Blackiston v. Russell

• Decision Date: 20 November 1931
• Parties: Ebenezer Blackiston, William P. Blackiston, Frank H. Blackiston, Charles A. Blackiston, Mary Anna Upson, Belle L. Ellison, Ebenezer Ellsworth and Susan J. Kackley, Appellants, v. Edward Flint Russell and Ionia B. Russell
• Court: Missouri Supreme Court

44 S.W.2d 22

328 Mo. 1164

Ebenezer Blackiston, William P. Blackiston, Frank H. Blackiston, Charles A. Blackiston, Mary Anna Upson, Belle L. Ellison, Ebenezer Ellsworth and Susan J. Kackley, Appellants, v. Edward Flint Russell and Ionia B. Russell

Supreme Court of Missouri

November 20, 1931

Appeal from Buchanan Circuit Court; Hon. J. V. Gaddy Judge.

Affirmed.

Culver Phillip & Voorhees and Miles Elliott for appellants.

(1) There was no delivery of the deed with an intention on the part of the grantor to divest herself of title at the time and the deed should have been set aside on that ground. Van Huff v. Wagner, 287 S.W. 1038; Coles v. Bedford, 232 S.W. 728; Ray v. Walker, 240 S.W. 196; Murphy v. Gabbert, 166 Mo. 596; Griffin v. McIntosh, 176 Mo. 392; Dallas v. McNutt, 249 S.W. 36. (2) The evidence on the part of defendants wholly failed to meet the burden of showing mental capacity of the grantor, cast upon them by reason of the confidential relation existing between the grantor and the grantee in the deed. The evidence showing mental incapacity of the grantor was so overwhelming and so wholly without substantial contradiction that the court should have found for plaintiffs on this issue as a matter of law. Jones v. Thomas, 218 Mo. 536; Ennis v. Burnham, 159 Mo. 518; Watt v. Loving, 240 S.W. 124. (3) There was no evidence rebutting the presumption of undue influence arising from the fact that defendant grantee in the deed, was the agent and attorney in fact of the grantor. There was also affirmative evidence showing undue influence. The court should have decided this issue in favor of plaintiffs as a matter of law. Mowry v. Norman, 204 Mo. 189; Kincer v. Kincer, 151 S.W. 429; Cook v. Higgins, 235 S.W. 815; Morris v. Morris, 4 S.W.2d 462; Ray v. Walker, 240 S.W. 193. (4) The admission of opinions of witnesses on the ultimate questions to be decided by the court, such as that the grantor in the deed, had mental capacity to understand or know the consequences of the disposition she was making of her property, etc., was error. Post v. Bailey, 254 S.W. 74; Wiggington v. Rule, 205 S.W. 180. (5) On the undisputed facts, the deed was void for want of consideration, and the court should have set it aside on that ground. Vining v. Ramage, 3 S.W.2d 721; Morris v. Morris, 4 S.W.2d 463.

Randolph & Randolph for respondents.

(1) While an appellate court is not bound by the trial court's findings of fact in an equity case, yet where many of the facts of the most probative force are found in the oral testimony of witnesses more or less interested in the result of the suit, the appellate court will defer to the chancellor's findings. Wiggington v. Burns, 216 S.W. 760; Curtis v. Alexander, 257 S.W. 437; Croft v. Moorehead, 316 Mo. 1213; Bourg v. Railway Co., 245 S.W. 43; Securities Savings Bank v. Kellens, 9 S.W.2d 971. (2) Where parties are charged with fraud, undue influence, etc., and their acts complained of are as consistent with honesty and fair dealing as with fraud and bad faith, they are presumed to have acted honestly and fairly, and all doubt should be resolved in favor of good faith. Ray County Savings Bank v. Hutton, 224 Mo. 42. (3) The burden of proving the charges in plaintiff's petition rested on plaintiffs throughout the case. Elzea v. Dunn, 297 Mo. 690; Curtis v. Alexander, 257 S.W. 432; Croft v. Moorehead, 293 S.W. 412. (4) Plaintiffs' proof was insufficient to warrant the trial court finding the deed void on the ground of mental incapacity of grantor, especially in the face of defendants' evidence to the contrary. Curtis v. Alexander, 257 S.W. 432; Elzea v. Dunn, 297 Mo. 690. (a) In order to render a deed void on the ground of mental incapacity, it should appear that the grantor was laboring under such a degree of mental infirmity as to make her incapable of understanding the nature of her act. 18 C. J. 218, par. 131; Cutts v. Young, 147 Mo. 587. (b) The real test is not merely that the grantor's mental powers were impaired, but whether she had sufficient capacity to understand in a reasonable manner the nature and effect of the act which she was doing when she executed the deed. 18 C. J. 218, par. 131; Chadwell v. Reed, 198 Mo. 359; Bennett v. Ward, 272 Mo. 671; Messer v. Helfer, 212 S.W. 896. (5) Plaintiffs produced no evidence of undue influence and under the facts, no presumption arose from the power of attorney executed to Edward Russell and Marmaduke B. Morton, jointly. Canty v. Halpin, 294 Mo. 118, 242 S.W. 97; Elzea v. Dunn, 297 Mo. 690, 249 S.W. 933. (a) It must appear that undue influence is exercised at the time the deed was executed and delivered and that it controlled the act. 18 C. J. 236, par. 163; Turner v. Turner, 44 Mo. 535. (b) Undue influence must be such as overbalances the will of grantor to the extent of preventing voluntary action on her part. 18 C. J. 236, par. 163; Jones v. Belshe, 238 Mo. 524; Curtis v. Alexander, 257 S.W. 432. (6) The physical delivery of the deed by grantor to the bank, accompanied by the written instructions that it was to be delivered to grantee upon her death, and her many declarations that she intended to deed the property to grantee; her statement at the time the deed was executed that she was glad she had deeded the property to grantee, and the fact that grantor released all dominion and control over the deed after it was delivered to the bank and never had it or called for it again, and the deed was actually delivered by the bank to grantee after grantor's death, was sufficient to operate as a valid delivery of the deed and made it effective to convey title to grantee. 18 C. J. 208, par. 114; Meredith v. Meredith, 287 Mo. 250; Cook v. Newby, 213 Mo. 471; Crites v. Crites, 225 S.W. 990; Tillman v. Carthage, 297 Mo. 74, 247 S.W. 992; Williams v. Latham, 113 Mo. 165. (7) It was proper for witnesses to give their opinions as to Mrs. Fleming's mental capacity. Appleby v. Brock, 76 Mo. 314; Moore v. Moore, 67 Mo. 192; Parks v. Marshall, 14 S.W.2d 590. (8) The undisputed evidence shows this deed was a gift by grantor to Edward Flint Russell. Therefore, plaintiffs' claim of no consideration is without merit. Studybaker v. Cofield, 159 Mo. 596; Goodman v. Griffith, 238 Mo. 706; Lee v. Beasley, 258 Mo. 599.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action in equity to set aside a deed, to real estate in the city of St. Joseph, made by Rebecca S. Fleming to respondent Edward Flint Russell. Mrs. Fleming, a widow, died December 14, 1926, in St. Joseph, Missouri, at the age of 82 years. In 1925 she owned a residence at 1922 Clay Street, which had belonged to her deceased husband, and another tract of approximately 25 acres, which had been the home of her father, Captain Blackiston. Mrs. Fleming had no children. She had a sister, respondent Ionia B. Russell, who lived at Lawrence, Kansas. Mrs. Russell was made a defendant because she would not join as plaintiff. Mrs. Fleming was very fond of this sister and her children and visited in Lawrence frequently. Mrs. Russell also visited Mrs. Fleming frequently in St. Joseph. Mrs. Russell had four children, respondent Edward Russell, of Kansas City, Percy Russell, Memphis, Tennessee, Mrs. Rudier, of Lawrence, Kansas, and Mrs. Steward, of Phoenix, Arizona. The Russell children frequently visted Mrs. Fleming in St. Joseph and it was her custom to spend every other winter with Mrs. Steward in Phoenix. Mrs. Fleming had a deceased sister, Mrs. Anna Ellsworth, who had two children, appellants Belle Ellison and Ebenezer Ellsworth, who were not residents of Missouri and whom Mrs. Fleming seldom saw. Mrs. Fleming also had a deceased brother, Frank Blackiston. His six children are the other appellants. One of them, Mrs. Susan Kackley, had lived in St. Joseph for some time. About 1925 she and her husband moved into the house on Mrs. Fleming's 25-acre farm. Mrs. Kackley's mother lived there with her, as did Mary Anna Upson, Mrs. Kackley's sister.

During 1925 the Blackiston family seems to have gathered in St. Joseph. Ebenezer Blackiston had lived there since 1921. It is not in evidence where Mrs. Upson lived prior to 1925, but she said beginning with the fall of 1925 she saw Mrs. Fleming often. Charles Blackiston came to St. Joseph in December, 1925. He first went to Mrs. Kackley's and later he and his wife moved in with Mrs. Fleming. Percy (William P.) Blackiston also came, in 1925, to St. Joseph, from Oklahoma. The record is silent as to the whereabouts of Frank H. Blackiston. Mrs. Kackley and her husband took much interest in Mrs. Fleming and her property. The Moila Temple Association of St. Joseph owned a golf course, adjoining Mrs. Fleming's 25-acre tract, where the Kackleys lived. Mr. Kackley tried to sell it to the Association for an addition to its golf course. He got Mrs. Fleming to sign a letter offering it to the Association for $ 25,000. There were also real estate men working on the same deal for Mrs. Fleming, and there was evidence that she valued it as high as $ 40,000. However, the $ 25,000 offer was not accepted and the deal was dropped.

In August, 1925, Mrs. Fleming conveyed ten acres of this farm including the residence, to Mrs. Kackley, for an agreed price of $ 7,000, of which Mrs. Kackley paid $ 500. The deed was immediately recorded by Mrs. Kackley, but nothing was done by her to pay or secure the balance of the purchase price. The matter remained in this condition for about three months. In October, 1925, Mrs. Fleming became ill and was taken by Mrs. Kackley to the Blackiston place. The doctor who treated her said that it was some digestive trouble. He also said that she had a general weakness and arteriosclerosis. She recovered in about two weeks and went to her sister's at Lawrence. While she...