Allan v. Allan

• Decision Date: 14 January 1963
• Docket Number: No. 49223,No. 1,49223,1
• Parties: Billye New ALLAN, Plaintiff-Appellant, v. Thomas G. ALLAN, Defendant-Respondent, v. Fannie I. ALLAN, Third-Party Defendant-Respondent
• Court: Missouri Supreme Court

Page 578

364 S.W.2d 578

Billye New ALLAN, Plaintiff-Appellant, v. Thomas G. ALLAN, Defendant-Respondent, v. Fannie I. ALLAN, Third-Party Defendant-Respondent.

No. 49223.

Supreme Court of Missouri, Division No. 1.

Jan. 14, 1963.

Motion for Rehearing and to Transfer to Court En Banc Denied

Feb. 11, 1963.

Douglas & Douglas, Neosho, for appellant.

Emerson Foulke, Joplin, for respondent.

HOLMAN, Commissioner.

Plaintiff's petition in this cause was in two counts. In the first count she sought a divorce from defendant, and in the second count she prayed for a decree for the partition and sale of a 74-acre farm which had been conveyed to plaintiff and defendant by defendant's parents, John A. and Fannie I. Allan. Defendant filed a cross bill alleging that plaintiff was addicted to drunkenness and, upon the trial, was granted a decree of divorce from plaintiff. No appeal has been taken from that decree. John A. Allan died prior to the filing of this suit. Defendant, for answer to Count II, alleged that 'a consideration for said conveyance was that the defendant and plaintiff care for and provide for the defendant's father and mother for and during their natural lives and it was understood and agreed between the parties to said conveyance at the time said conveyance was made that the defendant's father and mother have and retain a life estate in the real estate described; * * * that through an oversight and mutual mistake on the part of all the parties * * * the said conveyance failed to recite that the grantors retained life estate in the real estate conveyed.' He also filed a motion seeking to have his mother made a third-party defendant and that motion was sustained.

Fannie Allan, in her answer, adopted the allegations of defendant's answer and prayed that the court 'reform said deed so as to recite that she, the said Fannie I. Allan, has and maintains a life estate in the real estate described in court two of the plaintiff's petition or in the alternative that said deed be set aside for failure of consideration.' The trial of Count II resulted in a judgment setting aside the aforementioned deed 'because of a failure of consideration to support the deed in that plaintiff Billye New Allan and the defendant Thomas G. Allan have failed and refused to carry out and fulfill the consideration for said deed.' Plaintiff has duly appealed from that judgment.

Plaintiff and defendant were married on November 27, 1956, and separated July 15, 1961. The deed in question, executed September 5, 1957, was a warranty deed in usual form and recited a consideration of 'one dollar and other good and valuable considerations.' Because of illness John A. Allan was unable to sign his name to the deed and therefore executed it by mark which was witnessed by T. H. Litton and Ray E. Garber. Mr. Allan died August 14, 1958. Both plaintiff and defendant concede that no money was paid as a consideration for the conveyance.

Defendant testified that he had lived at his father's home during the period of his marriage to plaintiff because his father had been quite ill and it was necessary that he help care for him; that his father was bedfast, had no control over his elimination, and had required a great deal of care for some years before his death; that he had made an agreement with his father and mother to the effect that they would deed him the farm if he would take care of his father and make a home for his mother as long as they lived; that his wife was not present at the time the deed was made because she was in the hospital; 'I insisted her name be put on it; I didn't have an idea in the world we would ever have any trouble. Q. You did understand they were deeding it to you and your wife, though? A. * * * With the specifications that we make a home for them as long as they lived. Q. That wasn't specified in the deed? A. Because my father and I have always done just exactly what we told one another we would do.'

Defendant further testified that he had gone to the office of his attorney, Mr. Foulke, and instructed him to prepare the deed; that he didn't tell Mr. Foulke anything about any agreement, 'just told him to make out a deed'; that Mr. Foulke was the notary public who took the acknowledgment of the grantors; that he had helped his mother in taking care of his father until his father died, but that plaintiff had not assisted in any way in caring for his father or mother; that his mother was 80 years of age, and that at trial time he and his mother were still living together on the farm here involved.

Plaintiff testified that she was not present when the deed was executed and that her husband had later told her that 'his dad gave it to him for taking care of him when he was sick'; that she had heard nothing about 'Tom's mother and father having a life estate in this real estate.' In regard to defendant's father, this witness stated, 'his mother and I took care of him and Tommie helped. We all took care of him.'

Fannie Allan (hereinafter sometimes referred to as respondent) testified that she and her husband had lived on the farm in question for 28 years. In regard to the reason for the execution of the deed this witness stated that she, defendant, and her husband 'talked it over and Tom had to quit farming because he couldn't take care of his dad and do justice to both; and we just decided we had better deed the farm to him because he was losing out all the way around. The other boys had gotten more than their share.' She further stated that she didn't know that plaintiff's name was on the deed, 'but we signed it to Tom with the understanding that I was to always have a home there as long as I lived.'

One of the witnesses to Mr. Allan's mark was Ray Garber who was a brother of Fannie Allan. He said there was some conversation before the deed was signed and that defendant's father stated that 'they would deed it to Tom provided it was their place, their home as long as they lived.' The other witness who signed the deed was Thomas Litton who testified that on the occasion the deed was signed 'Tom's daddy did ask him to take care of him and his mother as long as they were alive. Q. Was there anything said about them living there as long as they lived? A. Well, I wouldn't be positive about that part of it. Like I said, i couldn't say word for word, but he did ask them to take care of him.'

As heretofore stated, defendant and third-party defendant, in their pleadings, sought as alternative relief (1) the reformation of the deed to recite that the grantors retained a life estate in the real estate conveyed, which recital was omitted as a result of a mutual mistake on the part of all the parties, and (2) that said deed be set aside for failure of consideration.

At the outset of our consideration of this appeal we deem it appropriate to quote certain established rules applicable to cases of this nature. '[A] mistake affording ground for the relief of reformation must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. * * * [A]nd that mutual mistake, in order to justify granting the relief of reformation, must be established by clear and convincing evidence.' Walters v. Tucker, Mo.Sup., 308 S.W.2d 673, 675, 679. "A mutual mistake presupposes a prior or preceding agreement between the parties, and, this agreement of necessity must be shown.' Dougherty v. Dougherty, 204 Mo. 228, 237, 102 S.W. 1099, 1101.' Zahner v. Klump, Mo.Sup., 292 S.W.2d 585, 587. 'The cancellation of a...