Bybee v. Renco

• Decision Date: 16 February 1927
• Docket Number: 25482
• Citation: 291 S.W. 459,316 Mo. 517
• Parties: Florence Bybee v. Sigmund S'Renco and Ray Angel, Appellants
• Court: Missouri Supreme Court

291 S.W. 459

316 Mo. 517

Florence Bybee v. Sigmund S'Renco and Ray Angel, Appellants

No. 25482

Supreme Court of Missouri

February 16, 1927

Motion for Rehearing Denied February 16, 1927.

Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.

Affirmed.

Carl M. Dubinsky and Hyman G. Stein for appellants.

(1) Defendant S'Renco at no time during the negotiations concerning the real estate in controversy occupied a fiduciary relationship towards the plaintiff; certainly he was not acting as her attorney or occupying a fiduciary relationship towards her at or about the time the warranty deed plaintiff seeks to have canceled was executed. Ryan v. Ryan, 174 Mo. 279. (2) There was no evidence to warrant or justify the court's finding that the warranty deed in controversy was obtained by false and fraudulent representations and without consideration. The only evidence attacking the validity of the deed was plaintiff's denial that she had signed or executed the same. To set aside a deed for fraud the fraud must be established by evidence going beyond a mere preponderance of the testimony and removing all reasonable doubt. Weissenfelds v. Cable, 208 Mo 515; Groff v. Longsdon, 239 S.W. 1087; Nichols v. Wimer, 230 S.W. 343. (3) The encumbrances and indebtedness on the real estate in controversy were greater than the value plaintiff's evidence placed on it, and plaintiff therefore could have suffered no injury by executing the deed complained of to defendant Ray Angel, and equity therefore will not interfere. Anderson v Taylor, 227 S.W. 84. (4) Even though it be held that the warranty deed plaintiff seeks to have canceled should be canceled and set aside, certainly this case is one that calls for the application of the maxim that "he who seeks equity must do equity," and also for the rule that "rescission looks to the establishment of the status quo;" and as a condition to cancellation of the warranty deed, the decree should have placed the parties in statu quo, and defendants or defendant Ray Angel should have been allowed a judgment for the moneys expended by her in protecting title to the real estate, and in reducing the indebtedness thereon, and in paying interest on the deeds of trust, and in maintaining and repairing the property, and in paying taxes thereon, and also payment of the unpaid notes secured by the second deed of trust (which were canceled by defendants in consideration of the execution of the warranty deed), together with interest thereon, should have been ordered, and a lien on said real estate should have been granted and declared in favor of defendants or defendant Ray Angel, to the extent of said items. Groff v. Longsdon, 239 S.W. 1086; Whelan v. Reilly, 61 Mo. 569; Kline v. Vogel, 90 Mo. 239; Johnson v. Railroad, 227 Mo. 423; First Methodist Church v. Berryman, 303 Mo. 475; Frazier v. Cook, 204 S.W. 392; Robinson v. Siple, 129 Mo. 208; 9 C. J. 1209. (5) The warranty deed which plaintiff here attacks was executed on March 20, 1920, and thereafter plaintiff abandoned the property in controversy and did not file this suit until May 23, 1922. By delaying her action for such a long period of time plaintiff was guilty of laches and will be deemed to have ratified the warranty deed, and also such a long lapse of time indicates strongly that plaintiff's claim of fraud is unfounded and untrue.

J. E. Turner and Louis Hudson for respondent.

Where the findings are manifestly for the right party, technical errors will not work reversal. R. S. 1919, secs. 1276, 1513, 1550, 1551; Burns v. City of Liberty, 131 Mo. 372; Barkley v. Cemetery Assn., 153 Mo. 300; King v. King, 155 Mo. 406; Hunters v. Bank, 158 Mo. 262; Redman v. Adams, 165 Mo. 60; Kansas City v. Block, 175 Mo. 433; Hamilton v. Crow, 175 Mo. 634; Cass v. Ins. Co., 188 Mo. 1; Walker v. Railways, 193 Mo. 453; Peterson v. Transit Co., 199 Mo. 321; Wagner v. Edison Elec. Co., 82 Mo.App. 287; Nulle v. Lange, 84 Mo.App. 219; State ex rel. v. Stone, 111 Mo.App. 364; Nagel v. Ry. Co., 169 Mo.App. 284; McManama v. Ry. Co., 175 Mo.App. 43; Perry v. Van Matre, 176 Mo.App. 100; Moines v. Railway, 184 Mo.App. 106; Kretzer Real Estate Co. v. Cusack Co., 196 Mo.App. 596.

Otto, J. All concur, except Graves, J., absent.

OPINION

OTTO

This is a suit in equity brought by the plaintiff to set aside a deed executed by her in March, 1920, to certain real estate in St. Louis County. The grounds upon which plaintiff seeks to set aside said deed are that at the time said deed was executed and long prior thereto the defendant Sigmund S'Renco was her attorney and occupied a fiduciary relation to her; further that plaintiff received no consideration for the execution of said deed, and that she was induced to execute the same by reason of her confidence in her attorney, as aforesaid, and by his false representations and deceitful conduct toward her.

The separate answers of the defendants deny each and every allegation in the petition. They further allege that the defendant Ray Angel, who was shown to be the sister-in-law of the defendant S'Renco, was the real purchaser of the real estate from the plaintiff, and that the sale was not one from client to attorney, but rather one from client to a stranger. The answers further allege that the sale of the property was free from any fraud or misrepresentations on the part of the defendants or either of them.

The facts out of which this lawsuit grows may be briefly stated as follows:

Prior to June 21, 1918, the plaintiff, Florence Bybee, was the wife of one Elmer Bybee and resided in the city of St. Louis. Sometime prior to June, 1918, the plaintiff employed the defendant, S'Renco, to institute a suit for divorce against her husband, Elmer Bybee. This suit was duly instituted and on June 21, 1918, a judgment was entered for the plaintiff. The defendant entered his voluntary appearance to the suit and prior to the date of the trial agreed upon a settlement of alimony in gross. This agreement was reduced to writing and filed with the court. By the terms of this agreement the defendant, Elmer Bybee, agreed to pay the plaintiff alimony in gross in the sum of $ 890 and also agreed to make certain monthly payments for the support of their minor children. Bybee also agreed to pay the defendant S'Renco's attorney's fees in the sum of $ 175. Bybee then paid both S'Renco and his wife by notes executed at the time and payable in monthly installments. It is admitted that S'Renco received full payment of his fee in the manner stated. Testimony for the plaintiff shows that S'Renco also received the notes representing the gross alimony due the plaintiff herein. It further shows that S'Renco never accounted to the plaintiff for any of said notes or the proceeds thereof. That he obtained them on the date of the divorce and retained possession of them at all times thereafter. That the plaintiff at different times requested S'Renco to surrender the notes to her, but that he failed and refused to do so. The evidence also shows that S'Renco negotiated and discounted these notes without authority from the plaintiff and kept and retained the proceeds thereof. When pressed by the plaintiff for a settlement S'Renco finally admitted that he had discounted the notes and had spent the money. The evidence shows that in order to satisfy plaintiff he then induced her to purchase through him, if not from him, a piece of property in St. Louis County, hereinbefore referred to, the legal title to which appeared to stand on the record in the name of the defendant Ray Angel. This deed was executed in January, 1919.

The undisputed evidence further shows that this property was worth at the time not to exceed $ 3,000. At the time defendant S'Renco induced the plaintiff to buy this property and caused the defendant Angel to execute a deed to the same to plaintiff, the property was mortgaged for $ 2500 and was encumbered by a lien for delinquent taxes covering a period of four years and amounting to some two or three hundred dollars. As a part of the consideration of the conveyance of the property to plaintiff the defendants further induced the plaintiff to execute a second mortgage on the property to the defendant Ray Angel to secure the payment of notes aggregating $ 1200. In addition to all of this plaintiff released her claim on the defendant S'Renco for the alimony notes converted by S'Renco as aforesaid; in short, the defendants induced the plaintiff to pay for this property an aggregate sum of something like $ 4,500 whereas the undisputed evidence shows it was worth not to exceed $ 3,000.

The evidence shows that the defendant S'Renco at all times exercised dominion and control over the real estate above mentioned; that he permitted the plaintiff to move into the property without the payment of rent and live there from August, 1918, until January, 1919; that he arranged for the sale of the property to the plaintiff; that he supervised the execution of all the papers and that the plaintiff did not at any time deal directly with the defendant Ray Angel.

The evidence further shows that the plaintiff occupied the property above described for sometime after January, 1919. In March, 1920, she was unable to meet the payments due upon the first and second mortgages, whereupon the defendant S'Renco, while still acting as the attorney, advisor and friend of the plaintiff, induced her to execute a deed re-conveying the property to the "straw" woman, Ray Angel. This deed was also made without any cash consideration, but upon the agreement that the defendant S'Renco would have the second mortgage canceled of record, which, the evidence shows, he did the following day.

The evidence further shows that the plaintiff is an uneducated woman and was and is...