Arn v. Arn

• Decision Date: 23 February 1915
• Docket Number: No. 16730.,16730.
• Parties: ARN et al. v. ARN et al.
• Court: Missouri Supreme Court

173 S.W. 1062

ARN et al. v. ARN et al.

No. 16730.

Supreme Court of Missouri, Division No. 2.

February 23, 1915.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Arthur J. Arn and others against Grace Arn and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a suit to determine the title to lot No. 480, block 35, in McGee's addition to Kansas City, Mo. The three plaintiffs are children of Ferdinand Arn. The defendant Grace Arn is the widow, and defendant Edward F. Arn a minor son, of one Edward F. Arn, a deceased son of said Ferdinand Arn. The petition is in the usual form. The answer, in substance, contained the following allegations: (1) Denies that plaintiffs are the owners of the property. (2) States that another and prior suit is pending, involving the same subject-matter. (3) That Edward F. Arn, deceased, owned an undivided one-fourth interest in said property, which now belongs to the defendants, as his son and widow. (4) That on December 14, 1874, said Ferdinand Arn and wife, the then owners of said real estate, "executed and delivered to the said plaintiff Arthur J. Arn a warranty deed whereby they conveyed to the said Arthur J. Arn, for the use and benefit of Arthur J. Arn, Isabella C. Lind, Eliza Wahlenmaier, and the said Edward F. Arn, Sr. (now deceased), the legal title" in and to said property; that thereupon said four persons above named became the owners, as tenants in common, in equal shares, of said real estate; that said conveyance was a gift, the sole consideration thereof being love and affection which the grantors had for their said children; that said Arthur J. Arn frequently recognized the trust on behalf of his brother and sisters and himself, and admitted that he so held title to said real estate for their common use and benefit, and could not convey the same without the explicit consent of each; that said Edward F. Arn, Sr., died in 1906, and that said defendants, as widow and son of said Edward F. Arn, Sr., deceased, became the owners of his undivided one-fourth interest in said property; that later, and on September 11, 1909, in furtherance of a conspiracy formed between the plaintiffs and said Ferdinand Arn to deprive defendants of their interest in said property, the said Arthur J. Arn, without the knowledge and consent of defendants, conveyed said property, without consideration, back to said Ferdinand Arn, and that thereafter, on September 30, 1909, said Ferdinand reconveyed said property by warranty deed, for a consideration of $1, to the plaintiffs herein; that said last-mentioned deed was obtained from said Ferdinand Arn by undue influence on the weakened and enfeebled mind of said Ferdinand Arn. (5) That prior to the death of said Edward F. Arn, Sr., said Arthur J. Arn conveyed said property to Edward F. Arn, but that the deed was unrecorded, and that the same is now lost. (6) That in 1901 said Ferdinand Arn, 83 years of age, and enfeebled in mind and body, induced Edward F. Arn, deceased, then living in Texas, to abandon his home in Texas and move to Kansas City, Kan., so as to look after the property interests belonging to the children in the two Kansas Cities, as well as to provide a home for Ferdinand Arn; he yielded to this request, and moved to Kansas City, where he looked after said properties, collected rents, and retained the general management of said properties until his death in 1906; that the real estate in controversy is worth in excess of $75,000. The answer prayed: That the deed of September 11, 1909, from Arthur J. Arn to Ferdinand Arn, and also the deed of September 30, 1909, from said Ferdinand Arn to the three plaintiffs, be canceled and set aside; that the real estate in controversy be adjudged and decreed to belong to the three plaintiffs and to defendant Edward F. Arn, Jr., as heir of said Edward F. Arn, Sr., deceased, subject to the dower interest of Grace Arn in Edward F. Arn, Jr.'s, one-fourth interest; that an accounting be had of rents collected since the death of said Edward F. Arn, Sr.; and that the rents so collected be distributed to the respective owners in proportion to their interest in the same. The reply admits the execution of the deeds of December 14, 1874, September 11, 1909, and September 30, 1909, and further states that said Arthur J. Arn never "executed any instrument in writing evidencing, in any manner, any such trust as is set up in said answer." The other allegations were denied. Trial was had before the court, which resulted in a decree in favor of the plaintiffs and against the contention of the defendants, and the property was decreed and adjudged to belong to the three plaintiffs. Thereafter defendants duly perfected an appeal to this court. The evidence upon the part of the plaintiffs tended to establish the following facts:

The following deeds, conveying the property in controversy, were admitted in evidence:

Warranty deed, dated December 14, 1874, executed by Ferdinand Arn and wife to Arthur John Arn.

Deed dated December 2, 1888, executed by Arthur J. Arn, a single man, to said Ferdinand Arn. This deed was acknowledged December 27, 1888 before a notary public, and delivered to the grantee, but was never recorded.

Deed dated September 11, 1909, executed by Arthur J. Arn and wife to said Ferdinand Arn. This deed was recorded September 21, 1909.

Deed dated September 30, 1909, executed by said Ferdinand Arn to the three plaintiffs.

Said Ferdinand Arn was present at the trial, and testified: That he was 88 years of age, and had lived in Kansas City, Kan., for 40 years; remembered the occasion of buying this property, and later, in 1874, of deeding the property to his son Arthur. That at the time the deed was made Arthur was a schoolboy, under age, away from home, and knew nothing about the deed until his return from college about 1888. That he transferred the property to Arthur in 1874 because he was threatened with some lawsuits. That when Arthur came home in 1888 he informed him of the deed, and requested Arthur to reconvey the property to him. That thereupon, in 1888, they went to Lawyer Garrett's office. The above-mentioned deed of December 2, 1888, was prepared and executed by Arthur, and acknowledged before Mr. Garrett, a notary public. Garrett died a number of years before the trial. That Arthur delivered the deed to him, and he was in no hurry to put it on record, and finally forgot about having the deed recorded until one summer when he and his wife returned from a trip to California he thought about the deed. That he had kept the deed in a trunk which was unlocked, and which was left in his residence when he went to California. That his son, Edward F. Arn, Sr., occupied the house in his absence. Upon his return he looked in the trunk for the deed, but it was gone. This was about 8 years before his wife's death which occurred in 1898. That he was the father of the three plaintiffs and of said Edward F. Arn, Sr., deceased, and that they were his only children. That Arthur was the youngest child. Witness stated that he had always retained possession of said property, collected rents, and paid the taxes thereon. That after his son Edward's death the deed made by Arthur to him in 1888 was found "downstairs" where Edward F. Arn, Sr., and wife had lived. That when the deed was found they sought the advice of a lawyer about having it recorded, and their lawyer, Mr. Jenkins, told them that if the old deed was put on record it would have to lay in the recorder's office one year, and the lawyer advised that a new deed be made. Following this advice, the new deed, being the one dated September 11, 1909, from Arthur J. Arn to witness, was executed and recorded. The witness further testified that the doctor told him that his heart was "out of fix," and that he might drop off at any time. The witness wanted his three living children to have the property in question, and for that reason executed the deed dated September 30, 1909. That he provided for his grandson, Edward F. Arn, Jr., by willing him a house and lot in Kansas City, Kan., and that he had intended to give his grandson another house, but that the defendant Grace Arn had sued him and that he had not given the other property to his grandson. Witness stated that there was never, at any time, an agreement that the property was to be held by the plaintiff Arthur J. Arn for the benefit of his brother and sisters.

On cross-examination the witness stated that he had deeded other property in Kansas City, Kan., to his children, at different times, but that none of the property was deeded to them in trust for the others. Witness stated: That when his son Edward returned from Texas, he agreed to give Edward 10 per cent. of all the rents that Edward would collect for him. The arrangements were that Edward was to collect the rents and deposit such money in the bank, and then, at the end of the year, he was to divide it up with his sisters and brother. That Edward collected the rents and kept all. That he started his son Edward in the business of making cement blocks. That Edward, at the time of his death, owed the witness $3,000 for rents collected. That his son, after coming back from Texas, married the defendant Grace, and they lived at his house until Edward's death; he boarding with them for the use of his house. After Edward's death, the widow and child stayed at his house, and he boarded with them and paid for his board, and allowed the widow to collect some of his rents, for which he paid her.

U. G. Burris, tenant for about 20 years of a part of the property in controversy, testified: That Ferdinand Arn rented the property and collected the rents the greater portion of the time. That a part of the time the rents were collected by Edward F. Arn, Sr. That when the tenant wanted any repairs made or anything done about the premises, the son, Arthur J. Arn, said he would have to consult his father about...