Gard v. Arnold,

Decision Date30 June 1900
Citation57 S.W. 1035,157 Mo. 538
PartiesGARD, Appellant, v. ARNOLD, et al
CourtMissouri Supreme Court

Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.

Affirmed.

Sangree & Lamm for appellant.

(1) Appellant being old, ignorant and afflicted and living with her daughter and son-in-law at the time, any trace of coercion, surprise, or over solicitation will avoid a voluntary conveyance such as this. Such transaction will be scanned closely by a court of equity, especially where the beneficiaries owed a duty to protect their mother, where she parts with a considerable property necessary to her subsistence and independence, where she did not consult with disinterested advisers. Bell v. Campbell, 123 Mo. 1; Turley v. Edwards, 18 Mo.App. 676; Hensinger v Dyer, 147 Mo. 219. And the doctrine of the following authorities bear upon one, or the other, of the salient features of the case, while not directly in point on the whole case. Holliway v. Holliway, 77 Mo. 392; Cadwallader v. West, 48 Mo. 483; Yosti v Laughran, 49 Mo. 594; Martin v. Baker, 135 Mo 496. (2) The testimony of the witnesses at the immediate time of the execution of the deed is of very little probative force in this kind of a case. It was not to be expected that acts of coercion, or appearances of coercion, would exist before strangers at such time and place. The poison had been injected before. (3) The charge being akin to fraud, the defendants should not have contented themselves with a general blanket denial but should have made full disclosures of their side, if any, of the facts leading up to and surrounding the execution of this suspicious deed. Directors v. Levy, 1 Edw. Chancery, 316; Scull v. Reeves, 3 N.J.Eq. 84; Vreeland v. N. J. Stone Co., 25 N.J.Eq. 140.

H. T. Williams for respondents.

(1) Conclusions of fact drawn by the trial court will be deferred to because of its superior advantages for weighing the evidence and judging of the credibility of witnesses. Parker v. Roberts, 116 Mo. 65; Mathias v. O'Neil, 94 Mo. 520. This is especially the rule where, as in this case, all the witnesses testified orally before the trial court. Chouteau v. Allen, 70 Mo. 336; Lins v. Lenhardt, 127 Mo. 271. And when the evidence is conflicting the appellate court will strongly incline to sanction the trial court's finding. Erskine v. Lowenstein, 82 Mo. 30. (2) The decision of the trial court rests on the credibility of oral testimony and unless it is clearly against the preponderance of the evidence should be sustained. Taylor v. Short, 137 Mo. 517; Snell v. Harrison, 83 Mo. 651. (3) Appellant for the first time in the progress of the case, raises in this court an objection to respondent's answer because it was a general denial. But this objection, not having been presented to the trial court and not passed upon by him should not be considered here. Alexander v. Hayden, 2 Mo. 211; Swearengen v. Newman, 4 Mo. 456; Burdoin v. Trenton, 116 Mo. 358; 1 Vol. Pattison's Digest, p. 167, par. 1531 to 1825. This question is specifically passed upon in Kinzer v. Kinzer, 130 Mo. 131. (4) Appellant having made no showing to the contrary it must be presumed that the trial court applied the law correctly and as laid down in Turley v. Edwards, 18 Mo.App. 676; Bell v. Campbell, 123 Mo. 1. The whole evidence justly weighed by the trial court being insufficient to warrant his taking the land from Susan Arnold and giving it back to appellant, the decision should rest undisturbed. Daily v. Daily, 125 Mo. 96.

OPINION

BRACE, P. J.

This is a suit in equity to set aside a deed dated July 29, 1896, duly executed and acknowledged by the plaintiff, Barbara A. Gard, and on the same day duly recorded, whereby she conveyed to her daughter, the defendant, Susan A. Arnold, 35 acres of land in Pettis county.

The substantive facts alleged in the petition, for the relief sought are, that previous to the execution of said deed the plaintiff being persuaded thereto by her son-in-law, the defendant William Arnold, husband of the said Susan A., had set fire to and destroyed a vacant shanty of little value on a neighboring farm belonging to one Edward Imhauser. That the said defendants knowing this fact, by threatening to have her prosecuted for the crime and sent to the penitentiary, so intimidated her as to induce her to execute the deed aforesaid. The answer was a general denial. The finding and judgment was for the defendant, and the plaintiff appeals.

It appears from the evidence that at the time the deed was executed, the plaintiff was a widow aged about 58 years and 5 months. That she had been twice married and had five living children, one daughter by her first husband, and two sons and two daughters by her second husband; of the latter, the defendant Susan A. Arnold was one. That she was receiving a pension of $ 8 per month from the government. That she formerly lived on a farm in Morgan county. That in the year 1892 or 1893, she purchased a tract of land in Pettis county, containing 75 acres, of which the 35 acres in question forms a part, moved to it and thereafter made it her home, managing the farm and conducting all her business herself, her children having grown up, some of them married, and all gone off to do for themselves. This continued until the summer of 1894, when she made an arrangement with the defendant William Arnold, the husband of her said daughter, Susan A., by which they and their family, consisting of themselves and four small children, were to come and live with her on the farm. Theretofore they had been living in Johnson county, and were in destitute circumstances. They came, and on the 14th of August, 1894, she executed and acknowledged in due form a written lease of that date whereby she leased "her farm and all improvements" to Arnold for one year from and after the first day of March, 1895, upon the following terms: "Arnold is to pay one-third of all crops of grain that may be raised, the same to be put in cribs or granary. She, Mrs. Gard, is to live in the same house with the Arnolds, together with any other members of her family, so long as they conduct themselves in a peaceable manner. All the parties are to have the same use of the house and other buildings and pasture. Mrs. Gard is to have a garden in case she so desires. Arnold is to have the privilege of clearing up any part of timber land and for compensation shall receive an equal amount of land next to it free of rent. The lease also provides that Arnold shall cultivate the land well, and use the premises for no other purpose, and will not sublet, sell or assign his term without Mrs. Gard's written consent, and guard the property from all damages and keep the same in good repair and forfeit his lease if he does not keep these provisions, and at the expiration of this lease or a breach of it by him, he will, without further notice of any kind, quit and surrender the possession and occupancy of said premises in as good condition as careful use and natural wear and tear will permit," etc.

Shortly after these family relations had been thus established on the farm, probably in September following, the plaintiff had a will prepared and executed in due form. The evidence tends to prove that she had formerly been in better circumstances, and had made some gifts or advancements to her children other than to her daughter, Susan A., and to her youngest daughter Rena, and by this will she devised the farm at her death to Susan A., subject to a legacy of $...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT