Opinion
No. 41503.
July 10, 1950.
APPEAL FROM THE CIRCUIT COURT OF LIVINGSTON COUNTY, JAMES W. DAVIS, J.
J. V. Gaddy, St. Joseph, Dean H. Leopard, Gallatin, attorneys for appellant.
R. Leroy Miller, Trenton, Robert C. Frith, Chillicothe, attorneys for respondents.
Plaintiff filed this suit to set aside and declare null and void a certain deed alleged to have been executed by her under duress of her husband. The trial court entered a decree for the defendants and plaintiff appealed.
The original petition included plaintiff's husband as a defendant. He died before a trial was had and an amended petition was filed naming the husband's heirs as defendants. The heirs were William McVeigh, Charles Polk, Mrs. Ralph Dannin, Minnie Gardner, Flossie Gardner, Mrs. George Sauslin, and Nelle Myhre, nephews and nieces of plaintiff's husband, James B. McCandlish, deceased. M. M. Chrisman was named as a defendant because he was the administrator of the husband's estate. Elizabeth Linker being the grantee in the deed in question was named as defendant. (In the body of the petition Mrs. Ralph Daum is referred to as Mrs. Ralph Dannin and William McViegh as William McVeigh.)
The record discloses the following: Plaintiff married James B. McCandlish in 1945. McCandlish was then about 70 years old. Plaintiff was much younger than he. They lived together in a home to which the title was in their joint names. On October 24, 1946, serious difficulties seem to have arisen between them. McCandlish filed a petition in the probate court seeking to have plaintiff declared of unsound mind. A warrant was issued and plaintiff was placed in jail at about 11:00 a. m. of that day. She remained in jail until the afternoon of October 25 at which time she was taken to the office of an attorney, R. Leroy Miller, of Trenton, Missouri. Miller had been out of the city on the 24th of October. When he returned to Trenton, plaintiff's husband consulted and employed Miller to represent him. On the morning of October 25, Miller and plaintiff's husband drove to St. Joseph, Missouri, where a safe deposit box was kept in a bank in plaintiff's name. Plaintiff and her husband each had a key and authority to open the box. This box was opened and, according to Miller's evidence, bonds of the value of $1,500 were taken therefrom. The evidence showed that these bonds were the property of plaintiff's husband. Miller and McCandlish returned to Trenton arriving there at about three o'clock in the afternoon. Miller testified that when he arrived at his office, he was informed that plaintiff desired to see him. Miller went to the jail where plaintiff was being held and he testified that plaintiff wanted to retain him as her lawyer. He informed her he had been employed by her husband. Finally, so Miller testified, plaintiff mentioned Herbert S. Brown, a Trenton lawyer, with whom she was acquainted and suggested he be retained as her counsel. Thereafter plaintiff still in the custody of the deputy sheriff was taken to Miller's office. Brown had been notified and was present and the parties began negotiations for a settlement. Plaintiff's husband was also present, and Brown, Miller, and several other witnesses testified that McCandlish had a black eye and numerous scratches on his face. The attorneys both testified that the first matter suggested was the insanity proceeding. Miller testified he had previously advised his client that the proceeding should not have been instituted and was ill-advised. Brown testified that he stated the first thing to do was to dismiss these proceedings. Miller agreed and the two lawyers went to the probate court and procured an order of dismissal. The attorneys then returned to Miller's office and informed the deputy sheriff that plaintiff was no longer in custody and thereupon the deputy sheriff left. This deputy was a witness and corroborated the evidence of the attorneys. Brown testified that he and the plaintiff retired to a rear room of Miller's office where a long consultation was had concerning plaintiff's claims; he learned that plaintiff wanted a divorce and a property settlement. After thus conferring with plaintiff and later negotiating with Miller for the best terms obtainable, Brown agreed to the property settlement made. This provided that plaintiff should be paid $750. It was also stipulated that a divorce action be instituted and that plaintiff sign a paper entering her voluntary appearance to a divorce petition to be filed by her husband. Plaintiff accepted the $750 and on the same day signed the deed here in question conveying the home to defendant Linker who in turn conveyed the property to plaintiff's husband. Later that day after plaintiff had gathered her personal belongings, Mr. Brown and Mr. Miller took her by automobile to St. Joseph where she had formerly lived and where she desired to go. Subsequently she filed the present suit. Brown, the attorney who allegedly represented her in the settlement, did not participate as a lawyer in this case.
Plaintiff testified that she signed the deed only after she was told that she would not be released from jail unless she did sign; that Brown did not represent her in the alleged settlement and that she did not pay for his alleged services. It may be stated here that plaintiff's husband paid the sum of $250 to Brown for representing plaintiff in the settlement and in the divorce action. That seems to have been a part of the settlement made. Plaintiff further testified that she signed the papers and the deed before she was released from custody and before the insanity proceeding was dismissed. She stated that when she arrived at Miller's office, the papers had been prepared and that Brown was there and advised her to sign.
If plaintiff signed the deed in question under duress, then, of course, it should be set aside. 26 C.J.S., Deeds, § 61b, p. 286; Malloy v. Jones, 351 Mo. 1211, 175 S.W.2d 776. In that case this court, 175 S.W.2d loc. cit. 779(2, 3), said: "Under the modern doctrine there is no exact legal standard respecting the sufficiency of facts to produce duress. The question must be determined on the facts of each particular case on consideration of all surrounding circumstances, such as age, mental capacity, relation of the parties, etc. The final test is: Was one party to the transaction prevented from exercising his free will by the threats or wrongful conduct of the other and the contract obtained by reason of such facts? 17 C.J.S., Contracts, p. 533, § 175."
A court of equity would not be justified in setting aside the deed in question on the evidence in the present case. The trial court found against plaintiff. The record supports the judgment. Plaintiff alone testified that the deed was signed before the insanity proceeding was dismissed. We must conclude from the record, despite plaintiff's evidence to the contrary, that Brown did, in fact represent plaintiff at her request and protected her rights.
All witnesses who were present at Miller's office testified contrary to plaintiff concerning what occurred. If these witnesses are to be believed, plaintiff was in a very belligerent mood. They testified that she employed very abusive and vulgar language toward her husband. She seemed not to have been in a submissive state of mind. Dr. E. A. Duffey testified that on October 24 he was consulted by Mr. McCandlish who had "a black eye", "abrasion marks" on his face and "large cuts" in his clothing. Brown testified that plaintiff was satisfied at the time the settlement was made. It certainly would have been a gross breach of professional ethics for Brown to have been a party to defraud plaintiff when he was supposed to represent her interests. The record does not justify any such conclusion. Plaintiff in her brief says that the consideration of $750 paid her for signing the deed was grossly inadequate and a badge of fraud. One witness testified that the value of the home was about $4,000. Plaintiff says her share therefore should have been $2,000 and that in case of her husband's death she would have been entitled to all of it as the survivor in an estate by the entirety. Whether plaintiff would ever enjoy any portion of this property in her own right was at the time speculative. The outcome of a hotly contested divorce case is uncertain. If both parties were at fault a divorce would be denied. The time of death is also uncertain. So, as we view the situation, the $750 net to plaintiff, leaving all expenses and attorneys' fees to be paid by her husband, is not so inadequate as to be fraudulent.
We have reached the conclusion that the trial court was justified in denying plaintiff the relief sought.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.