Rinkel v. Lubke

• Decision Date: 10 December 1912
• Citation: 246 Mo. 377,152 S.W. 81
• Parties: RINKEL v. LUBKE et al.
• Court: Missouri Supreme Court

152 S.W. 81

246 Mo. 377

RINKEL v. LUBKE et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

1. DEEDS (§ 211)—MENTAL CAPACITY—EVIDENCE—SUFFICIENCY.

In a suit to set aside a deed for incapacity of the grantor, the record of a judgment finding that a will made by the grantor two years after the deed was invalid for lack of testamentary capacity would not warrant a finding that the grantor was incapable at the time of the execution of the deed.

2. MORTGAGES (§ 38) — ABSOLUTE DEED AS MORTGAGE—EVIDENCE.

Where a deed is absolute on its face, evidence to prove that it was intended as a mortgage must be clear and convincing and exclude every reasonable doubt.

3. MORTGAGES (§ 38) — ABSOLUTE DEED AS MORTGAGES—EVIDENCE—SUFFICIENCY.

In an action to recover the proceeds of real estate under the theory that a deed, absolute

on its face, was intended as a mortgage, evidence held insufficient to establish that fact.

4. APPEAL AND ERROR (§ 847) — REVIEW — CHANCERY CASES — EXCLUSION OF TESTIMONY.

On appeal in chancery cases the judgment will not ordinarily be reversed because of error in ruling on evidence; but the appellate court will determine the questions on the competent evidence offered, without regard to the trial court's rulings.

5. EVIDENCE (§ 313)—WEIGHT AND SUFFICIENCY—ADMISSIONS.

Testimony of admissions against interest, made by a deceased owner many years before an action to declare a deed absolute on its face to be a mortgage, should be received and acted upon with caution.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by George W. Rinkel against George W. Lubke and others, as executors of Frederick W. Henze, deceased, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

L. F. Ottofy and W. B. & Ford Thompson, all of St. Louis, for appellant. Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for respondents.

BLAIR, C.

As the residuary legatee of Frederick W. Hamburger, Jr., who in turn was the sole heir of Frederick W. Hamburger, Sr., appellant instituted this suit in the circuit court of the city of St. Louis to recover the proceeds of certain realty in St. Louis county conveyed by Hamburger, Sr., to Frederick W. Henze by a deed absolute on its face, but alleged to have been in fact a mortgage. Three of the respondents are the executors and the others the devisees of Henze. The deed to Henze recited a consideration of $5,000 ($4,000 cash and a balance of $1,000 due on two deeds of trust), and the property it conveyed consisted of 60 small lots, each about 25 by 120 feet; the tract being known as the Oak Hill property, situated on what is called the St. Charles rock road, in St. Louis county. The judgment below was for defendants.

The deed assailed was dated August 11, 1890, and the petition alleges that, while it is absolute on its face, it was executed by Hamburger solely for the purpose of vesting in Henze the legal title to the Oak Hill property to secure the payment of certain indebtedness of Hamburger, Sr., to Henze, and was for a time recognized and acknowledged by Henze to be simply a mortgage. It is further alleged that at the time the deed was executed Hamburger, Sr., was mentally incapable of transacting business, and that Henze induced him to execute the deed by falsely and fraudulently representing to him that there were then on the property two deeds of trust securing $1,000, and that the deed executed was intended to secure that indebtedness. It is further alleged that there were, in fact, no deeds of trust outstanding against the property. Other allegations are that Henze did not assert title in himself until after the death of both the Hamburgers, father and son, and then did so by having the deed to him recorded a second time January 21, 1897, that plaintiff had no knowledge of the facts set forth until after Henze's death in 1905, that some of the lots were sold by Henze in his life-time, and the others by those defendants who are legatees of Henze, and prays an accounting and judgment against the executors for the amount realized by Henze from the lots he sold, less amounts found due him, and against Henze's legatees for the sums realized by them.

Separate answers were filed, one by the executors and one by the devisees under Henze's will. Each admitted Henze's death, the probate of his will, and the issuance of letters testamentary, and denied all other allegations, and, in addition, contained pleas of the five and ten year statutes of limitation.

The evidence showed that for some years prior to 1890 Frederick W. Hamburger, Sr., had owned the Oak Hill property and another tract, known as the Darby Hill property, making his home on the latter. In 1888 he platted the first-named parcel. Hamburger, Sr., and Henze were brothers-in-law, and as early as 1878 Henze had loaned Hamburger money, taking a deed of trust on the Oak Hill property. August 11, 1890, Hamburger, Sr., and wife executed the deed now assailed. It was absolute on its face. Frederick W. Hamburger, Jr., also signed this deed as a witness to his father's signature. November 29, 1892, Hamburger, Sr., died, leaving a will, which was subsequently set aside, and the executor thereof filed an inventory of the estate, which included none of the Oak Hill property, except one lot. Subsequently the will was set aside, and Hamburger, Jr., sole heir of Hamburger, Sr., was appointed administrator d. b. n., and adopted the inventory filed by the quondam executor. In the meantime Henze had been selling lots in the Oak Hill tract; at least one such sale having been made prior to Hamburger, Sr's., death. The evidence is conflicting on the question whether Henze or Hamburger, Sr., exercised dominion over the Oak Hill property in 1891 and 1892, but there is practically no dispute as to Henze's possession after 1893, and it is admitted he paid the taxes falling due after the date of the deed to him.

April 30, 1896, Frederick W. Hamburger Jr., died, leaving a will whereby he devised to appellant all his property, except legacies of insignificant amount to certain relatives; one of these legatees being Henze's wife. January 21, 1897, the deed of August 11, 1890, was recorded anew; the first record of it not conforming to the deed with respect to the description of one of the lots. Appraisement and inventory of the estate of Hamburger, Jr., were filed May 7, 1896, and included only the Darby Hill property, disclosing that it was subject to three deeds of trust aggregating $4,750; the last two being for $1,000 and $750, respectively, and being made to secure loans from appellant to Hamburger, Jr. April 10, 1897, this property was sold under the first deed of trust ($3,000), and was bought in, and subsequently sold, by appellant's sister. A short time thereafter the heirs of Hamburger, Jr., including Henze's wife, instituted proceedings to have his will declared invalid. Henze was joined with his wife as a party. Judgment went against the contestants. March 21, 1905, Henze died, leaving the will referred to above. Before his death he had sold most of the lots, but, except as to a few, it does not appear when, to whom, or for what prices these sales were made. The remaining lots were devised to certain of the respondents herein, and they had sold these lots prior to the commencement of this suit, March 21, 1907. In 1890 the Oak Hill property had been platted, but the streets had not been made, and the witnesses referred to it as "acre property." It consisted of about seven acres, and the testimony as to its value in 1890 ranged from $350 an acre to $5 a front foot.

To show Hamburger, Sr's., incapacity to execute the deed of August 11, 1890, appellant offered the petition, instructions, verdict, and judgment in the contest proceedings in which Hamburger, Sr's., will was set aside; but the court excluded this.

The evidence relied on to show that the deed mentioned was really a mortgage consisted mainly of statements of Henze.

Mrs. Gaines, sister-in-law of Henze, said that before the suit to set aside Hamburger, Jr's., will was instituted Henze said to one of the attorneys that he had no interest in the matter, and wanted his wife's share to go to witness, and said to her that if the will of Frederick W. Hamburger, Jr., was not set aside Rinkel "would get it all." Whether this occurred prior to the sale of the Darby Hill property under the deed of trust does not appear.

James M. Grenolds testified that within a year before the senior Hamburger died he heard Henze tell Hamburger, Jr., that he (Henze) held a mortgage on the Salzman avenue place, and if the son behaved himself the property would be all his. Witness lived in one of Henze's places from 1888 to 1893, and then moved away.

Mrs. Bernardine Hamburger, whose husband is a nephew of Frederick W. Hamburger, Sr., testified that after the death of Frederick W. Hamburger, Jr., Henze said to her that in case he and Mrs. Henze died there "was plenty for both sides," and that he would "look out that Rinkel and Thompson won't get hold of this." She said he was talking of the land the railroad company bought.

Appellant testified the first information he had that the deed of August 11, 1890, was in fact a mortgage was received from the witness Mrs. Gaines just before this suit was begun; that at the time suit was begun to set aside the will of Frederick W. Hamburger, Jr., all real estate inherited by the latter from his father had been sold under deed of trust, and there was, apparently, no property belonging to the estate; that he found an unreleased deed of trust to Henze against the Darby Hill property; that the note secured had previously been paid, and Henze, when applied to in 1903, executed, without objection, a deed of release to Mollie H. Rinkel and William B. Thompson, who seem then to have owned the Darby Hill tract.

Appellant also offered in evidence certain memoranda, offering in that connection testimony...