81 Mo. 84 (Mo. 1883), Ross v. Ross

Citation:81 Mo. 84
Opinion Judge:NORTON, J.
Party Name:Ross et al. v. Ross, Plaintiff in Error.
Attorney:R. B. Oliver and R. H. Whitelaw for plaintiff in error. Linus Sanford and W. H. Miller for defendants in error.
Court:Supreme Court of Missouri
 
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Page 84

81 Mo. 84 (Mo. 1883)

Ross et al.

v.

Ross, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1883

Appeal from Cape Girardeau Circuit Court. --HON. J. D. FOSTER, Judge.

REVERSED.

R. B. Oliver and R. H. Whitelaw for plaintiff in error.

There was no evidence to show that Sada Ross was of unsound mind, or that defendant was guilty of any fraud or exercised any undue influence over her at the time of the execution of the deed. The evidence offered by plaintiffs to show that the deed was intended as a mortgage, was inadmissible, because there was no allegation in the petition to authorize it. The evidence must correspond with and sustain the allegations of the petition, and testimony as to facts collateral to the issues is inadmissible. State v. Roberts, 62 Mo. 388; Buffington v. Railroad Co., 64 Mo. 246; Huston v. Forsythe, 56 Mo. 416; Lester v. Railroad Co., 60 Mo. 265. The amendment to the petition, after the cause was submitted to the court, should not have been allowed. Lumpkins v. Collier, 69 Mo. 170; Clements v. Yeates, 69 Mo. 623, and cases cited; Cox v. Esteb, 68 Mo. 110. The deed offered shows the land to be in range 13, while the allegation in the petition places it in range 12. This is a fatal variance. The judgment cannot stand. It is not responsive to the issues made at the trial. White v. Rush, 58 Mo. 105; Cox v. Esteb, 68 Mo. 110.

Linus Sanford and W. H. Miller for defendants in error.

The petition states a cause of action, charging fraud in obtaining the deed, want of capacity on the part of Mrs. Ross to contract, and undue influence exercised over her by Marion; and want of consideration in the deed. Cadwalader v. West, 48 Mo. 483, and cases there cited; Garvin v. Williams, 44 Mo. 465; McClure v. Lewis, 72 Mo. 314. The evidence at the trial sustains the allegations of the petition, and the plaintiffs below are entitled to the relief asked. Cadwalader v. West, supra. The plaintiffs in error cannot urge any objection to the admission of improper testimony in the court below. His motion for a new trial does not call the attention of the court to any error of this kind. This fourth reason first appears in the motion as copied in his brief. Saxton v. Allen, 49 Mo. 417. The amendment to plaintiffs' petition was not such as to mislead appellant, and was unnecessary.

NORTON, J.

This suit was commenced in the...

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