Bushman v. Barlow

• Decision Date: 11 February 1929
• Docket Number: No. 28016.,28016.
• Citation: 15 S.W.2d 329
• Parties: RUTH BUSHMAN ET AL., Appellants, v. ESTELLE PEPER BARLOW ET AL.
• Court: Missouri Supreme Court

15 S.W.2d 329

RUTH BUSHMAN ET AL., Appellants, v. ESTELLE PEPER BARLOW ET AL.

No. 28016.

Supreme Court of Missouri, in Banc.

February 11, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

AFFIRMED.

N. Murry Edwards and McLaran & Garesche for appellants.

(1) The opinion of this court in Bushman v. Bushman, 311 Mo. 511, involved the construction of certain portions of plaintiffs' first amended petition only in so far as the same were deemed necessary to be considered by the court in passing upon the propriety of the lower court's action in appointing a receiver. Plaintiffs' right to recover upon the proof of the allegations contained in their said petition, on a trial of the merits, was not involved. (2) The issues involved in the first count of plaintiffs' fourth amended petition have never been passed upon by this court and were not decided adversely by the trial court in sustaining defendants' demurrer on the basis of this court's decision in Bushman v. Bushman. 311 Mo. 551. (3) The issues involved in the second count of plaintiffs' fourth amended petition have never been passed upon by this court and were not decided adversely to plaintiffs, as held by the trial court in sustaining defendants' demurrer on the basis of this court's decision in Bushman v. Bushman, 311 Mo. 551. (4) Under a general demurrer to a petition, all inferences of fact that may fairly and reasonably be drawn therefrom must be taken as true. Martin v. Ray Coal Co., 288 Mo. 241. (5) In considering a demurrer, matters charged in the petition are considered as true. Baldridge v. Ryan, 260 S.W. 536. (6) A demurrer to a petition admits allegations of fact therein. State ex rel. Consolidated School Dist. v. Lee, 303 Mo. 641. (7) Both counts of plaintiffs' fourth amended petition are grounded upon fraud, mental incapacity and undue influence arising out of a fiduciary business relationship as shown by the allegations of the petition and admitted to be true by the demurrer. The matters and facts constituting the fraud, mental incapacity, undue influence and confidential business relationship have been pleaded in detail. Upon the proof of same plaintiffs are entitled to the relief prayed for. (8) One who acquires land or other property by fraud, misrepresentation, imposition, concealment, or under any other such circumstances as renders it inequitable for him to retain it, is in equity regarded as the trustee of the party who suffers by reason of the fraud or other wrong and who is equitably entitled to the property. 39 Ency. Law & Proc. 172, par. 6. (9) A constructive trust may result where one who acquires property at a judicial sale under such circumstances or state of facts as would make it a fraud to permit him to hold on to his bargain by representing that he is buying for the benefit of those who owned or have an interest in the property being sold, or that he intends to reconvey such property and thereby obtains it at a sacrifice. The court will relieve against such fraud, and the person who gains such an advantage by means of such fraudulent acts will be converted into a trustee for those who have been injured thereby. 39 Ency. Law & Proc. 176, par. B. (10) When a confidential or fiduciary relationship is established (and for the purpose of this case it is admitted by the demurrer) the law presumes undue influence and casts the burden of proof on the defendant. Canty v. Halpin, 242 S.W. 102.

Harry H. Haeussler, Foristel, Mudd, Blair & Habenicht and Charles J. Macauley for respondent.

(1) Neither of the counts in plaintiffs' fourth amended petition states facts sufficient to constitute a cause of action. Bushman v. Bushman, 311 Mo. 551. (2) A demurrer admits only such facts as are well pleaded. It does not admit facts not well pleaded, or the soundness of mere conclusions of law, or the mere conclusion of the pleader upon the facts constitutive of his cause of action, or mere argumentative matter. Stonemets v. Head, 248 Mo. 254; Knapp-Stout & Co. v. St. Louis, 156 Mo. 343; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 397. (3) A petition in an action grounded on fraud must state facts constituting fraud. A mere allegation that the acts complained of were fraudulently done is not sufficient. The allegations in plaintiffs' fourth amended petition were not sufficient to charge respondent with fraud in obtaining the deeds or judgment referred to in said petition. Bushman v. Bushman, 311 Mo. 574. (4) A petition in an action based on undue influence must state facts constituting undue influence. The statement that the execution of a deed was obtained by "undue influence" is a statement of conclusion, and not sufficient to charge undue influence. (5) "The relation of parent and child is per se a confidential relation, but it is always presumed prima-facie, that in all transactions between them, the parent is the dominant party and that they are free from undue influence." Hassell v. Hassell, 201 Ala. 191; Bushman v. Barlow, 316 Mo. 916. (6) "The fact of the relationship of parent and child does not where the parent is the grantor and the child the grantee raise any presumption of undue influence." Smith v. Kapitzke, 254 Ill. 498; Bushman v. Barlow, 311 Mo. 576. (7) It appears from the allegations in the first count of plaintiffs' fourth amended petition that Caroline J. Peper was a party defendant in the partition suit, instituted by the St. Louis Union Trust Co. et al. v. Caroline J. Peper et al., in the St. Louis Circuit Court, to partition the land described in the first count of said petition. And it further appears from the allegations in said first count of said petition that the circuit court in that case passed on the question of the validity of the deed from Caroline J. Peper to this respondent, dated January 14, 1911, and held it valid, and that respondent by the terms of that deed acquired an undivided eleven-sixtieths interest in the property in question in this case. So that the question of the validity of that deed was at the time of the institution of this suit res judicata, and it so appears from the allegations in plaintiffs' petition. Bushman v. Bushman, 311 Mo. 568. (8) If plaintiffs are in this case seeking to set aside the judgment in the partition suit on the ground of fraud, they must allege in their petition facts to show that fraud was practiced in the very act of obtaining the judgment. The allegations in plaintiffs' said petition do not meet the measure of a charge of fraud; nor are they sufficient to entitle them to have the decree in the partition case referred to by them set aside. Hamilton v. McLain, 139 Mo. 678; Bushman v. Bushman, 311 Mo. 574. (9) An heir has no better title to land than his ancestor had at the time of his death, and in attacking a deed made by the ancestor in his lifetime the heir stands in the ancestor's shoes. Coulson v. Coulson, 180 Mo. 709; Bushman v. Bushman, 311 Mo. 574. (10) It makes little difference now, since the validity of the will of Caroline J. Peper has been established, whether the decision of the circuit court in sustaining respondent's demurrer to plaintiffs' fourth amended petition was right or erroneous, for plaintiffs having no title on which to base the suit, it is now a mere moot case, and should be dismissed. State ex rel. v. Imel, 243 Mo. 174; Fugel v. Becker, 2 S.W. (2d) 746; Pickel v. Pickel, 259 Mo. 205; State ex rel. v. Westhues, 269 S.W. 379; State ex rel. v. Thomas, 249 Mo. 108. (11) It appears from appellants' abstract filed in this cause that there were two defendants, respondent, and Christian Peper, a minor. And it appears from the judgment that it affects only one of the defendants, respondent. No judgment was entered in the case affecting the rights of the minor defendant or disposing of the case as to him. The appeal not being from a final judgment in the case it should be dismissed. Karabacek v. Richards, 249 Mo. 612; Rock Island Imp. Co. v. Marr, 168 Mo. 256; Secs. 1521, 1528, 1469, R.S. 1919.

WALKER, J.

This is a suit to set aside certain deeds made by Caroline J. Peper, long since deceased, to Estelle Peper Bushman Barlow, and for the appointment of a receiver. It was originally brought in the names of Christian Peper Bushman and his wife, Anna Bushman, as plaintiffs, against Estelle Peper Bushman Barlow and Christian Peper, a minor, as defendants.

Christian Peper Bushman and Estelle Peper Bushman Barlow are brother and sister of the full blood, Christian Peper is their nephew and the son of a deceased brother. The brother and sister are the children of Caroline J. Peper, and the minor defendant is her grandson. Caroline J. Peper in her young womanhood married one F.W. Bushman. Later she divorced him, and it was decreed that she should resume her maiden name of Peper. The first named plaintiff and defendant in this suit, are the offspring of this marriage, as was the father, now deceased, of the minor defendant, who chose to be known by his mother's maiden name. Estelle Peper Bushman, before this suit was filed, married one Stephen H. Barlow. On January 15, 1926, the death of the plaintiff, Christian Peper Bushman, having been suggested in the formal manner required by our procedure, this suit was revived in the name of Ruth Bushman, his daughter of lawful age, and in that of Anna Bushman, his widow, as curatrix of their minor son, Frederick Peper Bushman, and as administratrix of the estate of her husband, the deceased Christian Peper Bushman, and it was ordered that they be made parties plaintiff.

This is the fourth amended petition filed in this case. The former petitions were held insufficient on demurrers.

At the time of the sustaining of the demurrer to the third amended petition the defendant, Estelle Peper Bushman, by motion directed the court's attention to the fact that the petition then filed and held by the court to be insufficient was the plaintiffs' third amended petition and...