Boatmen's Nat. Bank of St. Louis v. Wurdeman

• Citation: 127 S.W.2d 438,344 Mo. 573
• Decision Date: 20 April 1939
• Docket Number: 34955
• Parties: The Boatmen's National Bank of St. Louis, a Corporation, Administrator of the Estate of Hugh W. Thomasson, Appellant, v. G. A. Wurdeman and Richard Henry Stevens
• Court: United States State Supreme Court of Missouri

127 S.W.2d 438

344 Mo. 573

The Boatmen's National Bank of St. Louis, a Corporation, Administrator of the Estate of Hugh W. Thomasson, Appellant, v. G. A. Wurdeman and Richard Henry Stevens

No. 34955

Supreme Court of Missouri

April 20, 1939

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Reversed (with directions).

Edward C. Crow for appellant.

(1) The consideration for the note and mortgage given by Thomasson to Wurdeman was the voluntary dismissal by Wurdeman of the insanity proceeding pending against Thomasson. Such an agreement is contrary to public policy and void. State ex rel. Terry v. Holtcamp, 330 Mo. 608, 51 S.W.2d 13; State ex rel. Paxton v. Guinotte, 257 Mo. 1, 165 S.W. 718, 51 L. R. A. (N. S.) 1191; Hughes v. Jones, 116 N.Y. 67, 22 N.E. 446, 5 L. R. A. 632; 32 C. J. 627; Redenbaugh v. Young, 145 Mo. 274, 46 S.W. 959. (2) The consideration for the note and mortgage being contrary to public policy, they are void and should be canceled. 41 C. J 310. (3) The insanity suit was not instituted or prosecuted by Bolles and Wurdeman in good faith, in the belief that Thomasson was insane, but the fraudulent purpose of securing for Bolles part of Thomasson's property, in which she had no interest and to which she was not entitled, and the mortgages and trust deeds obtained from Thomasson for dismissing the insanity suit were obtained from him pursuant to said purpose and are, therefore, fraudulent and void. State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 227 S.W. 64; State ex rel. Terry v. Holtcamp, 330 Mo 608, 51 S.W.2d 13; State ex rel. Anderson v. Kirkland, 227 Mo.App. 643, 55 S.W.2d 697; Ex parte McLaughlin, 105 S.W.2d 1020. (4) The prosecution by Wurdeman of the insanity suit and obtaining a judgment therein that Thomasson was insane, without notice to him and in his absence, constituted duress upon Thomasson, and the mortgages and deeds of trust exacted by Bolles and Wurdeman as a condition of their dismissing the suit are void for duress. State ex rel. Terry v. Holtcamp, 330 Mo. 608, 51 S.W.2d 13; Miss. Valley Trust Co. v. Begley, 298 Mo. 684, 252 S.W. 76.

John A. Nolan for respondents.

(1) Even though Mrs. Bolles did not, in fact, have a legally enforceable claim against Thomasson, nevertheless, if she in good faith believed that, by virtue of her blood relationship to him and of her prior treatment of him, all of which had induced Thomasson to provide for her in his will, she had a right in good faith to press her claim, then she had a right to employ counsel for that purpose. The recognition by Thomasson of this right and his substitute agreement are, therefore, based upon a valid consideration as is the note in question executed in payment of the services of her attorneys. Stephens v. Spiers, 25 Mo. 386; Rinehart v. Betts, 82 Mo. 534; Rowlins v. Rowlins, 102 Mo. 563; Osborne v. Fredrich, 134 Mo.App. 449, 114 S.W. 1045. (2) The insanity proceeding in the probate court when appealed to the circuit court, were suspended or held in abeyance pending a trial de novo on the appeal. Thomasson was not deprived of any property by virtue of the invalid proceedings in the probate court. His counsel, Robert B. Denny (the appellant in that cause) controlled the situation. The dismissal of these proceedings, therefore, constituted no part of the consideration for the annuity contract with Mrs. Bolles. Moberly, etc., v. Powell, 86 S.W.2d 388.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant bank filed a suit to enjoin the sale of real estate under a deed of trust. A temporary injunction was sought, which was denied, and a sale was had. Thereafter appellant filed an amended petition seeking the cancellation of the trustee's deed, five notes and the deed of trust given to secure them. The trial court entered a judgment against appellant bank whereupon an appeal was taken.

Appellant plaintiff below, was the administrator of the estate of Hugh W. Thomasson, deceased. The respondents, defendants below were G. A. Wurdeman, owner of the notes and deed of trust in question, and the purchaser of the property at the sale, and Richard Henry Stevens, trustee in the deed of trust. The notes and deed of trust sought to be canceled were executed by Hugh W. Thomasson, and made payable to the law firm of Wurdeman, Stevens & Hoester. Appellant contends that the notes and deed of trust were void in their inception. The circumstances attending their execution, for the most part conceded, were as follows: Hugh W. Thomasson, a man of means, was more than seventy years of age at the time the notes and deed of trust were executed. That occurred on May 19, 1931. His nearest relations were second cousins. He had been living in the home of a cousin, a Mrs. Bolles who lived in St. Louis, Missouri, but left there sometime during the year 1930. Thomasson had executed a will wherein he had made some provision for Mrs. Bolles. That testament was being contested at the time this case was tried and withstood the assault made upon it. [See Townsend et al. v. Boatmen's Natl. Bank et al., 340 Mo. 550, 104 S.W.2d 657.] Mrs. Bolles and others believed that after Thomasson left the home of Mrs. Bolles he became infatuated with one Grace Mahood, who was referred to by some witnesses as an "adventuress" or "gold digger." Mrs. Bolles became alarmed that this woman would eventually obtain all of Thomasson's property. On January 25, 1931, a deed was filed for record whereby Thomasson had conveyed some property to Grace Mahood. It appears that Thomasson and Grace Mahood had married. That there was a valid marriage was not conceded by all parties, not even by Thomasson. A suit was filed on his behalf to annul the marriage. Reference to a number of lawsuits between Thomasson and his alleged wife were referred to in the case of State ex rel. v. Holtkamp, 330 Mo. 608, 51 S.W.2d 13, which case involved another insanity proceeding against Thomasson. Mrs. Bolles employed the firm of Wurdeman, Stevens & Hoester and an insanity proceeding was instituted on January 27, 1931, in the probate court of St. Louis County. No service of process could be had, or notice served upon Thomasson, because he could not be located within the county. Later, February 13, 1931, the proceeding was dismissed. On March 17, 1931, it was reinstated on the docket. S. C. Rogers, an attorney who had represented Thomasson in some legal matters, entered voluntary appearance for Thomasson and waived service of notice and jury. The case was heard immediately, Thomasson was adjudged insane and the court appointed a guardian over the person of Thomasson and his property. The record does not disclose that Thomasson had employed Rogers to represent him in the insanity proceedings, or that he authorized him to enter his appearance. The history of this proceeding and Rogers' explanation for entering an appearance will be found in State ex rel. v. Holtkamp, 330 Mo. 608, 51 S.W.2d 13, l. c. 15. Thereafter Robert B. Denny, an attorney, perfected an appeal from the judgment in the probate court to the circuit court. While this appeal was pending in the circuit court Denny, representing Thomasson, and Wurdeman, Stevens & Hoester, representing Mrs. Bolles, negotiated for a dismissal of the insanity proceeding. The outcome of these negotiations was that Thomasson executed an instrument, referred to as an annuity contract, whereby it was agreed that Mrs. Bolles should receive the sum of $ 100 per month during her life and $ 500 at her death. The will of Thomasson had provided for similar payments to Mrs. Bolles. In addition to this Thomasson executed two notes of $ 2500 each and some interest notes, also deeds of trust on property in St. Louis County to secure their payment. These notes were made payable to Wurdeman, Stevens & Hoester and were purported to be given as an attorney's fee in the insanity proceeding. This proceeding was then dismissed with the...