Carter v. Dilley

• Decision Date: 12 March 1902
• Citation: 67 S.W. 232,167 Mo. 564
• Parties: CARTER et al. v. DILLEY et al.
• Court: Missouri Supreme Court

67 S.W. 232

167 Mo. 564

CARTER et al. v. DILLEY et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

DEEDS — UNDUE INFLUENCE — PLEADING — AMENDMENTS — APPEAL.

1. Failure to file 10 copies of the abstract with the clerk of the supreme court 30 days before the cause was set for hearing, as required by rule 11 (31 S. W. v.), was not ground for dismissing an appeal, where respondents were furnished with a complete copy of the abstract more than 30 days before, together with appellant's brief, and replied in due course without making complaint.

2. In an action to set aside deeds given by a father to three of his sons, to the exclusion of his daughters, evidence examined, and held not to show that they were procured by undue influence.

3. Rev. St. 1899, § 657, authorizes amendments to pleadings before final judgment only in case the amendment will "not change substantially the claim or defense." Held that, in an action to set aside deeds for undue influence and mental incapacity, the petition could not be amended to set up want of delivery.

Appeal from circuit court, Daviess county; E. J. Broaddus, Judge.

Suit by America Carter and others against John A. Dilley and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Hamilton & Dudley and Eads & Pickell, for appellants. Thos. A. Gaines, Hicklin, Leopard & Hicklin, and Harry K. Allen, for respondents.

BRACE, P. J.

This is a suit in equity to set aside two deeds dated June 9, 1896, which the petition alleges were made and signed by Henry Dilley, deceased, and placed on record in the office of the recorder of deeds of Daviess county; one conveying the S. W. ¼ of section 21, township 61, range 29, in said county, containing 160 acres, to his sons John A. Dilley and Willis B. Dilley; the other conveying the E. ½ of the S. W. ¼ and the N. W. ¼ of the S. W. ¼ of section 20, township 61, range 29, in said county, containing 120 acres, to his son Charles R. Dilley, — on the grounds that the said Henry Dilley at said date was of unsound mind, and incapable of making an intelligent disposition of his property; that said deeds were without consideration; and that said Henry F. Dilley was unduly influenced and procured by said parties to make and sign said deeds for the purpose of preventing plaintiffs from inheriting any part of their father's said real estate. The said Henry Dilley died on the 9th day of July, 1896, leaving, him surviving, a widow and eleven children, — five sons and six daughters. The plaintiffs are three married daughters of said deceased, and the defendants are the five sons, the other three daughters, and the widow of said deceased. The trial court found the issues for the defendants, and from the judgment thereon in their favor the plaintiffs appeal.

1. This case was brought here on a copy of the judgment, in lieu of a complete abstract, and was set for hearing on the 9th of January, 1902. On the 7th of December, 1901, a copy of the complete abstract, together with appellants' brief, was delivered to the respondents, and on the 27th of December, 1901, 10 copies thereof were filed with the clerk of this court. On the 3d of January, 1902, the respondents delivered to the appellants their reply brief, based on such abstract, and filed the same on the 8th of January, 1902, and on the 9th of January, 1902, filed their motion to dismiss the appeal for failure to comply with that part of rule 11 (31 S. W. v.) which requires 10 copies of the abstract to be filed with the clerk 30 days before the cause is set for hearing. On that day the cause was, without argument, submitted on briefs, and this motion is now to be disposed of. It will be overruled. So much of the rule as was intended for the respondents' benefit was complied with. They received a complete copy of the abstract more than 30 days before the day on which the case was set for hearing. That the 10 copies were not filed with the clerk "in like time" worked no injury, or even inconvenience, to them. By replying in due course under the rule, and not making any complaint until the day the case was set for hearing, they must be held to have waived this mere technical failure, that in no way injuriously affected their interests.

2. The evidence tended to prove that when Henry Dilley died, on the 9th day of July, 1896, he was about 69 years of age, and was then residing on the 160-acre tract in question, which was his homestead, and which was incumbered by a mortgage for about $1,000. His family residing with him consisted of his wife, Minerva, his two sons, John A. and Willis B., and his two daughters, Dora and Lissia. He was a farmer, had some time been a soldier and school teacher, and seems to have been a man of affairs in his neighborhood, and to have been a man of good mind and strong will. He was not only the head of the family, but its dominant spirit. He seems to have had one notion somewhat antique and peculiar, and that was that the proper disposition for a father to make of his lands was to give them to his...