law." State ex rel. v. Allen, 310 Mo. 378, 276 S.W. 877; Timmerman v. Architectural Iron Co., 318 Mo. 421, 1 S.W.2d 791; East St. Louis Ice Cold Storage Co. v. Kuhlman, 238 Mo. 702; Grove v. Kansas City, 75 Mo. 675; Young v. Iron Co., 103 Mo. 327; Donaldson v. Butler County, 98 Mo. 166; Haseltine v. Smith, 154 Mo. 413; Broyhill v. Norton, 175 Mo. 202; State ex rel. v. Delaney, 122 Mo. App. 243; Alter v. Frick, 62 Mo. App. 453; Murphy v. Ins. Co., 70 Mo. App. 82. Also, the court in Hyder v. Chicago, M. St. P. Ry. Co., 219 Mo. App. 465, 275 S.W. 977; Becke v. Forsee (Mo. App.), 199 S.W. 734; Armstrong v. Railroad, 195 Mo. App. 83, 190 S.W. 944; State ex rel. v. Sims, 286 S.W. 832, 274 S.W. 359, 309 Mo. 18; Kelsey v. Israel, 298 S.W. 1065; Warner v. Oriel Glass Co., 8 S.W.2d 846; Foster v. Chicago, B. Q.R. Co., 14 S.W.2d 561. A total failure of consideration is alleged and also fraud. (2) As to the third and fourth points in appellants' brief, they are not in any position to argue that when a deed is based on a consideration of care and support to be rendered by the grantee, it is error to set aside and cancel such deed where there has been partial performance, for the reason that in their answer they denied that the deed was given in consideration of a promise by them that they would care for the respondent as long as he lived and set up an affirmative defense to the effect that the deed was given in consideration of past care and labor done on their part for respondent. Smith v. Culligan, 74 Mo. 387; Lee v. Dodd, 20 Mo. App. 271; Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267; Fugate v. Pierce, 49 Mo. 441; Ledbetter v. Ledbetter, 88 Mo. 60; Vaughn v. Conran, 20 S.W.2d 968. The test is whether or not the proof of one defense necessarily disproves the other. Vaughn v. Conran, 20 S.W.2d 968; Nelson v. Brodhack, 44 Mo. 599; 100 Am. Dec. 328; Keane v. Kyne, 2 Mo. App. 317; Schaefer v. Causey, 8 Mo. App. 142; Wood v. Hilbish, 23 Mo. App. 389; Atterbury v. Hendricks, 127 Mo. App. 47. (3) The court below was correct in ruling as it did as to the merits of this case. The consideration of a deed is open to investigation. The clause acknowledging the payment of the purchase money is somewhat in the nature of a receipt and is subject to parol explanation. Chambers v. Chambers, 227 Mo. 287; Strong v. Whybark, 204 Mo. 347. The failure of a grantee to perform his promise, in consideration of a transfer of land, to support the grantor, may be presented as a ground for relief on behalf of the grantor as evidencing fraud in the transaction. Courts of equity have a marked tendency, owing to the usual hardships of these cases, to afford the grantor relief, particularly where he is of advanced years and without other means, and frequently proceed upon apparently all of these grounds (fraud, failure of consideration, etc.) without definitely relying upon any one of them. Further, it has been held that, if the rescission of the contract cannot be referred to any other head of equity jurisprudence, it will be proper to presume that it was made in the first instance with fraudulent intent. 18 C.J. 169. In this case the appellants obtained the deed and very soon thereafter, in fact within two weeks or less time, refused to keep respondent and informed him that they were ready to take him home.
This is a suit to cancel a deed to land in Pulaski County, claimed to be owned by the plaintiff. Upon a trial before the court a judgment was rendered, setting aside the deed, from which the defendants have appealed.
The plaintiff, a bachelor, seventy-seven years of age, had lived practically all of his life on the farm, the deed to eighty acres of which it is sought to cancel. The defendants are husband and wife, the latter being a niece of the plaintiff. In February, 1927, the plaintiff became ill and was removed to the home of the defendants for care and treatment. The plaintiff contends that during his illness and while confined to his bed the defendants brought a notary and a prepared deed from him to them, conveying the land therein described in consideration of their agreement and promise to care for and support him during the remainder of his life and to defray his funeral expenses upon his death; that relying upon these promises he made the deed; that this deed was made to the defendants as husband and wife; and upon its execution was, during his illness, filed and recorded in the Recorder's office of Pulaski County. That a short time thereafter, upon the plaintiff's partial recovery from his illness, the defendants notified him that they could not and would not care for him after the succeeding Sunday, but that they would take him to his home. The plaintiff thereupon demanded that the defendants return to him his deed, which they did, and that they execute a deed reconveying the land to him, which they refused to do. That plaintiff returned to his home and further communication between the parties ceased and the plaintiff brought this action to cancel the deed.
The defendants contend that the consideration for the making of the deed was not their promise to care for the plaintiff during the remainder of his life and pay his funeral expenses, but for twenty years' service rendered to him by Mrs. Margaret Williams, his niece, one of the defendants, not only in the care and keeping of his home, but in ministering to his personal care and comfort, for all of which services he promised to pay her, but had not done so; that when he partially recovered from his illness he demanded that he be taken to his own home and that the deed he had made to the defendants be returned to him, both of which demands were complied with; but that the plaintiff refused to pay them for their services to him during the years stated and that they declined to reconvey the land to him, whereupon this action was instituted.
I. The defendants challenge the sufficiency of the petition, although no question of this character was raised in the court below. If there is such lack of material allegations upon the face of the petition as to fail to state an issue, an interposition of an objection thereto in the first Pleading. instance in this court will be timely. Otherwise not. The gravamen of the issue is a failure of consideration and fraud. The petition alleges these matters in this wise: that the deed was made by the plaintiff in consideration of the defendants' promising and agreeing to care for and support him during the remainder of his life and to pay his funeral and other necessary expenses incident thereto upon his death; that this was the sole consideration for the making of the deed; that immediately after its having been made and delivered to the defendants and by them placed on record they notified the plaintiff that they would no longer keep and care for him and that they would return him to his own home; that in thus failing and refusing to comply with their contract they have injured and defrauded the plaintiff and that he has no remedy at law other than by this proceeding.
The literal averment of fraud in a pleading is not an essential to its validity if facts are affirmatively stated "which show that it is a conclusion of law." Viewed from this vantage the petition is not subject to obnoxious criticism. [State ex rel. Life Ins. Co. v. Allen, 310 Mo. 378, 276 S.W. 877.] This court has, under the code, been exceedingly liberal in the construction of pleadings, after verdict, "if by reasonable intendment, or by fair implication from the facts stated, . . . the essential allegations may be got at by inference." [Timmermann v. St. Louis Architectural Iron Co., 318 Mo. 421, 429, 1 S.W.2d 791; Ice Storage Co. v. Kuhlmann, 238 Mo. l.c. 702, 142 S.W. 253, 258.]
Where a petition, as at bar, is not attacked by demurrer after verdict it is to be liberally construed and held sufficient even if it states a cause of action defectively. This is a general rule and its application is uniform where the facts warrant. In addition, although we regard the allegations in themselves as sufficient, if the material matter had not been expressly averred in the petition but could be necessarily implied from what was stated in the context, the defect will be regarded as cured after verdict. [Grobe v. Energy etc. Co., 217 Mo. App. 342, 275 S.W. 67; Hatton v. Henman, 10 S.W.2d 967; Buswell v. Turner, 11 S.W.2d 1088; Cabool School Dist. v. U.S. Fidelity etc. Co., 9 S.W.2d 103.] We have even gone so far in a recent case as to hold that an issue, raised upon a statement of a legal conclusion which presents the real point in controversy, will be regarded as sufficient after verdict. [Rudd v. Rudd, 13 S.W.2d 1082.]
In passing, it will suffice to say that the cases cited by the defendants as counter to the rules of construction above announced are those where fraud was not alleged as it was in the instant case. A total failure of consideration having been pleaded and an allegation of fraud, whether the latter conformed to the strict rules of pleading or not, is immaterial in this case, as its defects were cured by the verdict and judgment inasmuch as the allegation was not attacked by demurrer or motion to strike. We hold, therefore, that the petition was sufficient.
II. The contention is made that the deed contains no condition subsequent and that a petition to set aside does not allege any facts which would warrant a court of equity in canceling it, even though the defendants failed to comply with the Condition agreement set forth in the deed. The cases cited by Subsequent. the defendants in support of the foregoing contention do not in any manner allege fraud or undue influence. They are, therefore, distinguishable from that class of cases of which the Putnam Co. Supp. Corp. v. Mendota Mining Co. et al., 285 S.W. 409, is a type, in which this court set aside and canceled a deed in which the plaintiff alleged and proved, as in the instant case, that there was a failure of consideration and that fraud existed. The cases cited by the defendants are inapplicable to sustain their contention in that they depend entirely upon the allegation of a failure of consideration.
Confined as is the defendants' second contention to an attack upon the sufficiency of the petition it is not necessary to consider that phase of it in which it is insisted that the allegation of fraud should have been supported by proof.
Under the facts in this case the manner in which the interests of the plaintiff might have been safeguarded as contended by the defendants is wholly inapplicable.
III. The third and fourth contentions of the defendants that when a deed is based on a consideration of care and support to be rendered by the grantee, it is error to set aside and cancel such deed where there has been a partial performance for Inconsistent the reason that in their answer they denied that Defenses. the deed was given in consideration of a promise by them that they would care for the plaintiff as long as he lived and then set up an affirmative defense to the effect that the deed was given in consideration of past care and labor done on the part of the defendants for the plaintiff. That part of defendants' answer under which partial performance might have been shown was in these words: "although they would have and now will willingly render any helpful service to the plaintiff as they have done in the past at his request for the consideration that he frequently promised and which he paid for by the execution and delivery of said deed," was properly stricken out by the trial court on account of this allegation: "and defendants deny that they promised future services, care and attention for and to the plaintiff in consideration of said deed;" the reason for the court's action being that such a defense was inconsistent with the defense theretofore asserted by them that the deed was given for services already rendered and that proof of the one would disprove the other.
While Section 1233, Revised Statutes 1919, provides that a "defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be . . . denominated legal or equitable, or both. They must each be separately stated, in such manner that they may be intelligibly distinguished, and refer to the cause of action which they are intended to answer." Despite this statute it is a rule of universal application that where distinct and separate defenses are included in the same answer they must be consistent with each other. [Smith v. Culligan, 74 Mo. 387; Lee v. Dodd, 20 Mo. App. 271; Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267; Fugate v. Pierce, 49 Mo. 441; Ledbetter v. Ledbetter, 88 Mo. 60; Vaughn v. Conran, 20 S.W.2d 968.] The test is whether or not the proof of one defense necessarily disproves the other. [Vaughn v. Conran, supra; Nelson v. Brodhack, 44 Mo. 599; 100 Am. Dec. 328; Keane v. Kyne, 2 Mo. App. 317; Schaefer v. Causey, 8 Mo. App. 142; Wood v. Hilbish, 23 Mo. App. 389; Atterbury v. Hendricks, 127 Mo. App. 47, 106 S.W. 111.]
Therefore, when the defendants, by their answer affirmatively set forth that the consideration for the deed was the obligations due them from the plaintiff and that they never promised to care for him the remainder of his life and the further allegation: "Although they would have and now will willingly render any helpful service to the plaintiff as they have done in the past at his request for the consideration that he frequently promised and which he paid by the execution and delivery of said deed," this defense was properly stricken out for the reason we have stated, viz; that is was inconsistent and that the proof of one averment would disprove the other.
IV. The cases cited by the defendants in support of the doctrine enunciated under their Point IV contain an important limitation or restriction overlooked by them. The doctrine laid down in these cases is as follows: "It has Part Performance. been very generally asserted and applied that after a partial performance by the grantee, the grantor may not abandon the same or prevent further performance upon the part of the grantee, and take advantage of such failure to secure equitable aid to cancel or rescind his deed." Thus it will readily be seen that the cases cited by defendants are cases wherein the grantor abandoned or prevented the contract from being performed on the part of the grantee and do not apply to the situation here presented where the grantees are in default and deny that they ever made a contract or agreement to care for the plaintiff for the remainder of his life. Moreover, the element of fraud enters into this case, and this alone is enough to distinguish it from those cited by the defendants.
V. The court below was correct in its ruling as to the merits of this case. The consideration of a deed is open to investigation. The clause acknowledging the payment of the purchase money is somewhat in the nature of a Grounds for receipt and is subject to parol explanation. Cancellation. [Chambers v. Chambers, 227 Mo. l.c. 287.]
The consideration stated in this deed is "the sum of one dollar and other good and valuable consideration." The words, one cent, one dime and one dollar, are the technical words used to express nominal consideration. [Strong v. Whybark, 204 Mo. l.c. 347.] The fact that the sum of one dollar is stated as a consideration is modified by the next clause, "and other good and valuable consideration," and such clause is open to investigation and explanation. In fact, the recitation of the sum of one dollar in the deed might be treated as mere surplusage in view of the clause following it.
The failure of a grantee to perform his promise, in consideration of a transfer of land, to support the grantor, may be presented as a ground for relief on behalf of the grantor as evidencing fraud in the transaction. Courts of equity have a marked tendency, owing to the usual hardships of such cases, to afford the grantor relief, particularly where he is of advanced years and without other means, and frequently proceed upon apparently all of these grounds (fraud, failure of consideration, etc.) without definitely relying upon any one of them. Further, it has been held that, if the rescission of the contract cannot be referred to any other head of equity jurisprudence, it will be proper to presume that it was made in the first instance with fraudulent intent. [18 C.J. 169.] In this case the defendants obtained the deed and soon thereafter, in fact within two weeks or a less time, refused to keep plaintiff and informed him that they were ready to take him home.
The chancellor who tried the case heard the evidence of the respective witnesses and decided the issues in favor of the plaintiff. The plaintiff testified that the deed was made in consideration of promising to take care of him, bury him and pay all expenses; that this was the "other good and valuable consideration" expressed in the deed. Defendants admit in their answer that the one dollar recited as consideration was not the consideration for which the deed was made, but that the deed was delivered to them for a valuable consideration, and then set out the services they had performed for him and for which they alleged they had received no consideration, and that the deed was made for the purpose of adjusting already existing obligations to them. The testimony of the defendants is to the same effect. Therefore there was testimony to the effect that the deed was given for the consideration of defendants caring for the plaintiff, burying him and paying all funeral expenses; and that the deed was given in consideration of the adjustment of the plaintiff's obligations to defendants for services already rendered. Hence, we are presented with a situation where the evidence supporting the defendants' contention, if believed, sustains their position; whereas, on the other hand, the evidence is clear that the deed was given in consideration of defendants taking care of the plaintiff as long as he lived. Therefore, with the evidence in conflict the credibility of the witnesses becomes the determining factor as to this point. The suit was tried as one in equity before the court nisi. While the whole record must come here for review in equity cases so that we may weigh and decide the same de novo, nevertheless, where an issue of fact rests upon the credibility of witnesses, this court will defer to the finding of the chancellor, who has many opportunities, necessarily denied to the appellate court of seeing and hearing the witnesses themselves, observing their demeanor while testifying, and of determining the weight which properly attaches to their testimony. [Keener v. Williams, 271 S.W. l.c. 496; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Major v. Putney, 293 S.W. l.c. 82 and cases cited therein.]
No error having been committed authorizing a reversal the judgment of the trial court should be affirmed. Blair, P.J., concurs; White, J., concurs in result.