Dickson v. Kempinsky
| Decision Date | 12 November 1888 |
| Citation | 9 S.W. 618,96 Mo. 252 |
| Parties | Dickson et al. v. Kempinsky et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. Elijah Robinson, Judge.
Affirmed.
Dyer Lee & Ellis for appellants.
(1) The lease in litigation is binding on the plaintiffs notwithstanding the lessee was a married woman. Lloyd v Underkofler, 13 Phila. 160; Woodfall's Land. and Ten. 71; 1 Taylor on Land. and Ten. (8 Ed.) secs. 105, 107; 1 Bishop on Married Women (1 Ed.) sec. 530, p. 364, note 2. (2) There is no such idadequacy of consideration as will, in the absence of imposition or undue influence, warrant the cancellation of the lease. Green v. Thompson, 2 Ired. Eq. 365; Knobb v. Lindsay, 5 Ohio 468; Harrison v. Guest, 8 H. of L. 481; 6 DeG., M. & G. 424; Phillips v. Stewart, 59 Mo. 491; Osgood v. Franklin, 1 Johns. Ch. 23, 24; Graham v. Pancoast, 30 Pa. St. 89; 2 Pom. on Cont. p. 428, sec. 926; 2 White and Tudor's Lead. Cas. in Eq. (4 Am. Ed.) part 2, p. 1241. (3) To warrant the cancellation of the lease on account of the mental condition of the lessor, Farnsworth, at the time of its execution, must have been incapable of comprehending the contract. 2 White and Tudor's Lead. Cas. in Eq. part 2, p. 1242; Graham v. Pancoast, 30 Pa. St. 89; Miller v. Craig, 36 Ill. 109; Lindsey v. Lindsey, 50 Ill. 79; Mann v. Betterly, 21 Vt. 326; Darnell v. Rowland, 30 Ind. 342; Nace v. Boyer, 30 Pa. St. 99. (4) In the case at bar there was no evidence whatsoever of even weak mental condition, or impairment of mind, on the part of Farnsworth. Mental condition and even insanity caused by violent disease, or any temporary or special cause is not presumed to even continue, after it once exists; much less can it be presumed to ante-date the proof of its existence. Buswell on Insanity, 213; Hix v. Whettemore, 4 Metc. (Mass.) 545; Hall v. Ungar, 4 Sawyer C. C. 672; Clark v. Sawyer, 3 Sandf. Ch. 351; Carpenter v. Carpenter, 8 Bush (Ky.) 283; Brown v. Riggin, 94 Ill. 560; Aurentz v. Anderson, 3 Pitt. Rep. 310.
Macfarlane & Trimble and Sol. Hughlett for respondents.
(1) The allegation of fraud stated in the petition is sufficiently definite to admit all the facts and circumstances tending to prove imposition and undue influence. Story's Eq. Plead. (9 Ed.) sec. 252; See v. Cox, 16 Mo. 166; Gates v. Watson, 54 Mo. 585. It is not necessary to state the facts and circumstances by which the fraudulent matters relied on are to be proved. Railroad v. Henry, 41 Mo. 271. Even a general charge of fraud would be good after verdict. 1 Greenl. Ev. (14 Ed.) sec. 252; R. S. 1879, sec. 3582; State v. County, 51 Mo. 522; Wellshear v. Kelly, 69 Mo. 348. (2) The lease in question, being made to a married woman, and being executory as to her covenants, was void as to her. If the covenants in the lease could not be enforced against defendant, then there was no reciprocity or mutuality, and plaintiff had the right to rescind upon equitable terms. Neef v. Redmon, 76 Mo. 196; Walker v. Owens, 79 Mo. 564; Shroyer v. Nickel, 55 Mo. 264; Music v. Dodson, 76 Mo. 624; Davis v. Smith, 75 Mo. 219; 2 Bishop on Married Women, sec. 250; Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 Mo. 152. The lessee only acquired an executory interest in the land. Austin v. Coal Co., 72 Mo. 541; Michua v. Walsh, 6 Mo. 348. (3) Inadequacy of consideration becomes controlling when connected with other circumstances of fraud. Railroad v. Brown, 43 Mo. 294; Durfee v. Moran, 57 Mo. 379; 1 Sugden on Vend. 204, 261; Day v. Newman, 2 Cox Ch. 77; Osgood v. Franklin, 2 Johns. Ch. 23; Seymour v. Delaney, 6 Johns. Ch. 222; Stoffel v. Schroder, 62 Mo. 147; Holmes v. Fresh, 9 Mo. 201; Cadwallader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 229. Inadequacy of consideration, coupled with inequality of parties contracting, or other incidents of fraud, will justify a court of equity in interposing its relief. 2 Pom. Eq. secs. 926, 927. (4) Defendant's husband being the agent of Farnsworth, in charge of these lands at the time, created such a relation of confidence between the parties that the transaction should be looked upon with suspicion, and the burden is upon the defendants to show that he gave to his principal the same advice as a disinterested adviser would have done; that he acted honestly and fairly throughout, and also that the consideration was fair and just. Bigelow on Fraud, p. 222, sec. 3; Torrey v. Bank, 9 Paige, 648; Gardner v. Ogden, 22 N.Y. 341; Massey v. Young, 73 Mo. 260; Pomeroy v. Benton, 57 Mo. 531; Bradshaw v. Yates, 67 Mo. 221; Henriod v. Neusbaumer, 69 Mo. 96; Story's Eq. Jur. secs. 309, 315; Street v. Goss, 62 Mo. 229; Cadwallader v. West, 48 Mo. 483; Garvin v. Williams, 44 Mo. 465; Green v. Church, 82 Mo. 652; Bridwell v. Swank, 84 Mo. 456.
Edward A. Farnsworth owned two tracts of land in Montgomery county one of which contained eight hundred acres, and the other four hundred and forty acres. On the twenty-fourth day of September, 1877, said Farnsworth leased the eight hundred acre tract to one Summers, the term to expire on the first day of January, 1886. On the second day of April, 1878, he leased the four hundred and forty-acre tract to defendant S. A. Kempinsky for a term ending on the second of April, 1888. No money rent was reserved in either of these leases. In the lease made to Summers, the lessee covenanted to erect a dwelling worth four hundred dollars, and a barn worth two hundred dollars, on the land, make one good cistern, two good ponds, set out two hundred fruit-trees, the first year, and keep them in good condition, fence the whole tract with a good fence, and leave the place with a good fence that will turn stock, and to pay all taxes accruing after Jan-1, 1878, during said term. In this lease the right was reserved to defendant A. Kempinsky to have firewood off the land. In the lease to defendant S. A. Kempinsky of the four hundred and forty-acre tract, she agreed to build on said land one house with four rooms, one stable, set out one hundred fruit-trees and twenty-five shade-trees, make one well, one pond, fence the land and pay taxes, and maintain and keep in repair all the buildings and fences belonging to said premises.
On the seventh of April, 1879, said Farnsworth executed another lease of both tracts to defendant S. A. Kempinsky for the term of ten years, the eight hundred-acre tract for ten years from the first of January, 1886, and the four hundred and forty-acre tract for ten years from the second day of April, 1888. In this lease, it was expressed that a money consideration of one hundred and fifty dollars was paid; the further consideration was that Mrs. Kempinsky covenanted to build on the land, a one-story frame house with two rooms, a log or board stable, plant two hundred fruit-trees and twenty-five shade-trees, make one pond, dig one well or cistern, pay all taxes on the land and enclose all of it with a good substantial fence on or before the expiration of the lease, and maintain and repair all the buildings and fences belonging to said premises, or which may, at any time during the term, be erected thereon as they shall be at the commencement of the term of said lease, said buildings and improvements to be erected upon such part of said premises as said Farnsworth may elect, and to be completed one year before this lease expires. Farnsworth died on the twenty-seventh of April, 1879. By his will, executed on the thirteenth of July, 1876, he devised his estate to his only child Barbara Dickson, the plaintiff. She, in February, 1884, commenced this suit to cancel and annul said lease of date April 7, 1879, on two grounds, first, because said S. A. Kempinsky, at the time the lease was made, was a married woman and incapable for that reason of binding herself by contract; second, because the consideration for said lease was grossly inadequate, and at the time of the execution thereof the said Farnsworth, by reason of old age and disease, producing weakness and imbecility of mind, was incapable of making said contract, or of transacting business or managing his property, and the said defendant A. Kempinsky, by taking advantage of his imbecility and helpless mental condition, fraudulently induced and procured the said Farnsworth to execute said lease to his wife, the said S. A. Kempinsky. The answer admitted the execution of the lease, denied the other allegations of the petition and set up that the said S. A. Kempinsky had a large separate estate. On the trial the decree was for the plaintiffs, and orders the said lease to be cancelled upon repayment to defendants of the sum of one hundred and fifty dollars, with interest, from which the defendants appeal.
I. The lessor, by the cash payment of one hundred and fifty dollars, made by the lessee at the time the lease was executed, received all the consideration he contracted for up to the time this suit was instituted. By the delivery of the lease, and the receipt by the lessor of the cash payment, the contract between them became an executed contract. It rested upon a valuable consideration and it may be conceded, in the absence of fraud, that the fact that a part of the consideration for the lease consisted of covenants in the lease to be performed by the lessee during the term, which she might not thereafter perform, and for her failure, she could not be held personally responsible by reason of her coverture, of which the lessor had knowledge, could not alone afford ground for invoking the power of a court of equity to cancel the lease. 1 Taylor Land. & Ten. secs. 105, 107; 2 Bish. Mar. Wom. sec. 250; Neef v. Redmon, 76 Mo. 195; Walker v. Owen, 79 Mo. 563; Draper v. Stouvenel, 35 N.Y. 507...
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