Cook v. Branine

• Decision Date: 30 June 1937
• Citation: 107 S.W.2d 28,341 Mo. 273
• Parties: Hale S. Cook v. Florence Cook Branine, Appellant
• Court: Missouri Supreme Court

107 S.W.2d 28

341 Mo. 273

Hale S. Cook v. Florence Cook Branine, Appellant

Supreme Court of Missouri

June 30, 1937

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge;

Affirmed.

Carlos W. Evans for appellant.

(1) The judgment and decree was against the evidence and the weight of the evidence. Shaw v. Butler, 78 S.W.2d 428; 2 Black on Rescission of Contracts & Cancellation of Written Instruments (2 Ed.), sec. 240, p. 684; Turner v Anderson, 236 Mo. 523, 139 S.W. 184; White v McGuffin, 246 S.W. 231; Elzea v. Dunn, 297 Mo. 690, 249 S.W. 937; Huffnagle v. Pauley, 219 S.W. 378; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1051; Munday v. Knox, 323 Mo. 411, 19 S.W.2d 499; Campbell v. Freeman, 206 Ill. 536, 130 N.E. 319; Parr v. Campbell, 109 Wash. 376, 186 P. 858; Martin v. Moore, 92 W.Va. 671, 115 S.E. 833; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 778; Clarke v. Skinner, 334 Mo. 1190, 70 S.W.2d 1097; 18 C. J. 234; 13 C. J. 397; Shaffer v. Shaffer, 190 S.W. 326; 4 Thompson on Real Property, secs. 3016, 3017, pp. 95, 96; Linneman v. Henry, 291 S.W. 112; Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 825; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 84; Jones v. Jefferson, 66 S.W.2d 555; Abernathy v. Hampe, 53 S.W.2d 1090; Daily v. Kastell, 56 Wis. 444, 14 N.W. 635. (2) The judgment indicates bias and prejudice on the part of the court in favor of the plaintiff and against the defendant. (3) The court erred in granting equitable relief to the plaintiff because the testimony in the record shows that the plaintiff was guilty of such fraud and embezzlement as to violate the equitable maxim of, "He who comes into court must come with clean hands." Jones v. Jefferson, 334 Mo. 606, 66 S.W.2d 560; Abernathy v. Hampe, 53 S.W.2d 1094.

Gossett, Ellis, Dietrich & Tyler for respondent.

The evidence overwhelmingly supports the judgment and decree rendered. The evidence of the presence and operation of undue influence, lack of consideration, betrayal by a sister of the trust and confidence of a brother mentally and physically ill, and duress, in the instant case, is on its face overwhelming. Analyzed, the testimony of both the respondent and the appellant yields significant assurances that the judgment and decree for the respondent were fully in accord with the evidence and the weight of the evidence and eminently justified. The record shows that the appellant acquired her brother's undivided one-fourth interest in these two valuable properties for a grossly inadequate, or no, consideration, and under circumstances that shock the conscience of a court of equity.

Frank, P. J. All concur, except Douglas, J., not voting because not a member of the court when cause was submitted.

OPINION

FRANK

Action by respondent, plaintiff below, to set aside two deeds executed by respondent to appellant, and to quiet the title to an undivided one-fourth interest in the real estate in question in respondent. The decree below was for respondent and the case is here on appeal.

Kate S. Cook died testate in Kansas City, Missouri, on November 11, 1928, leaving four children surviving, two sons and two daughters. By the terms of her will she devised her property to her children in four equal undivided shares, one-fourth to a son, Dr. Ward H. Cook, one-fourth to a daughter, Lydia Cook Smithmeyer, one-fourth to respondent, Hale S. Cook, and one-fourth in trust for the use and benefit of appellant, Florence Cook Branine, during her life and at her death to her children. Respondent, Hale S. Cook and the Fidelity National Bank were named in the will as trustees to administer said trust.

Two properties are involved in this action. One located at 3109-3111 Gillham Road in Kansas City, improved with a two-story brick building built for an auto sales agency and service department. The other property is located at the northwest corner of Twelfth and Forest Avenue in Kansas City. Deceased, during her lifetime, owned a $ 9000 note secured by a mortgage on this latter property. This $ 9000 mortgage note was a part of the assets of deceased's estate which was devised to the children by her will. After her death the mortgage securing the $ 9000 note was foreclosed. The property was purchased for the estate and by agreement of all parties title was taken in the name of appellant, Florence Cook Branine, with the understanding that the property belonged to the heirs of the estate. At the time appellant took title to the property she executed a deed thereto in blank to respondent.

Respondent, Hale S. Cook testified, in substance, as follows:

"I was executor of my mother's estate. After my father's death I looked after the properties and continued to do so after my mother's death until my health prevented it in the late fall of 1932. I was given power of attorney by sister Lydia and my brother Ward. I had my own interest and I was trustee for my sister Florence. I have been engaged in the real estate business in Kansas City about five years. When my health broke in 1932, my mental condition was terrible. I had suicidal tendencies. At this time my sister Florence was working for Dr. Cooper -- had charge of his outer office. She had been working for him for several years. I went to Dr. Cooper for treatment and became his patient. At that time I had no money and so told Dr. Cooper. He told me that he expected me to pay him when I got able, but if I did not earn the money I need not worry about it. The doctor never gave me a statement of my account.

"Both Dr. Cooper and my sister told me that in my condition I should have nothing to do with the management of the properties, but should leave that matter to Florence. My sister called me to Dr. Cooper's office and asked me to deed the Twelfth and Forest property to her, like it was before. I went over and prepared a deed, signed and acknowledged it and brought it back to her. She did not indicate to me that I was conveying the ownership of the property to her. As far as she said -- putting it back the way it was before; that she was looking after the family's property, and I understood it to mean that she was looking after it for the estate. She did not pay me anything for the property. She did not say anything about me owing her any money. She did not tell me that she had guaranteed any bill to Dr. Cooper. I never heard of such a claim until I read her deposition. She took everything out of my hands when I went as a patient to Dr. Cooper. My mind was in no condition to handle anything and she told me on several occasions that she was handling the property for me and would handle it for me. She gave me to understand that she was handling it for the estate. I made the deed to her on March 30, 1933, and she has never paid one cent for it. I brought the suit because she was claiming absolute title to both properties.

"I owned an undivided one-fourth interest in the other property known as Gillham Road property. On July 7, 1933, my sister called me to Dr. Cooper's office and asked me to deed my undivided one-fourth interest in this property to her. She had the deed already prepared and asked me to sign it. I told her I did not think I should do it -- that I owed my brother and my other sister some money and that I felt that they had a claim on this one-fourth interest over and above hers. She kept insisting. Dr. Cooper was in the office looking at me and listening to what I said. I was objecting to giving her title to the property and not protecting Ward and Lydia. She had not paid me any money. She mentioned how good she had been to me. She had never told me she expected to make a charge for being good to me. I understood Dr. Cooper was going to charge me if I was able to pay it. I was still refusing to sign the deed. I thought I should protect Ward and Lydia in the property. I hesitated to give the deed because at that time I knew that negotiations were under way for a new lease with the present tenant, and I did not have confidence in Florence's ideas in regard to that tenant. It seemed to me like she was driving them out of the building rather than make any effort to hold them as tenants.

"Dr. Cooper said to me that if I did not give my sister that deed he would be through with me forever, and his remarks led me to believe that my mind would suffer as it had suffered before if I left his treatments. He seemed rather threatening to me. I was frightened. My mind was not functioning when I went to Dr. Cooper. I wish I could recall the exact words. I do recall that he said he would be through with me, and I recall he said, 'When I am off of people they suffer.' As a result of that I said, 'All right. I will give it to you, Florence, but I want you to be careful.' She told me before this that if I would deed this property to her she would give it back to me at some future time. Knowing that she had said that, and believing that she was handling the affairs of my brother and other sister, I said, 'All right.' I would not have signed that deed except for what Dr. Cooper said to me. I was his patient at that time. He was giving me mental treatments. I tried to put myself entirely in his charge. I was recovering. I continued as his patient for a short time thereafter.

"When I asked her questions about the property she would advise with Dr. Cooper before answering me. Her relationship with Dr. Cooper seemed to me to be very close. I made a demand for the return of the property and she refused. She never paid me anything for this property, and made no claim that anything had been paid on my account for it. I never heard of such a claim until I read her deposition. I have been in the real estate business some five years, have handled some property in the vicinity of the Gillham Road property, and feel that I have an opinion as to the...