Deitz v. Deitz

Citation172 S.W.2d 866
Decision Date07 June 1943
Docket NumberNo. 37999.,37999.
PartiesALBERT DEITZ v. WILLIAM P. DEITZ, RUTH DEITZ, WILLIAM GROHNE, and FLORENCE GROHNE, Appellants.
CourtUnited States State Supreme Court of Missouri
172 S.W.2d 866
ALBERT DEITZ
v.
WILLIAM P. DEITZ, RUTH DEITZ, WILLIAM GROHNE, and FLORENCE GROHNE, Appellants.
No. 37999.
Supreme Court of Missouri.
Division Two, June 7, 1943.
Rehearing Denied, July 6, 1943.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

[172 S.W.2d 867]

REVERSED AND REMANDED (with directions).

Johnson, Lucas, Graves & Fane for appellants.

(1) This action to set aside and cancel a warranty deed is an equitable action, and, on appeal, this Court is required to consider the evidence and pass on the merits of the case. Franklin v. Moss, 101 S.W. (2d) 711; Reaves v. Pierce, 26 S.W. (2d) 611; Barron v. Wright-Dalton-Bell-Anchor Store Co., 237 S.W. 786; Ford v. Laughlin, 285 Mo. 533, 226 S.W. 911; Schulz v. Bowers, 223 S.W. 725; Hynds v. Hynds, 274 Mo. 123, 202 S.W. 387; State ex rel. v. Jarrott, 183 Mo. 204, 81 S.W. 879; Turner v. Overall, 172 Mo. 271, 72 S.W. 644. (2) A judgment, or decision, or determination by a judge prior to a hearing of all the evidence by both parties litigant is a deprivation of property without due process of law. Sec. 1, Art. 14, U.S. Constitution; Sec. 30, Art. 2, Mo. Constitution; Dartmouth College Case, 4 Wheat. 518, 4 L. Ed. 629; Ex parte Nelson, 251 Mo. 63, 157 S.W. 794; In re Clark, 208 Mo. 121, 106 S.W. 990; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, 68 S.W. 1043. (3) Mental capacity is established in so far as the deed is concerned if the grantor (plaintiff) had "sufficient mental capacity to understand the nature of the particular transaction, and with such understanding voluntarily entered into and consummated the same." Shaw v. Butler, 78 S.W. (2d) 420; Loehr v. Stark, 332 Mo. 131, 56 S.W. (2d) 772; Reaves v. Pierce, 26 S.W. (2d) 611; Messer v. Helfer, 278 Mo. 416, 212 S.W. 896; Masterson v. Sheahan, 186 S.W. 524; Ellis v. McNally, 177 S.W. 654; Jones v. Thomas, 208 Mo. 508, 117 S.W. 1177; Pennington v. Stanton, 125 Mo. 658, 28 S.W. 1067. (4) The agreement of the defendants to provide the plaintiff with a home in which to live for the remainder of plaintiff's life was ample consideration for the deed in question. Franklin v. Moss, 101 S.W. (2d) 711; Deer v. King, 30 S.W. (2d) 980; Reaves v. Pierce, 26 S.W. (2d) 611; Scott v. Scott, 324 Mo. 1055, 26 S.W. (2d) 598; Lee v. Lee, 258 Mo. 599, 167 S.W. 1030; Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726. (5) In fact, a conveyance reciting consideration of $1 and other valuable consideration is sufficient. "With this recital in the deed it is immaterial whether the consideration was inadequate merely, or entirely lacking in fact." Clark v. Skinner, 334 Mo. 1190, 70 S.W. (2d) 1094; Wells v. Kuhn, 221 S.W. 19; Masterson v. Sheahan, 186 S.W. 524; Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86; Holmes v. Fresh, 9 Mo. 201. (6) A promise though made without intention to fulfill is not a misrepresentation of an existing fact and hence not basis for cancellation or rescission of the deed. The plaintiff's remedy is for breach of covenant. Franklin v. Moss, 101 S.W. (2d) 711; Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815; Bryan v. Railroad, 292 Mo. 535, 238 S.W. 484; Younger v. Hoge, 211 Mo. 444, 111 S.W. 20; Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726; Missouri Loan & Inv. Co. v. Federal Trust Co., 175 Mo. App. 646, 158 S.W. 111. (7) In the absence of a relationship of trust and confidence between the parties or a superior knowledge of the law, a misrepresentation as to a matter of law does not constitute actionable fraud. Shaw v. Butler, 78 S.W. (2d) 420; Clark v. Skinner, 334 Mo. 1190, 70 S.W. (2d) 1094; Security Savs. Bank v. Kellems, 9 S.W. (2d) 967; Lee v. Lee, 258 Mo. 599, 167 S.W. 1030; Younger v. Hoge, 211 Mo. 444, 111 S.W. 20; Daily v. Jessup, 72 Mo. 144. (8) Plaintiff's failure to inquire about "inheritance taxes," at the time he consulted with his own attorney and had said attorney draft the deed in question, was a failure to exercise "ordinary prudence" and will prevent plaintiff from avoiding the deed on the ground of fraud. Weitzman v. Weitzman, 156 S.W. (2d) 906; Lewis v. Brookdale Land Co., 124 Mo. 672, 28 S.W. 324; Wade v. Ringo, 122 Mo. 322, 25 S.W. 901; Phelps v. Jones, 141 Mo. App. 223, 124 S.W. 1067; Champion Funding & Foundry Co. v. Haskett, 125 Mo. App. 516, 102 S.W. 1050; Davis v. Phoenix Ins. Co., 81 Mo. App. 264; 26 C.J. 1149, sec. 68.

Louis A. Laughlin for respondent.

(1) Rules of evidence applicable to this case. Wilkerson v. Wann, 16 S.W. (2d) 72; Franklin v. Moss, 101 S.W. (2d) 711; Hall v. Knappenburger, 97 Mo. 509, 11 S.W. 239, 10 Am. St. Rep. 357; Reaves v. Pierce, 26 S.W. (2d) 611; Shaw v. Butler, 78 S.W. (2d) 420; Fessenden v. Fessler, 332 Mo. 655, 60 S.W. (2d) 17; Manahan v. Manahan, 52 S.W. (2d) 825; Scott v. Hill, 330 Mo. 490, 50 S.W. (2d) 110; Norton v. Norton, 43 S.W. (2d) 1024; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50; Finley v. Williams, 325 Mo. 688, 70 S.W. (2d) 103; Keener v. Williams, 271 S.W. l.c. 496; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Major v. Putney, 293 S.W. l.c. 82; Tygard v. Falor, 163 Mo. 234; Spencer v. Barlow, 5 S.W. (2d) 28. (2) The failure of defendants to execute a written instrument giving plaintiff a home and fifty dollars a month gives plaintiff the right to rescind the contract and to have equitable aid to clear the title to his property. Mentzer v. Mentzer, 325 Mo. 941, 30 S.W. (2d) 146; Wilkerson v. Wann, 16 S.W. (2d) 72; Clarkson v. Creely, 40 Mo. 114; Cook v. Branine, 341 Mo. 273; Wilfong v. Johnson, 41 W. Va. 283, 23 S.E. 730; Green v. Batson, 71 Wis. 54, 36 N.W. 849, 5 Am. St. Rep. 194; Finley v. Williams, 29 S.W. (2d) 103, 325 Mo. 688. (3) Conveyances by aged parents to children for support are to be construed as conditions subsequent. Franklin v. Moss, 101 S.W. (2d) 711; 28 C.J., sec. 48; 12 R.C.L. 950, sec. 25; Halbert v. Halbert, 21 Mo. 277; Jeude v. Eiben, 89 S.W. (2d) 960; Finley v. Williams, 325 Mo. 688, 29 S.W. (2d) 103; Mentzer v. Mentzer, 325 Mo. 941, 30 S.W. (2d) 946; Donaldson v. Donaldson, 311 Mo. 208; 18 C.J. 169; Webster v. Adams, 137 N.E. 883; Huffman v. Rickets, 60 Ind. App. 526, 111 N.E. 322; Cree v. Sherfy, 138 Ind. 354, 37 N.E. 787; Ikerd v. Beavers, 106 Ind. 483, 7 N.E. 326; Sherrin v. Flinn, 155 Ind. 422, 58 N.E. 549; Tomlinson v. Tomlinson, 162 Ind. 433, 70 N.E. 881; Ashmead v. Reynolds, 134 Ind. 139, 33 N.E. 763, 39 Am. St. Rep. 238; Lockwood v. Lockwood, 124 Mich. 627, 83 N.W. 613; Lowman v. Lowman, 99 Va. 688, 40 S.E. 17; Caramini v. Tegulias, 112 A.L.R. 670, 121 Conn. 548, 186 Atl. 482; Glocke v. Glocke, 89 N.W. 118, 113 Wis. 303. (4) There was no ground for declaring a mistrial and sending the case to another division for trial. Todd v. Boston Elev. Ry. Co., 94 N.E. 683, 208 Mass. 505; Bryant v. Peterson, 183 So. 688.

LEEDY, P.J.


Plaintiff, Albert Deitz (respondent here), brought this suit against his son and daughter, defendants William P. Deitz and Florence Grohne, and their respective spouses (appellants here), to set aside and cancel a deed to certain valuable real estate located in Kansas City which plaintiff had executed some five years previously (September, 1935) in favor of his said children. Plaintiff claimed fraudulent misrepresentations, a distraught mental condition when the deed was executed, and failure on the part of the children to execute in writing, and carry out an agreement to certain rights reserved to plaintiff which were not expressed in the deed. Decree was entered in plaintiff's favor, as prayed, and defendants appealed, claiming the evidence was in their favor, and that the trial judge had acquired a bias, and had prejudged the case before they had an opportunity to present their defense.

Much of the testimony was conflicting, but we think that the facts as hereafter stated are supported by the weight of the evidence.

The property in question consisted of an apartment building, a store, the Deitz family home and certain other property both improved and unimproved, all located in Kansas City, Missouri. The gross rentals were about $300.00 per month, but taxes and upkeep consumed the greater part of the rentals. The property had been acquired by plaintiff and his wife as tenants by the entirety, and upon the death of plaintiff's wife about a month before the deed in question he acquired full title. Plaintiff's wife had contributed substantially to the acquisition of the property. She had worked in plaintiff's grocery store and after he had retired from business, she had contributed her labor to the upkeep of the property. She was the recognized business head of the family. She had charge of the family purse, and the acquisition of the property was largely due to her savings. Her children considered the Kansas City real estate (as distinguished from the money and securities from the family savings) as having belonged more to their mother than to their father. During her last illness she had demanded of her husband that he convey the property to her children, or at least make proper provision for them after her death, and he had agreed. At the time of her mother's death plaintiff's daughter had been living in Joliet, Illinois, where her husband was in the contracting business. He had managed to scrape through the depression by repair work and painting, assisted by an unpaid loan from plaintiff, which the daughter had obtained through her mother. Plaintiff's daughter asked her father to make his home with her in Joliet, but he refused to leave...

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