Carter v. Dilley

• Court: Missouri Supreme Court
• Writing for the Court: BRACE, P. J.
• Citation: Carter v. Dilley, 167 Mo. 564, 67 S.W. 232 (Mo. 1902)
• Decision Date: 12 March 1902
• Parties: CARTER et al., Appellants, v. DILLEY et al

67 S.W. 232

167 Mo. 564

CARTER et al., Appellants, v. DILLEY et al

Supreme Court of Missouri, First Division

March 12, 1902

Appeal from Daviess Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

Hamilton & Dudley and Eads & Pickle for appellants.

(1) Where the relation of confidence and trust exist between the grantor and grantee, and the grantor is weak and feeble of mind and body, slow to understand, easily persuaded and influenced, the deed must be held to be the result of undue influence and illegal. Ennis v. Burnham, 159 Mo 499. (2) The law imposes upon every person occupying a relation of confidence to another, who receives a gift from the latter, the burden of showing beyond a reasonable doubt the absolute fairness of the transaction, before it will permit the donee to retain the gift. Hall v Kappenberger, 97 Mo. 509; Ford v. Hennessy, 70 Mo. 580; Bradshaw v. Yates, 67 Mo. 221; Rankin v. Patten, 65 Mo. 378; Cadwallader v. West, 48 Mo. 483. (3) This is an action to set aside certain deeds. The court should have permitted the amendment setting up a failure of delivery of deeds. In courts of equity it is proper to amend the bill after evidence is taken so as to make it conform to the proof. The proposed amendment would not have changed the cause of action to set aside the deeds but would have only added another reason for setting them aside. Harlan v. Moore, 132 Mo. 483; Chiles v. Railroad, 117 Mo. 414; Pratt v. Walther, 42 Mo.App. 491. (4) The undue influence exercised in the making of a will is not a standard for testing that influence in the making of a contract between the living. Ennis v. Burnham, 159 Mo. 494; Martin v. Baker, 135 Mo. 495; Kirschner v. Kirschner, 113 Mo. 290. (5) If this was a gift causa mortis, the subject of the gift must actually be delivered in the lifetime of the grantor, or else it is void. Tyler v. Hall, 106 Mo. 313; Hay v. Hay, 65 Mo. 689; Stanford v. Stanford, 97 Mo. 231.

Thos. A. Gaines, Hicklin, Leopard & Hicklin and Harry K. Allen for respondents.

(1) The circuit court, in refusing to permit plaintiffs to amend their petition so as to allege non-delivery of deeds, exercised its discretion soundly. And further, the amendment would have probably changed the cause of action to the extent of the amendment at least, for had non-delivery of deeds been the sole ground for relief, a court of equity would probably not grant it, for the reason that one, if not two, adequate remedies at law would be open to plaintiffs, one being ejectment as the heirs of Henry Dilley, and the other under the statute as now amended, to quiet title (sec. 650, R. S. 1899). And still further, non-delivery of deeds was not conceded -- it was disputed, but as Barney Dilley to whom testimony of Meadows tended to show deeds were given after death of Henry Dilley, had been held incompetent as a witness by the court, it will not here be presumed that defendants were prepared to offer counter-testimony had the court refused to strike that part of Meadows' testimony from the record, it being offered after both sides had closed in chief. Section 657, Revised Statutes 1899, permitting amendments, so as to conform to proof can not be invoked where there is uncertainty or dispute as to the facts. (2) No relations of trust and confidence have been shown between Henry Dilley and the grantees in the deeds, whereby the burden is placed upon defendants, as is in Ennis v. Burnham, 159 Mo. 494, and that the distinction between a will and a deed, under the facts in this case, has no application. The case, then, turns on whether or not Henry Dilley had sufficient mental capacity to make the deeds, and whether or not undue influence operated to bring about the result. The true test as to capacity is whether Henry Dilley had sufficient reason to know and understand what he was doing when he made the deeds. Keithley v. Keithley, 85 Mo. 217; Cutler v. Zollinger, 117 Mo. 92; Moore v. Moore, 67 Mo. 192; Pennington v. Stanton, 125 Mo. 658; Benoist v. Murrin, 58 Mo. 307; Norton v. Paxton, 110 Mo. 456; Harvey v. Sullens, 56 Mo. 372; English v. Porter, 109 Ill. 285. The burden of proving mental incapacity and undue influence rests on appellants. Taylor v. Wilburn, 20 Mo. 306; Rankin v. Rankin, 61 Mo. 295; Myers v. Hanger, 98 Mo. 433; Thompson v. Ish, 99 Mo. 160; Maddock v. Maddock, 114 Mo. 35; Priest v. Way, 87 Mo. 16; Cowee v. Cornell, 75 N.Y. 91. The exercise of undue influence must be such as to destroy the free agency of the grantor or testator. Thompson v. Ish, supra; Jackson v. Hardin, 83 Mo. 195; Norton v. Paxton, supra; Jarman on Wills (1 Am. Ed.), p. 133; Shepardson v. Potter, 18 N.W. 575; Mooney v. Olson, 22 Kan. 79; Cutler v. Zollinger, supra.

BRACE P. J. Valliant, J., absent.

OPINION

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 southwest quarter 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 east half of the southwest quarter and the northwest quarter of the southwest quarter 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, 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 July 9, 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 January 9, 1902. On December 7, 1901, a copy of the complete abstract, together with appellants' brief, was delivered to the respondents, and on December 27, 1901, ten copies thereof were filed with the clerk of this court. On January 3, 1902, the respondents delivered to the appellants their reply brief based on such abstract, and filed the same on January 8, 1902, and on January 9, 1902, filed their motion to dismiss the appeal for failure to comply with that part of rule 11, which requires ten copies of the abstract to be filed with the clerk thirty 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 thirty days before the day on which the case was set for hearing. That the ten 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 July 9, 1896, he was about sixty-nine years of age and was then residing on the 160-acre tract in question, which was his homestead, and which was incumbered by mortgage for about one thousand dollars. His family residing with him consisting of his wife Minerva, his two sons John A. and Willis B., and his two daughters Dora and Lissia. He was a farmer, had sometime 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 sons, as his own father seems to have done, saying that he intended to do so, and if all fathers would do likewise all the girls would have homes. He lived up to this idea. During his lifetime four of his daughters, America, Laura B., Mary and Sarah, married and left home, and to neither of them did he give any land. Three of his sons, Barney, Harvey and Charles R., also married and left home and thereupon to each of them he gave a tract of land. To Barney by deed he conveyed a 45-acre tract, to Harvey he deeded an 80-acre tract. ...