Canty v. Halpin

• Decision Date: 22 May 1922
• Citation: 242 S.W. 97,294 Mo. 118
• Parties: JOSEPH CANTY et al. v. CATHERINE HALPIN et al., Appellants
• Court: Missouri Supreme Court

242 S.W. 97

294 Mo. 118

JOSEPH CANTY et al. v. CATHERINE HALPIN et al., Appellants

Supreme Court of Missouri

May 22, 1922

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Reversed and remanded (with directions).

Marshall & Henderson for appellant.

(1) The petition alleges that the deeds were never delivered to defendants. The answer denies this. The plaintiffs introduced no evidence whatever that the deeds were not delivered, but relied upon the proposition that the burden of proof was on defendants to show delivery, basing that contention on the ground that the defendants knew and the plaintiffs did not know whether or not they had been delivered. A deed must be delivered to become effective. The plaintiffs themselves make out a sufficient prima-facie case that the deeds were delivered to the defendants. (2) The grantor was the mother of the defendants. The property conveyed was a gift. The consideration was love and affection. Nothing more was necessary. (3) There is no substantial evidence of incompetency in the case. (4) The plaintiffs failed absolutely to show a single instance of the undue influence of the defendants over their mother. They admitted that they could not specify a single act of undue influence. They say however, that undue influence is of such a sinister character that it cannot be proved by direct evidence, but may be shown by circumstances. The circumstances they rely on are: (a) That Julia wrote the body of the checks, which her mother signed to pay bills; (b) that Julia made out the deposit tickets and deposited the money in the bank for her mother (c) that when complaints from tenants about repairs came in Julia answered the phone, and after consulting her mother gave orders what to do. This is the sum of Julia's undue influence as shown by the evidence. The evidence also shows that when Julia was in Denver with Isabel for ten months, and when Julia was in the hospital for three weeks, and when Julia was not in the house, Kate or Isabel did the same things for their mother. It is too absurd to admit of serious argument that any of these matters, or all of them combined, are any evidence whatever of undue influence. Thompson v. Ish, 99 Mo. 182; Brinkman v. Rueggestick, 71 Mo. 553; Jackson v. Harbin, 83 Mo. 78; Meyers v. Hauger, 98 Mo. 433; Doherty v. Gilmore, 136 Mo. 414; McFadden v. Catron, 138 Mo. 218; Berberet v. Berberet, 131 Mo. 410; Cash v. Lust, 142 Mo. 630; Riley v. Sherwood, 144 Mo. 366; Defoe v. Defoe, 144 Mo. 458; Aylward v. Briggs, 145 Mo. 604; Sehr v. Lindemann, 153 Mo. 276; Tibbe v. Kamp, 154 Mo. 545; Gordon v. Burris, 153 Mo. 223; Martin v. Bowden, 158 Mo. 352; Wood v. Carpenter, 166 Mo. 465; Fitzpatrick v. Weber, 168 Mo. 562; Hayes v. Hayes, 242 Mo. 169; Winn v. Grier, 217 Mo. 459; Teckenbrock v. McLaughlin, 209 Mo. 533; Maddox v. Maddox, 114 Mo. 46; Sanford v. Holland, 276 Mo. 470; Spurr v. Spurr, 226 S.W. 39; Hern v. Dysart, 220 S.W. 910; Land v. Adams, 229 S.W. 158. The undue influence must be actually exercised at the time the will or deed was executed. Brinkman v. Rueggestick, 71 Mo. 553. The law looks with great favor upon the performance of filial duties. Turner v. Butler, 233 Mo. 202; Goodman v. Griffith, 238 Mo. 706; Land v. Adams, 229 S.W. 158. An advantage by gifts obtained solely through loving sacrifices and devoted service of a child to her mother do not constitute undue influence. Andrews v. Linebaugh, 260 Mo. 623; Hayes v. Hayes, 242 Mo. 155. The fact that a parent does not divide his property equally among his children does not show undue influence, nor is it any proof of a confidential relation. Fitzgerald v. Weber, 168 Mo. 562; McFarland v. Brown, 193 S.W. 800; Bennett v. Ward, 272 Mo. 671. (5) Mr. and Mrs. Dempsey were both competent witnesses. A communication between an attorney and a client is not confidential when a third person, who is not interested, is present, and both the attorney and the third person are competent witnesses in the case. Mrs. Dempsey had no connection whatever with her husband's business, and was as much a third person as a stranger would have been. She was present at the direction of Mrs. Halpin, and this breaks the seal of secrecy between an attorney and client. 40 Cyc. 2377; Tyler v. Hall, 106 Mo. 313; Weinstein v. Reid, 25 Mo.App. 41; Goddard v. Gardner, 28 Conn. 172; State v. Perry, 4 Idaho, 224; Hoy v. Morris, 79 Mass. 719; Walker v. State, 19 Tex.App. 176; Kissack v. Burke, 132 Ill.App. 360; Champion v. McCarthy, 28 Ill. 87; Thompson v. Cashman, 181 Mass. 26; Jackson v. French, 2 Wendell, 337; Blount v. Kimpton, 155 Mass. 251; Mueller v. Batcheller, 131 Iowa 650; DeWolf v. Strader, 25 Ill. 225; Smith v. Long, 106 Ill. 485; Mobile Railroad v. Yeates, 67 Ala. 164; Matter of Eckler, 126 N.Y. 204; Martin v. Smith, 44 S.W. 683. (6) Plaintiff's petition does not state facts sufficient to constitute a cause of action against defendants. This is a proceeding in equity by plaintiffs claiming, in their petition, the legal title to land, and, being out of possession, to remove a cloud on such title. It is settled law in this State that this cannot be done. Davis v. Sloan, 95 Mo. 553; Graves v. Ewart, 99 Mo. 18; Keane v. Kyne, 66 Mo. 216; Sneathen v. Sneathen, 104 Mo. 206; McRee v. Gardner, 131 Mo. 606; Mason v. Black, 87 Mo. 329. (7) The court erred in admitting the record of the will contest and instructions of the court for the purpose of showing that it was "res adjudicata" on the questions of undue influence in procuring these deeds in this case, and that a confidential relation existed in January, 1914, and would be presumed to continue and be present on November 30, 1917.

Glendy B. Arnold for respondent.

(1) Fraud in procuring deeds is presumed from the existence of a fiduciary relationship between grantor and grantee. McClure v. Lewis, 72 Mo. 314; Leavitt v. LaForce, 71 Mo. 353; Martin v. Baker, 135 Mo. 495; Cadwallader v. West, 48 Mo. 483, 494; Dingman v. Romine, 141 Mo. 466; Cornet v. Cornet, 248 Mo. 184, 234; Ryan v. Ryan, 174 Mo. 279; Jones v. Belshe, 238 Mo. 524. (2) Where the right to equitable relief is shown to turn upon the credibility of the witnesses, this court will defer to the judgment of the trial court, and where there is evidence to sustain the decree it will be affirmed. Sinnett v. iSnnett, 201 S.W. 887. (3) Kate's deeds are tarred with the same stick that spoils Julia's. "A court of equity will set a deed aside for undue influence exercised over the grantor by a third person, the same as if it were exercised by the beneficiary in the deed. The latter takes its subject to the taint of improper influence." Ranken v. Patton, 65 Mo. 378; Miller v. Simonds, 72 Mo. 669, 687. (4) The deeds themselves raise the presumption that they were obtained by fraud. Martin v. Baker, 135 Mo. 495, 504. (5) To make a deed effectual it must be delivered to the grantee or to some one for him, so that it has passed out of the control of the grantor. Peters v. Burkemeier, 184 Mo. 393. (6) Signing, acknowledging and recording of a deed does not prove delivery. Peters v. Burkmeier, 184 Mo. 393. (7) A confidential relationship between Mrs. Halpin and the defendants having been established, the burden is upon them to prove a delivery of the deeds. Cases under Point 1. (8) Knowledge of delivery being shown in this case to have been exclusively in the possession of the defendants, the burden was on them to prove the negative averment in the bill that the deeds were not delivered. Fulweider v. Gas Company, 216 Mo. 582; Swinhart v. Railroad, 207 Mo. 434. (9) The verdict and judgment in the will case were final, though an appeal was pending, and the record in that case is available as evidence in the present case to establish, at the time the will was made, the possession of undue influence by Julia Halpin over her mother, the existence of a fiduciary relationship and a design to cheat and defraud the plaintiffs of their patrimony. R. S. 1919, sec. 526; Rodney v. Gibbs, 184 Mo. 1; Vantine v. Butler, 250 Mo. 445; State ex rel. v. Center Creek Mining Co., 262 Mo. 440. (10) The invalidity of the will turned upon a decision of the issue of undue influence. "A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided." Chouteau v. Gibson, 76 Mo. 38, 47. (11) Identity of subject-matter is not essential unless the former judgment is offered as a bar. "A point which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be again drawn in question in any future action between the same parties or their privies, whether the causes in the two suits were the same or not." Roth Tool Co. v. Spring Co., 146 Mo.App. 1. (12) When a status or a design is once shown to exist, the law presumes that it continues until the contrary is made manifest by proof. Nelson v. Jones, 245 Mo. 579, 591; 1 Wigmore on Evidence, sec. 102. (13) There was no error in admitting in evidence the record in the will case, because the defendants set up that record in their amended answer as matter of defense. (14) There was no error in permitting Mary Canty and Jennie Boeckmann to testify that their mother told them that if they would make her a deed to John's property she would see that they got their share of her estate at her death. Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 160; Bush v. Bush, 87 Mo. 480; Crowson v. Crowson, 172 Mo. 691. The court below had jurisdiction to cancel the deeds in question. Peters v. Berkemeier, 184 Mo. 393.

REEVES...