Ross v. Ross

• Decision Date: 31 October 1883
• Parties: Ross et al. v. Ross, Plaintiff in Error.
• Court: Missouri Supreme Court

81 Mo. 84

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 circuit court of Cape Girardeau county, on the following petition:

Plaintiffs say that Sada Ross departed this life in Cape Girardeau county, Missouri, on the ____ day of ____, 1879, intestate. That said Sada left as heirs, children as follows: Mrs. W. H. Campbell, Zenas N. Ross, James H. Ross, Nancy C. Ross married to William Hitt, Sarah J. Ross married to B. H. Newell, D. L. Ross married to George N. Mefford, and this defendant Jasper M. Ross, entitled to her estate. That prior to her death she was the owner in fee simple of the following described real estate, situated in Cape Girardeau county: The southeast quarter of the southwest quarter, and the west half of the northeast quarter of the southwest quarter of section 21, in township 33, north of range 12, east, containing sixty acres. That for five years prior to the death of Sada Ross, the said Sada was not of sound mind, but on the contrary, was of unsound mind, and wholy incapable of making a contract, or of transacting any business. That the said Jasper M. Ross, the defendant, did on the 11th day of April, 1877, and while the said Sada Ross was not of sound mind, fraudulently and by undue influences, obtain from said Sada Ross a warranty deed for the above described real estate, which said deed was executed and delivered without any consideration, [ and was intended to be a mortgage or security for debts already paid for said Sada] and the said Jasper has caused the said deed to be placed on record in the recorder's office of said county, in book No. 10, at page No. 216, a certified copy of which is hereby attached, marked Exhibit (A). That the said deed is a cloud upon plaintiffs' title. Wherefore plaintiffs pray the court to take and hear the testimony in this case, and to set aside, cancel and annul said deed, and to compel the said defendant to account for the rents and profits accruing from said premises, and to deliver to plaintiffs the possession thereof, and for such other and further relief as may be just and proper.

The answer of defendant denies the allegations of the petition as to the unsoundness of mind of Sada Ross, and all fraud or undue influence in the procurement of the deed, and avers that it was obtained on a valuable consideration.

It appears from the record before us, that after all the evidence was heard, the cause was submitted to the court, and by it taken under advisement, and that five days...