Brown v. Fickle
| Decision Date | 07 October 1896 |
| Citation | 37 S.W. 107,135 Mo. 405 |
| Parties | Brown et al. v. Fickle et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. W. S. Herndon, Judge.
Reversed.
N. B Anderson and George W. Day for appellants.
(1) While the reviewing court will defer somewhat to the findings of the trial court, it will not be concluded by them, but will review the whole case, and when proper, reverse. Benne v. Schnecko, 100 Mo. 250, where the principles governing the supervising control of the supreme court over the findings of the trial court are lucidly set forth. McElroy v. Maxwell, 101 Mo. 295. (2) While courts of equity do not restrict themselves to the same rigid rules as courts of law do in the investigation of fraud, yet it is equally a rule in courts of law and courts of equity that fraud is not to be presumed, but it must be established by proofs. 1 Story's Eq. Jur. [Bigelow's Ed.] 202. And while courts of equity may deduce fraud from circumstances affording strong presumption, yet it is submitted that the true rule is, as stated by Bigelow, not that a chancellor may find fraud on less evidence than a jury could in the same case, but that such evidence should be required by all courts as to overcome the presumption of innocence. Marksbury v Taylor, 10 Bush, 519. (3) The evidence of fraud should be clear and convincing. Bryan v. Hitchcock, 43 Mo 527; Lavasser v. Washburn, 80 Wis. 200; Torrance v. Bolton, L. R. 8 Ch. 118. (4) It is a well established rule that the law will presume in favor of honesty and against fraud. Broom's Legal Maxims [8 Ed.], 947. The burden of proof is upon the plaintiff who seeks a cancellation of the deed. Taylor v. Crockett, 123 Mo. 300. (5) No evidence was offered by the plaintiffs to show that Matthias Fickle ever misrepresented to his mother the nature or the extent of her title to the land. (6) Where the evidence in a case only tends to cast suspicion on a transaction, or if it is as consistent with an honest as with a dishonest purpose, the finding must be against the alleged fraud. Ridge v. Greenwald, 53 Mo.App. 479.
Wilson & Wilson and J. W. Coburn for respondents.
(1) Even if it was error to admit the testimony of Joel Brink, it was immaterial error, as the same statement made by him was also made by numerous other witnesses and never contradicted. But it was not error as he was a substantial party to the suit, as he had one child living by his wife Armilda Brink, one of the children of Aurena Fickle, the patentee of the land in controversy, and at the date of the suit and trial had a curtesy in the land. A husband is a competent witness in litigation involving title to his wife's general property to which he is made a party. McKee v. Spiro, 107 Mo. 452; Brownlee v. Fenwick, 103 Mo. 420. (2) Defendant was not a competent witness as he was a party to the deed made by Wyley Brown and his wife Aurena Brown. The rule that where two parties make a contract with a third party and one of the first parties dies the third party is a competent witness does not apply here since Mrs. Aurena Brown, the substantial party to the contract, was dead. Messimer v. McCray, 113 Mo. 382; Nugent v. Curran, 77 Mo. 323. (3) There seems, at first, to have been a mistake among all the parties as to their interests in the land. Defendant supposed he and his two sisters and mother had an undivided fourth each in the land and bought out the interests of his two sisters, after which he evidently discovered that his mother owned it all, and then leaving her laboring under the mistake he got her to sell him her supposed interest of one fourth and in the deed from her, which he had drawn up, he fraudulently inserted the whole one hundred acres instead of the twenty-five acres which he told her she was conveying. (4) The deed should be set aside whether obtained through mistake or fraud. Summers v. Coleman, 80 Mo. 488; Sayer v. Devore, 99 Mo. 437.
In the year 1838 Matthias Fickle, the father of the defendant Matthias Fickle, purchased the preemption right of one Case to the southwest quarter of section number nine (9), township 51, range 34, in Platte county, Missouri, and moved upon the same, and cleared and improved a portion thereof, but died before he obtained a patent thereto. At his death he left surviving him his widow, Aurena Fickle, and two daughters, Frances and Amanda, and some months after his death a posthumous son, Matthias, the defendant, was born.
Because of outstanding debts due the estate, which she was unable to collect, his widow sold sixty acres of the land to David Gregg for $ 200 and with this money completed the payment to the government of the United States and received a patent to herself and her heirs for the whole quarter section, on the first day of May, 1846. Soon thereafter she conveyed the sixty acres to Gregg, leaving her the one hundred acres which is the bone of contention in this case.
About four years after the death of her husband, Mrs. Aurena Fickle married Wyley Brown, one of the plaintiffs and respondents herein. Of this last marriage there were born four other children, three daughters and a son, who are also plaintiffs herein. After this last marriage Mrs. Brown and her husband and the Fickle children continued to reside as one family on the one hundred acres, and after the birth of the Brown children they also were reared on the same place.
The evidence tends strongly to prove that Wyley Brown was a poor manager, and was very intemperate in his habits, and the burden of rearing the family largely fell upon his wife and the children. The farm was in the hills and yielded a scant return. Matthias Fickle, the defendant, under these adverse circumstances, developed a character for thrift and industry and the strictest integrity.
About the year 1878 Wyley Brown declared the farm was too poor to support his family, and moved to Kansas.
Young Matthias Fickle having come to the estate of a man, married and leased the old homestead from his mother. From time to time Mrs. Brown visited her son and other relatives in Platte county. In the years 1872 and 1874, Matthias Fickle bought the expectancies of his two sisters of the whole blood in the hundred acres and gave each of them $ 200 therefor, and in 1885, his mother and his stepfather Brown made him a deed to the one hundred acres.
The purpose and object of this suit is to set aside this deed from his mother to him, on the ground that it was obtained by fraud. It is averred that Mrs. Fickle, who obtained the patent to this land, was informed, and, by mistake believed, that the patent conveyed the land to her and her bodily heirs, by her first husband begotten, and that she only had a child's part therein, and she did not know what estate she was conveying to her son by her deed in which her second husband Brown joined her, and that her son taking advantage of her ignorance fraudulently represented to her and her husband that her interest in the land was only a child's part of twenty-five acres, and thus procured their consent to deed it to him and then fraudulently inserted in the deed the whole hundred acres, whereas they thought they were only conveying twenty-five acres, or a child's part.
I. Upon appeals from the decrees of the circuit court in chancery cases, this court is not bound by the findings of the circuit court. When the finding of the circuit court is predicated principally upon the oral testimony of witnesses before it, we have generally deferred to its findings, but it was pointed out by Judge Sherwood in Benne v. Schnecko, that our practice in this regard did not mean that we had abdicated our supervisory control over questions of fact in equity causes, but only meant that when there is a conflict of testimony or where the testimony was evenly balanced and the finding therein seemed to be correct we would so far defer to the chancellor's judgment as to affirm it, but our reports contain many decisions in which we have reviewed the findings of the chancellor and reversed his decrees. Benne v. Schnecko, 100 Mo. 250, 13 S.W. 82; McElroy v. Maxwell, 101 Mo. 294, 14 S.W. 1; Hamilton v. Armstrong, 120 Mo. 597, 25 S.W. 545.
In this case we have fully read every line and word of the evidence, and have been forced to the conclusion that the learned circuit judge erred in setting aside defendants' deed to the land in controversy. A court of equity has power to set aside a deed for fraud, or when obtained by undue influence, but in so doing they do not act arbitrarily, but base their decrees upon proofs made and according to well defined principles. The burden is upon the plaintiffs in this case to establish fraud, and the fraud which they have charged in their bill.
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