Dingman v. Romine
| Citation | 42 S.W. 1087,141 Mo. 466 |
| Parties | Dingman et al. v. Romine et al., Appellants |
| Decision Date | 23 November 1897 |
| Court | United States State Supreme Court of Missouri |
Appeal from Bates Circuit Court. -- Hon. James H. Lay, Judge.
Affirmed.
Graves & Clark and T. W. Silvers for appellant.
(1) Defendant filed a demurrer to plaintiff's evidence. This should have been sustained. There is not a scintilla of testimony, from first to last, concerning these conveyances sought to be set aside. No witness mentions the circumstances under which they were executed. Norton v. Paxton, 110 Mo. 467; Thompson v. Ish, 99 Mo. 160; Bush v. Lisle, 89 Ky. 393; White v. Stari, 47 N.J.Eq. 244; 2 Greenl. Ev. [13 Ed.], sec. 688. (2) The facts in this case will not shift the burden. Carl v Gabel, 120 Mo. 283; McCulloch v. Campbell, 49 Ark. 367. (3) Companionship with persons not at all related may produce the same influences as kinship and marriage, and if so, such influences are placed upon the same footing, and are not undue influence. This case shows nothing further in the evidence. Sechrest v. Edwards, 4 Mt. (Ky.) 163; Higgins v. Carleton, 28 Md. 115; Floyd v Floyd, 3 Strob. 44. (4) The evidence totally fails to show any undue influence, either in a legal sense or otherwise, and the decree must have been and was made to rest upon the legal presumption of undue influence, raised by the proof of the situation and the relationship of the parties. Then if the presumption of undue influence is the basis of the decree, had it been removed? This presumption was thoroughly overcome. The burden of proof cast upon defendant was fully met and sustained by the evidence. Both before and after Jacob P. Dingman got his pension and this land, he did by his expressions to the witnesses show a fixed purpose to give it to Margaret Romine. This evidence of a fixed and oft repeated purpose is evidence that there was no undue influence, and that the act was his free and voluntary act and deed. Thompson v. Ish, 99 Mo. 160; Rule v. Maupin, 84 Mo. 587; Couch v. Couch, 7 Ala. 510; note to Jackson v. Kiffin, 3 Am. Dec. 397, and cases therein cited. (5) The doctrine that statments made long prior to the disposition of the property conveyed by deed, is evidence strongly tending to show a fixed intent and purpose to so convey, and evidence strongly rebutting any presumption of undue influence is as thoroughly recognized in this State, where the conveyance is by deed, as it is where the conveyance is by will. Hamilton v. Armstrong, 120 Mo. 610.
H. W. Currey and J. S. Francisco for respondents.
(1) The trial court has not eliminated the question of mental incapacity from the case, as appellants contend. Rawlins v. Rawlins, 102 Mo. 563; Felton v. Gregory, 104 Mo. 488; Fulkerson v. Sappington, 104 Mo. 472; Mellier v. Bartlett, 106 Mo. 381; Lins v. Lenhardt, 127 Mo. 271; Warren v. Ritchie, 128 Mo. 311. (2) Under the practice in this State equity cases are practically triable in the appellate court de novo. Blount v. Skratt, 113 Mo. 48. (3) The testimony of witnesses that Dingman had told them that he had been mistreated by his family and driven from home is mere "hearsay testimony" and is no evidence that he had in fact been mistreated and driven from home, but such testimony was admissible for the purpose of showing the condition of his mind and the state of his affections, and for no other purpose. Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 236; Johnson v. Quarles, 46 Mo. 423; Thomson v. Ish, 99 Mo. 160; Burdett v. May, 100 Mo. 13; Bush v. Bush, 87 Mo. 480; McFadin v. Catron, 120 Mo. 274; Walton v. Kendrick, 122 Mo. 504; Jones v. Roberts, 37 Mo.App. 163; Wynn v. Cory, 48 Mo. 346; Garland v. Smith, 127 Mo. 567. (4) Jacob P. Dingman and Margaret and Jesse Romine stood in such relation to each other that confidence was necessarily reposed by Dingman in the Romines, and that influence which naturally grows out of that confidence was possessed by them; and this is all that is necessary to establish that fiduciary and confidential relation which invites the watchful and jealous care of a court of equity and renders the transaction between them presumptively invalid. 2 Pom. Eq. Jur. [2 Ed.], sec. 956; Dunn v. Dunn, 42 N.J.Eq. 431; Garvin's Adm'r v. Williams, 44 Mo. 465; Cadwallader v. West, 48 Mo. 483; Yosti v. Laughran, 49 Mo. 594; Warrall's Appeal, 110 Pa. St. 349; Parker v. Parker, 45 N.J.Eq. 224; Maddox v. Maddox, 114 Mo. 35. (5) The relations and duties involved in it need not be legal, but may be moral, social, domestic, or merely personal. 1 Story, Eq. Jur., ch. 7, sec. 323; 2 Pom. Eq. Jur. [2 Ed.], sec. 956; Turner v. Turner, 44 Mo. 535; Cadwallader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 228; Bradshaw v. Yates, 67 Mo. 228; McClure v. Lewis, 72 Mo. 314; Harvey v. Sullens, 46 Mo. 147; Hamilton v. Armstrong, 120 Mo. 597; Carl v. Gabel, 120 Mo. 283. (6) It was only necessary for the plaintiffs to prove that a confidential relation existed between Dingman and the Romines, or prove such facts as warrant the finding that confidential relations existed between them, and that the conveyance was made during the existence of such relations, and that the consideration therefor was inadequate. Cadwallader v. West, 48 Mo. 483; Harvey v. Sullens, 46 Mo. 147; Garvin v. Williams, 44 Mo. 465; Yosti v. Laughran, 49 Mo. 594; Street v. Goss, 62 Mo. 226; Rankin v. Patton, 65 Mo. 378; Bradshaw v. Yates, 67 Mo. 221. (7) After proof of facts from which a relation of confidence could be legitimately inferred between the grantor and the grantee, and the execution of the deed during the existence of such relation for a nominal consideration, the burden of proof shifts to the defendants. 2 Pom. Eq. Jur. [2 Ed.], sec. 956; 1 Story, Eq. Jur. [13 Ed.], ch. 7, sec. 323; Yosti v. Laughran, 49 Mo. 594; Street v. Goss, 62 Mo. 226; Rankin v. Patton, 65 Mo. 378; Gay v. Gillilan, 92 Mo. 250.
Plaintiffs James J. and Melvin C. Dingman, as sole heirs of Jacob P. Dingman, deceased, sue the defendants Margaret and James C. Romine to set aside two deeds, one executed and delivered by the said deceased to defendant Margaret Romine on the eleventh day of July, 1889, by which he conveyed to her a tract of one hundred and fifty acres of land in Bates county for the expressed consideration of $ 1 and uniform kindness and motherly care; the other a deed from the said Margaret to her son, the defendant James C. Romine, dated January 2, 1892, for an expressed consideration of $ 2,400, conveying the same land to him. The petition charges that the first of said deeds was without consideration, and was the result of the coercion, fraud and undue influence of the said Margaret and her husband Jesse Romine, and of one D. S. Snyder, over the grantor the said Jacob P. Dingman, and further, that the said Jacob P. Dingman had not sufficient capacity to make a deed, and that the latter of said deeds was accepted by the grantee with notice thereof. The answer admitted the execution and delivery of said deeds, but denied all other allegations of the petition.
A trial of the facts resulted in a finding by the court "that plaintiffs are the only heirs of Jacob P. Dingman, deceased; that the warranty deed executed by the said Jacob P. Dingman, dated July 11, 1889, was obtained by the said Margaret Romine by undue influence and was without consideration, and the said James C. Romine accepted his deed from the said Margaret without paying any consideration therefor and with notice of his grantor's fraud."
The evidence shows that at about the year 1874 Jacob P. Dingman lived with his wife and plaintiffs, his two children, then nine or ten years of age. He was at the time advanced in years and nearly blind, partially deaf, and otherwise afflicted with disease. In his condition he was unable to work or earn a support for his family, and lived in great poverty. About this time the wife and children secured homes in the families of neighbors and he left that neighborhood, and was thereafter, until 1887, supported by the county. He was taken care of by two or three families for a year or more each, the county paying his board, until about 1882, when he was taken into the family of Jesse Romine and his wife Margaret, both of whom appear to have been old people. He lived in this family until his death, which occurred about 1892. The county paid the Romine people for keeping him as long as he remained a pauper. It appears that Dingman had been a Union soldier in the civil war, and some time previous to making his home with the Romines he had made application for a pension, but up to that time he had not been able to have it allowed. D. S. Snyder was employed in some capacity to assist him in securing his pension. In 1887 a pension of $ 72 per month was allowed and for arrearages he was paid $ 12,500. Out of this amount he paid Snyder $ 6,000, he expended about $ 500 in building a dwelling house on Romine's land, and bought the farm in question, paying therefor about $ 2,200. In 1887 he made his will by which he gave to one of his sons $ 500, to the other $ 10, and the residue of his estate he gave to Mrs. Romine. Romine thereafter received the pension quarterly, and for a time retained one half as compensation for boarding and caring for the pensioner and thereafter he retained the whole of it for the same services.
At the time Dingman went to Romines to live he had become totally blind, his deafness had greatly increased, and his other afflictions had rendered him about helpless. He was confined to his room and bed almost constantly from about 1887 to his death, and required the constant care and attention of a child. Mr. and Mrs. Romine and their son James waited upon and nursed him. Most of his business was transacted by Mr. Romine. He...
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