Derby v. Donahoe

• Decision Date: 24 December 1907
• Citation: 106 S.W. 632,208 Mo. 684
• Parties: HONORA DERBY, Appellant, v. MARY A. DONAHOE
• Court: Missouri Supreme Court

106 S.W. 632

208 Mo. 684

HONORA DERBY, Appellant, v. MARY A. DONAHOE

Supreme Court of Missouri, Second Division

December 24, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Jas. R. Kinealy Judge.

Reversed (with directions).

T. D Cannon for appellant.

(1) Defendant can claim no more, at the farthest, than that there was an agreement arrived at on September 5, 1900, based upon a mutual mistake of facts; that is, that the child Bessie Williford was the sole heir of decedent, Cornelius P Donahoe, and that it was not supposed that the plaintiff was an heir to an undivided one-half interest in the Montgomery street lot in question. But this of itself is sufficient to entitle the plaintiff to the relief prayed. Castleman v. Castleman, 184 Mo. 445; Bishop v. Seal, 87 Mo.App. 256. (2) As it is admitted by defendant and the attorney who testified in her behalf, that on September 6, 1900, defendant ascertained that plaintiff was an heir of decedent, Cornelius P. Donahoe; acting and having plaintiff act in pursuance to the agreement of September 5, 1900, was a representation that the supposed situation still existed. But both assert that neither informed plaintiff of her error and her testimony is uncontradicted that she never knew the truth of the matter until long after September 14, 1900, when she executed the deed in question. "Acts to show fraud are often more expressive than words." Morley v. Harrah, 167 Mo. 74; Mellon v. Webster, 5 Mo.App. 499; Warren v. Ritchie, 128 Mo. 319. (3) Shocking inadequacy has itself been held to amount to "conclusive and decisive evidence of fraud." Nelson v. Betts, 21 Mo.App. 231; 2 Pomeroy (1 Ed.), secs. 927, 928. (4) The deed of April 28, 1900, of Kate Donahoe was delivered and the title passed from the grantor, and her promise to devise the property conveyed by said deed to plaintiff amounted to nothing. Parson v. Parson, 45 Mo. 265; Hall v. Hall, 107 Mo. 107; Chessman v. Whittmore, 23 Pick. 234. (5) The transaction between the defendant, administratrix, and plaintiff, the heir; the plaintiff without experience and without counsel, and the defendant acting with the advice of her attorney (the attorney who advised all the parties as to the best way of settling their mutual interests), will be keenly scrutinized by a court of equity. Evans v. Evans, 196 Mo. 19; Chase v. Rusk, 90 Mo.App. 29. (6) If defendant in pursuing a fraudulent scheme parted with her dower interest in the St. Louis avenue lot, the failure by the petition to offer to reconvey does not bar relief, but the court will adjust the matter according to the circumstances of the case. Axman v. Smith, 156 Mo. 291.

Ernest C. Dodge and Rassieur, Schnurmacher & Rassieur for respondent.

(1) In actions to set aside conveyances, the evidence must be clear and convincing to entitle the plaintiff to a decree. The evidence in this case is not of that character. Jackson v. Wood, 88 Mo. 76; Brown v. Fickle, 135 Mo. 405. The decree in this case is supported by a preponderance of the evidence, and this court should defer to the findings of the trial court. (2) Where the deed recites a nominal consideration, evidence will be received to show the actual consideration. Evidence of this character may always be introduced in support of a deed, but not to defeat it. The recital in a deed is conclusive to show that there was some consideration, but it is only prima-facie evidence as to the amount thereof. Edwards v. Latimer, 183 Mo. 626; See v. Mallonee, 107 Mo.App. 721; Altringer v. Capeheart, 68 Mo. 441; Hollocher v. Hollocher, 62 Mo. 267; Wood v. Broadley, 76 Mo. 33; Bank v. Aull, 80 Mo. 199; Laudman v. Ingram, 49 Mo. 212. (3) Where a deed is fairly obtained, it cannot be set aside at the option of the grantor; especially where the grantee cannot be restored to his former position. Taylor v. Cayce, 97 Mo. 242. The plaintiff can in no event be entitled to a rescission if she continues to hold the consideration which was given to her for the conveyance. Robinson v. Siple, 129 Mo. 208.

OPINION

FOX, P. J.

This cause is now pending in this court by appeal on the part of the plaintiff from a judgment of the circuit court of the city of St. Louis dismissing her bill in equity and denying her the relief sought by such bill.

It is not essential to an understanding of the nature and character of this case to burden the opinion with a reproduction of the pleadings which present the issues upon which it was tried. It will suffice to say that this is a proceeding in equity to set aside and cancel a certain quitclaim deed executed by plaintiff to defendant conveying her interest to certain property in the city of St. Louis, designated as the Montgomery Street property, on the ground that said deed was fraudulently procured, by false and fraudulent representations, and in its procurement a fraud was perpetrated upon the plaintiff. The answer interposed to this petition in effect sharply presents the issue as to the truth of the facts alleged in the petition and avers that the execution of the deed sought to be set aside was brought about by an amicable arrangement of the mother of the plaintiff and defendant's deceased husband, and that such deed was voluntarily, without any representations made or inducements held out by the defendant, executed and delivered to the defendant. The replication was a general denial of the new matter set up in the answer. The evidence introduced at the trial will further indicate the nature and character of the issues involved in this proceeding.

In October, 1904, this cause came on for trial of the issues presented in the pleadings. The trial as indicated from the issues presented, involved the investigation of a conveyance charged to have been fraudulently obtained and procured, and upon questions of that character great latitude is allowed in making the proof; therefore, the testimony as detailed by the witnesses, as disclosed by the record, is quite voluminous. While we have read in detail all of the testimony developed at the trial, we do not think it is essential, and shall not undertake in a statement of this cause, to give anything like a detailed statement of the testimony of witnesses testifying in the cause. We shall be content with a brief statement of the facts developed at the trial which the testimony tended to prove. Upon some of the material facts involved in this controversy there is no conflict; as to others the testimony is somewhat conflicting.

The plaintiff in this case, Mrs. Honora Derby, is a daughter of Mrs. Kate Donahoe. Cornelius P. Donahoe was a son of Mrs Kate Donahoe and a brother of the plaintiff in this action. Cornelius died August 31, 1900, leaving Mary A. Donahoe, his widow, who is the defendant in this cause. Cornelius P. Donahoe died seized of the property designated in the petition as the Montgomery street lot. Cornelius P. Donahoe left no children surviving him; it was, however, developed at the trial that Cornelius P. Donahoe and his wife, Mary A. Donahoe, now his widow and the defendant in this cause, in 1896 had in custody an orphan child named Bessie Williford. They procured this child from the Catholic Orphan Board. This child was, at the time they received it, three or four years old, and there was testimony tending to show that Cornelius P. Donahoe and his wife, the defendant in this cause, at the time they received the custody of the child, had to sign what Mrs. Mary A. Donahoe says they supposed was a deed of adoption, and she further states that she and her husband always supposed that they had legally adopted this child. There was testimony tending to show that the child continued in their custody and care as though it was their own and had been legally adopted, and Mrs. Mary A. Donahoe states that since the death of her husband she has retained the child in her custody and that it assumed the name of Donahoe and has been treated as her child and was recognized by the people generally as the child of Cornelius P. Donahoe and his wife. It is further shown by the evidence that in April, 1900, Mrs. Kate Donahoe, as heretofore stated the mother of this plaintiff, Mrs. Derby, and Cornelius P. Donahoe, the late husband of the defendant in this cause, owned a certain lot of ground in the city of St. Louis which is designated as the St. Louis Avenue lot. On the 28th day of April, in the year 1900, Mrs. Kate Donahoe executed a deed to the lot known as the St. Louis Avenue lot to her son, Cornelius P. Donahoe, and the plaintiff in this cause, Honora Derby. This deed was properly executed and duly acknowledged and was delivered to Cornelius P. Donahoe, who kept it among his papers, but it was never placed of record. In consummating the transaction relating to the real estate involved in this controversy it was arranged that the defendant, Mrs. Mary A. Donahoe, should send for Mr. E. C. Dodge, an attorney-at-law, who was to attend to the defendant's affairs in connection with the transactions between the defendant and her mother and the defendant and the plaintiff, Mrs. Derby. On September 5, 1900, Mr. Dodge, attorney for the defendant, went to the house occupied by Mrs. Kate Donahoe. While at the house the defendant, Mary A. Donahoe, produced the deed of April 28, 1900, by which the mother, Mrs. Kate Donahoe, had conveyed to her deceased husband during his lifetime and to his sister, the plaintiff, Mrs. Derby, the St. Louis Avenue lot. This deed had not been recorded, and Mr. Dodge suggested that they ought to treat this deed as though it had never been made and tear it up, and that the mother, Mrs. Kate Donahoe, and Mrs. Derby, the plaintiff, should give a quitclaim deed to the defendant, Mary A. Donahoe, for the Montgomery Street lot, and the defendant should give Mrs. Derby a...