Anast v. Czerwenka

• Citation: 203 S.W.2d 463
• Decision Date: 09 June 1947
• Docket Number: No. 40014.,40014.
• Parties: FLORA ANAST and ELFRIEDA STOTLEMEYER v. ARTHUR C. CZERWENKA, IRENE F. CZERWENKA, Appellants, and MATILDA PAUSLY, Respondent.
• Court: United States State Supreme Court of Missouri

203 S.W.2d 463

FLORA ANAST and ELFRIEDA STOTLEMEYER v. ARTHUR C. CZERWENKA, IRENE F. CZERWENKA, Appellants, and MATILDA PAUSLY, Respondent.

No. 40014.

Supreme Court of Missouri.

Division Two, June 9, 1947.

Motion for Rehearing or to Transfer to Banc Overruled, July 14, 1947.

Appeal from Circuit Court of City of St. Louis. — Hon. Eugene J. Sartorius, Judge.

REVERSED AND REMANDED (with directions).

Hay & Flanagan and S.D. Flanagan for appellants.

(1) The respondents failed to prove either a constructive or resulting trust by the most clear, positive and definite proof. Strype v. Lewis, 180 S.W. (2d) 688, 352 Mo. 1004; Triesler v. Helmbacher, 168 S.W. (2d) 1030, 350 Mo. 807; Tobin v. Wood, 159 S.W. (2d) 287; Purvis v. Hardin, 122 S.W. (2d) 936, 343 Mo. 652. (2) The cancellation of a deed is an exercise of a most extraordinary power of an equity court and evidence to justify such action should be clear, cogent and convincing and should not be exercised except in a clear case. Hedrick v. Hedrick, 168 S.W. (2d) 69, 350 Mo. 716; Hamilton v. Steininger, 168 S.W. (2d) 59, 350 Mo. 698; Lastofka v. Lastofka, 99 S.W. (2d) 46, 339 Mo. 770; Edinger v. Kratzer, 175 S.W. (2d) 807. (3) The court will require greater proof of a constructive trust by deed than by a devise. Ferguson v. Robinsan, 167 S.W. 447, 258 Mo. 113. (4) The court erred in not sustaining the deed because the respondents failed to prove by clear, cogent and convincing evidence that grantor was of unsound mind when the deed was executed. Old age, poor memory, sickness or disability are not alone sufficient to show that a grantor is incompetent to make a deed. In re Nelson Estate, 185 S.W. (2d) 890; Burgdorf v. Keeven, 174 S.W. (2d) 816, 351 Mo. 1003; Weakley v. Weakley, 198 S.W. (2d) 699; Hamilton v. Steininger, 168 S.W. (2d) 59, 350 Mo. 698; Hedrick v. Hedrick, 168 S.W. (2d) 69, 350 Mo. 716; Edinger v. Kratzer, 175 S.W. (2d) 807; Sawyer v. White, 122 Fed. 223. (5) The respondents failed to show by clear, cogent and convincing evidence that grantor was unduly influenced by grantee. Ulrich v. Zimmerman, 163 S.W. (2d) l.c. 574, 349 Mo. 772; Horn v. Owens, 171 S.W. (2d) 585; Burgdorf v. Keeven, 174 S.W. (2d) 816, 351 Mo. 1003. (6) The mere opportunity to unduly influence, unsupported by other evidence showing its actual existence, does not raise a presumption of undue influence. Even a mere confidential relationship does not raise it. Lastofka v. Lastofka, 99 S.W. (2d) 46, 339 Mo. 770; Hahn v. Brueseke, 155 S.W. (2d) 98.

Sigmund M. Bass, John Grossman and Sam Hatupin for respondents Flora Anast and Elfrieda Stotlemeyer.

(1) The evidence was sufficient to have sustained the charge of undue influence because whenever, as a result of age, sickness, or other cause, there is a great weakness of mind, not amounting to total incapacity, in a person executing a conveyance, and it appears that there was either no consideration therefor or a grossly inadequate one, the conveyance may be set aside by a court of equity upon a proper and reasonable application made either by the injured person or his representative or heirs. Morris v. Morris, 4 S.W. (2d) 459; Colquitt v. Lowe, 184 S.W. (2d) 420; Jones v. Belsche, 141 S.W. 1130, 238 Mo. 524; Manahan v. Manahan, 52 S.W. (2d) 825; McKissock v. Groom, 50 S.W. 115, 148 Mo. 459; Ryan v. Ryan, 73 S.W. 494, 174 Mo. 279. (2) A preponderance of the evidence is sufficient to justify relief against a deed upon the ground of undue influence. 18 C.J. 445, sec. 552-c. (3) Less evidence will be required where the grantor is physically weak and of such mental condition that control thereof is comparatively easy. Ennis v. Burnham, 60 S.W. 1103, 159 Mo. 494; Hershey v. Horton, 15 S.W. (2d) 801, 322 Mo. 484; Manahan v. Manahan, 52 S.W. (2d) 825; 18 C.J., pp. 445, 446.

Robert G. Winter, Yeckel, Leffler & Zepf and Louis F. Yeckel for respondent Matilda Pausly.

(1) Where a grantee takes possession of real estate under a deed, absolute in its terms, under a parol agreement whereby he undertakes to hold the property for the purpose of reconveying it to heirs of the grantor, his refusal to perform his promise amounts to a constructive fraud, and he will be held to be a trustee for the grantor or his heirs. Strype v. Lewis, 180 S.W. (2d) 688, 352 Mo. 1004; Jannsen v. Christian, 57 S.W. (2d) 692; O'Day v. Annex Realty Co., 191 S.W. 41; Phillips v. Jackson, 144 S.W. 112, 240 Mo. 310; Brightwell v. McAfee, 155 S.W. 820, 240 Mo. 562; 65 C.J. 456; Wellman v. Wellman, 206 Iowa 445, 220 N.W. 82. (2) It is not essential that there be an actual verbal promise to carry out the grantor's conditions. When one accepts a conveyance which the grantor states is to be on certain conditions as to the use of the property, the grantee will be held to have acquiesced in and accepted the land upon the conditions made. Jannsen v. Christian, 57 S.W. (2d) 692; 26 R.C.L., pp. 1238, 1239; Mead v. Robertson, 110 S.W. 1095, 131 Mo. App. 185; 65 C.J. 456

WESTHUES, C.

This is a suit in equity to set aside a deed conveying property to defendant, Arthur C. Czerwenka, or to establish a constructive trust in favor of plaintiffs and defendant Pausly. The trial court, by its judgment, decreed that defendant Arthur Czerwenka held the property in trust and also decreed partition. From the judgment Arthur Czerwenka and his wife, Irene F. Czerwenka, appealed.

The real estate in controversy consisted of a flat and a bungalow located at 4140 and 4142 Delor Street, St. Louis, Missouri. It was owned by John Czerwenka, who, at the time the deed in question was alleged to have been signed, was eighty years of age. There were four children, namely plaintiffs, Flora Anast and Elfrieda Stotlemeyer, and defendants, Arthur Czerwenka and Matilda Pausly. The mother of these children preceded her husband in death. Plaintiff, Flora Anast, was married in 1941. She had, prior to that time been living with her father and taking care of the home. When she married she established her own home and thereafter the defendant, Matilda Pausly, who lived nearby, often aided in taking care of her father's house. She also went with him to various places on matters of business, one being the office of Yeckel, Leffler and Zepf, a firm of lawyers. On several occasions the matter of making a will was discussed. Mr. Czerwenka, however was not ready to do so and did not make a will. About December 28, 1942, the defendant, Arthur Czerwenka, and his wife came to the home of John Czerwenka and remained there until his death on January 24, 1943. The evidence as to why Arthur and his wife came to the home of Arthur's father is very much in conflict. A number of witnesses testified that Arthur lived near Fenton, Missouri, in a clubhouse and that due to high water which surrounded the house he went to his father's home and asked to stay there until the water receded. Arthur contended he went to live with his father because he had been asked to do so. Theodore E. Sentner, a grand-nephew of John Czerwenka, lived with his uncle for about four months prior to his death. Sentner at the time was attending school. On Saturday morning, January 16, 1943, he found his uncle on the floor of his room unable to get up. He called others in the home and Czerwenka was helped or placed in bed and a doctor summoned. The doctor stated Czerwenka had suffered a hemorrhage of the brain causing paralysis. Dr. William Koutsoumpas was called to see him on Sunday, January 17. He testified that "he was in a comatose condition, semi-conscious, had a hard breathing, and apparently he was suffering from the effects of a cerebral hemorrhage." The doctor further testified as follows:

"I said that the man was unconscious, in a semi-comatose condition. He could not carry on a conversation. The man could not talk, and naturally I could not judge his mentality. The man was comatose, semi-conscious.

"Q. Would he be able to understand what you tried to tell him, doctor, or ask him? A. The day I examined him, gentlemen, he was not able to understand anything."

On the following day, January 18, Mr. Yeckel called at the home at the invitation of Mrs. Pausly. He testified that he talked to the defendants, Mrs. Pausly and Mrs. Irene Czerwenka, but did not see John Czerwenka on that day; that Mrs. Pausly informed him that her father was very ill and that she wanted the witness to prepare a deed to the property conveying title to defendant Arthur Czerwenka, her brother; that Mrs. Pausly further stated that in case their father died the brother would divide the property among the four children share and share alike. Mr. Yeckel testified that he explained the dangers of such a transaction and suggested that Mrs. Pausly's name also be in the deed as grantee and that Mrs. Pausly said that Arthur was the man of the house and she felt he would do the right thing. The purpose of deeding the property to Arthur and having it divided by him was to avoid costs of administration. The deed was prepared and the following day, January 19, Mr. Zepf and Mr. Yeckel returned to the Czerwenka home to have it signed and acknowledged. Mr. Yeckel testified that he, Mr. Zepf, Mrs. Pausly and Mrs. Czerwenka had a discussion as to whether the father was capable of understanding the transaction; that thereafter they went upstairs and the father was introduced to Mr. Zepf. The evidence of these parties was that Mr. Czerwenka nodded and smiled; that then Mr. Yeckel explained the deed and its purpose and effect to Mr. Czerwenka and asked him if he understood; that in response Mr. Czerwenka nodded his head and smiled. Mr. Czerwenka, who was then propped up in bed, with the aid of Mrs. Pausly holding his hand, signed the deed. It must be noted here that the evidence conclusively shows that Mr. Czerwenka was unable to talk or write after the paralytic stroke. When the deed was thus signed Mr. Zepf affixed the acknowledgment thereto. Both Mr. Zepf and Mr. Yeckel testified that in their...