Collins v. Lindsay

Decision Date19 February 1930
Docket Number28197
Citation25 S.W.2d 84
PartiesCOLLINS v. LINDSAY et al
CourtMissouri Supreme Court

Dudley & Brandom, of Gallatin, and Mayer, Conkling & Sprague, of St Joseph, for appellants.

L. B Gillihan, of Gallatin, and William K. Amick, of St. Joseph for respondent.

DAVIS and HENWOOD, CC., concur.

OPINION

COOLEY, C.

This suit was brought by plaintiff, Stella Collins, in the circuit court of Daviess county, to obtain cancellation of a deed made by her to defendant Raymond L. Miles and one from Miles and his wife to their codefendants, Roy O. Lindsay and wife; Miles and his wife having conveyed to their said codefendants. The trial court, Hon. Arch B. Davis presiding, gave judgment for defendants. Motion for new trial was timely filed, and while said motion was pending and undisposed of, Judge Davis resigned and Hon. John L. Schmitz succeeded him as judge. Thereafter the motion for new trial was argued before Judge Schmitz and was by the court sustained. This appeal is by defendants from the order sustaining the motion for new trial.

The deed sought to be canceled was made and dated March 11, 1919, when plaintiff, Stella Collins, nee Kramer, was eighteen or nineteen years of age and single. Her father, George Kramer, had bought the land which was an improved and valuable eighty-acre tract located in Daviess county in the fall of 1917, paying for it $ 145 per acre. Part of this consideration was represented by an incumbrance of $ 5,000 against the land, secured by deed of trust thereon. Kramer bought subject to the incumbrance and had the title conveyed to himself for life with remainder in fee to plaintiff, one of his daughters, and to his son, so that plaintiff thus became the owner of a one-half interest subject to her father's life estate, both her interest and the life estate being subject to the paramount $ 5,000 deed of trust.

The Kramers then lived in Iowa, but soon thereafter moved to Missouri, residing in Gilman City, some four miles from this land, until after plaintiff left home. About two months after the family came to Missouri, plaintiff and her sister had a quarrel or difficulty with their father, the nature and cause of which is not disclosed, and left the parental roof, going first to Trenton, where they remained but a short time, thence to Kansas, and thence to Oklahoma, working as waitresses, at which occupation they were employed when the deeds sought to be canceled were made. Plaintiff was then at Cleveland, Okl., and her sister at a town about twenty-two miles away. From the time plaintiff left home until the execution of her deed she had not communicated with her family except the sister who had left home with her, nor heard from them, and the relations between her and her father were strained; she supposing that he was still angry with her.

Plaintiff had but little education, having attended school only until she reached the seventh grade, and had no business experience, having lived with the family on the farm until she left home, after which she had maintained herself working as a waitress.

On March 11, 1919, defendant Lindsay appeared at the cafe in which plaintiff was employed at Cleveland, Okl., and according to plaintiff's testimony introduced himself as Raymond Miles, an attorney from Trenton, Mo., and said that he was on his way to Oklahoma City on business and that a bank at Gilman had asked him to stop at Cleveland to see her about buying her interest in the land. She testified that up to that time she did not know that she had any interest in the land, had never seen the deed, and had never been informed she had any interest; that she had never seen the land, having been to the place but once with her father after night when the family had paid a brief visit to the people then living in the house, on which occasion all she saw of the place was one room in the house; and that she did not know the value of her interest or of the farm or what her father had paid for it, and knew nothing about the mortgage or when it or the interest thereon would become due.

The man who called upon plaintiff was in fact defendant Roy Lindsay. While plaintiff stoutly insisted in her testimony that he told her his name was Miles, he testified in his deposition that he told her his true name. Since he was Lindsay, we shall hereafter so refer to him.

The negotiations and discussion between plaintiff and Lindsay lasted several hours. Plaintiff testified that Lindsay told her she had a half interest subject to the $ 5,000 mortgage and her father's life estate, but that she had no interest until after her father's death; that the mortgage would be due February 1, following, and that her father 'was going to let the interest go past due the coming February and not pay it and let the place sell'; that if the bank for which he was acting had her interest, it could protect itself by paying the mortgage debt; that she could not do so because she had no money and could not procure it; that if the place sold under the deed of trust and brought more than the debt the balance would go to her father.

Plaintiff testified further that Lindsay offered her $ 500 for her interest, telling her that was all it was worth; that she asked him for $ 1,500, but he said no; 'that he was taking too big a chance;' that five hundred was all the bank could possibly put in it. At some time during the negotiations plaintiff telephoned her sister asking her advice, but testified that her sister could give her no information, being as ignorant of the facts as she herself, and told her to use her own judgment; that she (plaintiff) did not consult any one else because she knew no one to whom she could go for advice. Finally plaintiff agreed to sell for $ 500, and she and Lindsay went to the Fidelity State Bank, where the deed was executed; the cashier, Thatcher, who was a notary public, taking her acknowledgment. Plaintiff testified that Lindsay took the deed out of his pocket 'already made out'; that he counted out $ 500 which he took out of his pocket; that 'it seemed to be already separated' from any other money he may have had; that she immediately handed all of the money, just as he paid it to her, to the cashier of the bank for deposit to her account; and that the cashier at once entered the deposit of $ 500 on her bank book. Asked why she signed the deed, plaintiff answered: 'Because he told me I was going to lose all of my interest in the place, and that I never would get anything if I didn't; that if I didn't take the five hundred dollars I never would get anything out of it because Papa was going to let the interest get past due, and the place sell, and have it bought back and put it in my brother's name and I wouldn't get anything.' At that time she said she and her father and brother were not friendly and she was not communicating with them. In answer to a question on crossexamination, she stated she knew that in signing the deed she was selling her interest, 'but I signed it under conditions that if I didn't sign it that I never would get anything out of the farm, that arrangements were being made for the place to sell.' She further testified that she believed the representations made to her by Lindsay.

The deed in question is a general warranty deed in the form customarily used in this state with the usual warranties and covenants. It names 'Raymond L. Miles of the County of Jackson in the State of Missouri,' as grantee, and, as recorded, recites a consideration of fifteen hundred dollars, though plaintiff testified that when she signed it the consideration as written in the deed was five hundred dollars. The original deed was not produced at the trial. The interest conveyed as described in the deed was: 'All my undivided interest in South one-half (1/2) of the Southwest one-fourth (1/4) of Section 8, Township 61, Range 26, subject to a $ 5,000.00 incumbrance, containing 80 A more/or less,' situated in Daviess county, Mo.

Miles at that time and for the preceding fifteen or twenty years lived at St. Joseph, Mo., and had never lived in Jackson county, as defendant Lindsay knew. Lindsay and Miles had been intimate friends for ten years or more.

Upon the return of Lindsay to Missouri, at his request Miles and his wife conveyed by quitclaim deed to defendants 'Roy O. Lindsay and May Lindsay, husband and wife,' for a recited consideration of $ 1,500, the interest conveyed by plaintiff to Miles. It is admitted that no actual consideration passed to Miles or to his wife for that deed, they not claiming and having never claimed any interest in the property. Miles had merely consented that Lindsay might have the deed from plaintiff made to him if Lindsay should buy the land and had agreed to convey to Lindsay upon request. Lindsay filed the deed from plaintiff to Miles for record March 22, 1919, but did not file for record the deed from Miles to himself and wife until August 13, 1923.

Plaintiff introduced in evidence the record of her account in the Fidelity State Bank of Cleveland, Okl., identified by the deposition of its cashier, Mr. Thatcher. The bank record showed that on January 28, 1919, plaintiff had on deposit $ 10. On March 11, 1919, the day the deed was made, the record showed a deposit to her account of $ 500. From that date until May 16, 1919, plaintiff made several small deposits aggregating $ 53, and drew checks from time to time so that by May 16 her account was reduced to $ 136.02, which she drew out on the last-named date. There is no evidence tending to show that she had an account at any other bank or that she invested any money in property or had any property after March 11, 1919. Mr. Thatcher did not know whether or not plaintiff had deposited with his bank all of the money paid...

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