Doherty v. Noble
| Decision Date | 09 March 1897 |
| Parties | Doherty, Appellant, v. Noble et al |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.
Affirmed.
McReynolds & Halliburton and Cunningham & Dolan for appellant.
(1) Where a person is so situated as to exercise a controlling influence over the will and conduct of another, the clearest evidence is required that there was no fraud, influence or mistake. Harvey v. Sullens, 46 Mo. 152; Cadwallader v. West, 48 Mo. 483; Armstrong v Logan, 115 Mo. 465. (2) A voluntary conveyance from a grandmother to her granddaughter will be set aside when it is shown that the granddaughter exercised a controlling influence over the grandmother, and there was no deliberate unbiased intention on the part of the grantor to make the deed. 2 Pomeroy's Equity Jurisprudence [2 Ed.], sec. 962; Cadwallader v. West, 48 Mo. 483.
Ayres & Jones and Thomas & Hackney for respondents.
(1) Respondent's motion to dismiss the appeal should be sustained. Six depositions and three deeds introduced in evidence, all material to the issues and necessary for a review by this court of the judgment of the trial court, are omitted by appellant from her abstract. Appellant's abstract of the record must, in equity cases, set forth all the evidence. This duty devolves on appellant and can not be shifted to the respondent. This court will, on motion of respondent in such case, dismiss the appeal. Garrett v Coal Co., 111 Mo. 279; Brand v. Cannon, 118 Mo. 595. (2) The appellant's abstract of the record does not show what, if any, final judgment was rendered by the circuit court. This is an additional reason for the dismissal of the appeal. Mills v. McDaniels, 59 Mo.App. 334, and cases cited. (3) The evidence fails to show that there was any undue influence exerted by Mrs. Noble, or her husband, or by Mr. Clodfelter, to procure the conveyance sought to be set aside. The deed, reserving as it did, a life estate, would not under such circumstances, be set aside as effected by undue influence. Bowles v. Wathan, 54 Mo. 261. (4) The evidence of Mrs. Noble, of her husband, Dr. Thos. B. Noble; of Mr. Clodfelter, plaintiff's attorney; of the notary, Edward Schwab, and of Dr. W. C. Rank, a friend of Dr. Noble, who called at his house at the time the deeds were being made out, and who was well acquainted with Mrs. Doherty, all shows that Mrs. Doherty signed the deed and knew all about it, and talked about it, explaining to Schwab and to Dr. Rank the fact that it was mineral land, etc., and that she was giving to Mrs. Noble, whom she had always treated as her child, a deed for her share of the property which she intended her to have the benefit of at her death. (5) The rule applicable to gifts from parent to child must be applied in this case for the reason that all the evidence shows plaintiff so treated and considered Mrs. Noble. The rule is, that the mere relation of parent and child is not sufficient to justify a conveyance from parent to child being set aside, without showing the exercise of some undue influence or the existence of fraud, or that some advantage had been taken by the child of the parent's weak or helpless condition. The rule applicable to gifts, etc., obtained by attorney from client, spiritual adviser from advisee, trustee from cestui que trust, parent from child, guardian from ward, does not apply to gifts, etc., from parent to child. McKinney v. Hensley, 74 Mo. 332. (6) That plaintiff was very greatly attached to defendant, Florence, from her infancy up to the time of the commencement of this suit, and that Florence exercised the usual influence of a kind and devoted daughter toward an aged and respected mother is not denied by defendants; but this influence is commendable rather than reprehensible, and supports instead of militating against the validity of the gift. Jackson v. Hardin, 83 Mo. 185. The conveyance in question is fair, equitable and just, and even if it could be held to have been procured by an influence undue in its nature, a court of equity would not under such circumstances set the conveyance aside. Turner v. Turner, 44 Mo. loc. cit. 537; Cruger v. Douglas, 4 Edw. Ch. 433; Moore v. Moore, 67 Mo. loc. cit. 197. The fact that the execution of the deed is in line with a purpose previously entertained by the grantor, evidenced by her will, evidenced by her deed to other property and by her declarations oft repeated to the members of her family and friends, and that its effect is simply to carry out an agreement previously made between the parties, negatives alleged fraud on the part of the grantee or others in securing its execution. Brennan v. Zehner, 97 Mich. 98.
This is a suit in equity to set aside a quitclaim deed dated December 14, 1891, made by plaintiff in consideration of love and affection, whereby she conveyed to defendant, Florence E. Noble, one undivided one third of four fifths of a tract of mineral land in Jasper county, Missouri. By the deed the grantor retained a life estate in the land.
The petition charged that said defendant was the granddaughter of plaintiff, by whom she was raised from infancy, and had been educated. That she is twenty-two years of age, intelligent, and well educated.
That plaintiff is seventy-five years old, and is very weak and infirm, and mentally incapable of looking after her business affairs; that she is illiterate, and can barely write her own name, and has never had any experience or knowledge of business matters; that for the past few years she has been in feeble health and weak in mind, and has intrusted all her business matters to her two sons, Mat and Marshall Doherty, especially in litigation with other parties over this same land.
That defendant Thomas Noble, the husband of defendant Florence, is a well educated man and a physician by profession, and in the absence of her said two sons, defendants controlled plaintiff in business matters, and by their relationship to her and their close associations, they possessed an undue influence over her.
That plaintiff resided in Crawfordsville, Indiana, and defendants, since their marriage, in Cincinnati, Ohio.
That one Clodfelter, of Crawfordsville, was the attorney for plaintiff in the former litigation. That shortly after the trial of said cases in Missouri plaintiff was taken to the home of defendants in Cincinnati, where her said attorney, Clodfelter, met her, and by the undue influence and threats of said Clodfelter and defendants she was induced to execute and deliver the deed in question.
The answer, after denying generally the allegations of the petition, charges, affirmatively, that plaintiffs, by and through the advice of her two said sons, agreed to ratify and confirm the said conveyance if defendants would cancel a certain prior conveyance of the said plaintiff to defendant Florence E. Noble. That defendants did cancel such conveyance, and thereby surrendered to plaintiff valuable property, and plaintiff then and there fully and freely confirmed and ratified the deed in question.
It was shown upon the trial that at the time of the execution of the deed plaintiff was a widow about...
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