Opinion
No. 41704.
July 10, 1950. Motion for Rehearing or to Transfer to Court en Banc Overruled September 11, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, BEN TERTE, J.
Sam Mandell, Kansas City, for appellants, Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel.
Edmund B. Smith, Kansas City, for respondent, Meyer Smith Wetzel, Kansas City, of counsel.
Action in equity to cancel deeds to parcels of real estate — lots in Kansas City and in Lake Lotawana subdivision of land in Jackson County, and to 320 acres in Colorado — or, in the alternative, to compel defendants to reconvey the described properties to plaintiff. The trial court found the issues for plaintiff, and rendered a judgment canceling the conveyance of the Missouri properties, and ordering defendants to reconvey the Colorado property to plaintiff. Defendants have appealed.
Frank O. Wagner, 71 years old when the conveyances were made, May 15, 1944, is plaintiff. His son-in-law and daughter, Ludwig and Erna Hicken, are defendants.
Plaintiff alleged defendants fraudulently schemed to obtain title to the described properties; "plaintiff was willing and desirous to convey said properties to these defendants, retaining for himself a life estate therein, provided that these defendants would thereafter support him and care for him as a member of their family"; defendants with the intent to defraud plaintiff promised him they would thereafter support and care for and treat him as a member of the family; relying on the promise, plaintiff executed warranty deeds conveying the properties to defendants, subject to a life estate reserved in himself; after they obtained the deeds, defendants failed and refused to carry out the promise; no consideration was paid for the conveyances other than defendants' promise; and the deeds were obtained and the title to the properties retained in fraud of the rights of plaintiff.
Defendants alleged the properties were conveyed to them for services rendered plaintiff pursuant to an agreement; and defendants have treated plaintiff as a member of the family, and are ready, willing and able to take care of him; but plaintiff voluntarily left defendants' home and has remained away against their desire. Defendants further alleged plaintiff, having reserved a life estate, is now enjoying the income yielded by the properties; defendant Erna, daughter of plaintiff, is the natural object of his love and affection; in consideration of the relationship and the many services she had theretofore rendered, plaintiff had promised that Erna should inherit all of his property; and the conveyances were made to defendants willingly and in keeping with his agreement and undertaking with defendants.
Defendants-appellants contend plaintiff failed to prove the conveyances were referable to any contract by which defendants had agreed to "support" plaintiff. They contend the evidence shows the conveyances were in execution of an agreement by which they were to have plaintiff's property for defendants' services previously rendered. And defendants-appellants say plaintiff's evidence failed to demonstrate any fraud entitling him to relief. Plaintiff-respondent contends he has shown by a clear preponderance of evidence and beyond reasonable doubt that defendants, in consideration for the conveyances, agreed to support and care for plaintiff as a member of the family, and that defendants, having procured the conveyances, have failed to carry out their promise. His evidence, plaintiff says, constituted proof of legal fraud justifying the trial court's judgment.
It is necessary for us to examine the whole of the evidence introduced.
Plaintiff was a machinist until he was retired in 1942. We infer plaintiff was born in Germany. He was another child, a son in Germany, who has not been in America since 1923. (In her testimony, defendant Erna also mentioned a sister.) Plaintiff first lived with defendants in 1922, and he "came to them again" in 1929. He had paid defendants $10 (sometimes $12) per week, which, it seems, was considered by the parties to be his share of the household expense.
Plaintiff testified that, before he executed the conveyances, conditions in the Hicken home and the "feeling" between plaintiff and defendants and defendants' children "was pretty fair * * * sometimes we had a little trouble." They had no trouble concerning the newspapers, the German magazines, the radio, nor had there been any more than some trivial difficulties among them. Plaintiff had made a will devising his properties to defendant Erna; he wanted her to have the property "at that time, but not now."
Plaintiff testified that his daughter, Erna, came to him and told him, "if I deeded half that property over to her, she wouldn't have to pay * * * so much inheritance tax. * * *" We infer this was in the spring of 1944. Plaintiff told Erna to go to the office of his attorney "and see what can be done." Later, plaintiff and Erna went to the office of the attorney; there Erna "promised to take care of me as long as I live. * * * If I signed that over." Plaintiff executed the deeds, reserving a life estate.
After plaintiff had made the conveyances in 1944, defendants "made life miserable for me." In the evening, if plaintiff wished to read the newspaper, "the kids came first and then the Missus and then Mr. Hicken. If I asked for it, they say, `I am paying for that paper.'" Concerning the German magazines, "she (defendant Erna) put it back in her room and maybe went out. If I asked her for it, `I am paying for it. I read it first.' That took about ten days * * * and then sometimes she gave it to me and sometimes she hid it * * * so I had to hunt it up." Defendants' children turned plaintiff's radio on so "loud you could hear it a block away," and showed extreme annoyance if plaintiff toned it down. Defendants' children "laughed at" him. Defendant Ludwig, a bricklayer, told plaintiff, "You are no machinist, you are a common laborer." On other occasions, Ludwig "was about six feet off, he looked at me and says, `You didn't wash your ears' and some little things. * * * If the dog came to me and I petted him, they called him away, see. * * * I can't remember everything, but I know I felt like just I was wished on them and they tried to get rid of me or that they said I wasn't right in my head, and then they would push me off somewhere or tell me to jump in the lake." After his execution of the deeds to defendants, plaintiff had continued to contribute money, $10 (or $12) per week, to defendants. There was plenty of good food, and his room and bed linen were kept clean, and "they paid for the laundry."
The attorney, who prepared the conveyances, testified defendant Erna came to his office in early May, 1944, and said, "Mr. Downey, grandpa is getting old and he had an automobile accident and he's going to be quite a care. Now, he can't work. We've got to take care of him, and I think he should transfer his property over to us. There would be no inheritance tax or anything like that, if he did." Later, May 15th, "Mr. Wagner and she came in * * * and she said, `Now, we are willing to agree with Grandpa that we'll take care of him for the rest of his life, if he will give us a deed to this property * * *.' They would be glad to take care of him the best they could for the rest of his life. The old man was badly crippled up at the time. Mr. Wagner said, `Well, I have already made my will leaving you everything that I have.' And she said, `Yes, I know, but you could change your will.' And he said, `Yes, I could change my will.' * * * and among the suggestions was that he would have the life estate in the property * * *. And so, she had reiterated over and over in the conversation that she was going to take good care of him for the rest of his life, and so at the conclusion we went and got deeds * * *."
Defendant, Erna Hicken, testified that she and her father had "talked it over real nicely and I explained to Dad why it would be a good thing for him to deed the property over to my name so in case something should happen to him, I would have no trouble with the relatives over in the old country and that was the only reason why I asked Dad to do it." Defendant Erna had collected rentals due her father for nine or ten years, and her husband had repaired and reconditioned some of the buildings. They had received no pay for these services. After the conveyances were made, she treated her father "the same way like before, but Dad changed a great deal. He was always mad about something." There was "a little trouble" about the newspapers, but never any argument about the German magazines. At the attorney's office there had been "nothing promised." Mr. Downey said, "`Now, Mr. Wagner, you understand what you are doing and you are doing this under your free will?' and Dad said, `Yes, I do. I want it fixed that way and that's the way my daughter likes to have it fixed.' Then Mr. Downey said, `Now, Mrs. Hicken, your Dad has signed the paper, you understand that you have to be good to your Dad and take care of your Dad.' I said, `Certainly we will. He always has a home with us and we certainly wouldn't be cruel to my Dad.'"
Defendant, Ludwig Hicken, testified that, "all along" he had reconditioned and repaired plaintiff's properties. Plaintiff paid defendant Ludwig for the "outside help" in these labors, but plaintiff did not pay defendant Ludwig for his work. Plaintiff said, "`What are you hollering about, it will be yours later anyhow.'" Ludwig testified his labors were reasonably worth $4,000. Checks, of various dates in 1930-1932, were introduced showing payments by plaintiff to defendant Ludwig in total amount of $1,240. Ludwig said he and his wife and children had always treated plaintiff "like a member of the family." Plaintiff left the Hicken home March 1, 1946, "on his own account."
In this action in equity it is our duty to review the evidence, determine its weight and sufficiency, and make our own finding with due deference to the conclusions of the trial chancellor. The cancellation of a deed is the exercise of the most extraordinary power of a court of equity, which power ought not to be exercised except in a clear case. Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69.
Defendants-appellants argue there was no evidence they had undertaken to support plaintiff; they urge plaintiff's own conduct in voluntarily contributing the same weekly amount to defendants as he had before the property was conveyed is most persuasive evidence that no agreement had been made for the support of plaintiff by defendants. The testimony of defendant Erna relating to the "only reason" she had asked her father "to deed the property over," as well as the testimony of the attorney, refutes defendants' contention the conveyances were referable to and in execution of any prior agreement of plaintiff to convey or devise his property to defendants in consideration of their former services.
Plaintiff was self-supporting in a way. The income from his properties was perhaps sufficient to meet his physical needs. Defendants did not refuse to support plaintiff; and, moreover, plaintiff contributed to the family expenses as before. He was apparently desirous of paying a part of the household expense. But, we believe, the evidence clearly shows defendants promised plaintiff that, in consideration for the conveyances, they would more than merely "support" plaintiff, that is, more than "support" in the sense of merely providing him with physical necessaries.
Having read the record carefully, we are of the view that the parties intended and defendants undertook to provide plaintiff with the comforts of their home, at least quite as he had enjoyed before he executed the instruments. In the circumstances, the promise "to take care of him" must have been intended to include not only physical comforts, but also the courtesies and kindly consideration one would expect to give an aging father in the performance of an express agreement "to take care of him." In our case, "take care of him" surely means more than good bread and a clean bed. The words "take care of him" cannot be said to be of precisely measured and unvarying meaning in all cases. The meaning intended was such as the parties must have considered applicable to themselves in the circumstances. Bull v. McCrea, 8 B.Mon. 422, 47 Ky. 422. See also Cabeen v. Gordon, 1 Hill Eq., S.C., 51; Vol. 41 Words and Phrases, Perm.Ed., Take Care Of, pp. 17-18.
Defendants-appellants urge plaintiff's complaint of the treatment by them was evidence of the "vagaries and ramblings of advancing senility * * * childish whimsey and imaginings." Surely, plaintiff's belief of mistreatment could be due to some change of personality because of which plaintiff has become to sensitive and petulant that he might be unhappy in any environment; but it seems plaintiff was satisfied in defendants' home before he made the deeds, and he was very unhappy after the deeds were made. He said defendants made life miserable for him. Even if the circumstances of asserted mistreatment as stated by plaintiff might, to some, seem trivial, yet we can certainly say the circumstances did not seem trivial to plaintiff. And, giving full credence to plaintiff's testimony, we can certainly say the stated circumstances were not trivial. To be needlessly put off for ten days in one's desire to read magazines published in the language of one's native land is not kindly treatment; and the expression "I am paying for it" is not ordinarily used to one who is being made welcome in a home. If defendants, after the conveyances were executed, did change their attitude toward plaintiff, their aging father, and did become cold toward him, and did disparage and belittle him, and if their conduct so manifested itself to him as to make his life unhappy causing him to feel impelled to leave defendants' home, as he did, there was, in our opinion, a failure to perform defendants' promise and circumstantially substantial bases for the clear inference defendants with no intention of performing had made the promise only to get plaintiff's property, and that plaintiff thus had a fraud practiced upon him. Compare Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103.
It is true the discourtesies plaintiff said he had experienced were disputed or explained by defendants in their testimony. The trial chancellor, however, had opportunities, necessarily denied to us, of seeing and hearing the witnesses and observing their demeanor, and of determining the weight and value of their testimony. In the instant case, the record shows the trial chancellor was anxiously attentive to plaintiff's testimony, and personally interrogated plaintiff. Apparently, the trial chancellor did not consider plaintiff was one whose complaints were ramblings — imagined or childishly whimsical — or whose personality reflected the vagaries of advancing senility.
In our opinion the trial court's judgment should be affirmed.
It is so ordered.
LOZIER and ASCHEMEYER, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All concur.