Dreckshage v. Dreckshage

• Decision Date: 06 December 1943
• Docket Number: 38632
• Citation: 176 S.W.2d 7,352 Mo. 78
• Parties: Charles Dreckshage, Appellant, v. George W. Dreckshage and Sibyl Dreckshage, his wife
• Court: Missouri Supreme Court

176 S.W.2d 7

352 Mo. 78

Charles Dreckshage, Appellant, v. George W. Dreckshage and Sibyl Dreckshage, his wife

No. 38632

Supreme Court of Missouri

December 6, 1943

Appeal from Jefferson Circuit Court; Hon. Edward T Eversole, Judge.

Reversed and remanded (with directions).

John P. Griffin for appellant.

(1) A suit to quiet title is one at law, but defendants filed a cross bill praying that the deeds made by defendants to plaintiff be canceled, and title vested in him, and therefore, converted it into a suit in equity. Johnson v McAboy, 169 S.W.2d 932; Ebbs v. Neff, 325 Mo 1182, 30 S.W.2d 616; Crawford v. Amusement Syndicate Co., 37 S.W.2d 581. (2) In proceedings under Section 1684, R.S. 1939, the court will determine the title and interest of the parties and award complete relief, whether legal or equitable, and adjudge and decree the title accordingly. Johnson v. McAboy, 169 S.W.2d 932. (3) The petition alleged the plaintiff is the owner of the property in suit and described it, and that plaintiff at the request of defendant conveyed it to him without consideration, and he held the naked legal title for the benefit of plaintiff and conveyed it back to him by warranty deed, but on account of defendant and his wife making separate deeds, there was a cloud on the title which plaintiff asked to have removed; therefore, the petition states sufficient facts to give the court jurisdiction. White v. Kentling, 345 Mo. 526, 134 S.W.2d 39; Sec. 1684, R.S. 1939. (4) A party in possession under a claim of ownership has a better title than one who has no title or possession. Johnson v. McAboy, supra, l.c. 935; Dowd v. Bond, 199 S.W. 954; Dolphin v. Klann, 246 Mo. 477, 151 S.W. 956. (5) The defendant has no interest in plaintiff's property, except that he got him to sign deed to it on January 4, 1939, without the plaintiff knowing the effect of what he was doing, and as soon as he did learn that he had lost control of his property he proceeded to have the defendant convey it back to him, and the defendant did so on March 6, 1939, and the judgment and decree should be reversed and judgment rendered for the plaintiff. Cook v. Branine, 341 Mo. 273, 107 S.W.2d 28; Mentzer v. Mentzer, 325 Mo. 941, 30 S.W.2d 146; Wilkerson v. Wann, 322 Mo. 842, 16 S.W.2d 72; White v. Whitaker, 171 S.W.2d 684. (6) Furthermore, there was a confidential relationship existing between the plaintiff and the defendant. White v. Whitaker, supra, l.c. 686. (7) Defendant has no interest in the plaintiffs' property to invoke the jurisdiction of the court of equity to exercise its most extraordinary power to cancel his deed to the plaintiff -- an executed contract. Linneman v. Henry, 316 Mo. 674, 291 S.W. 109; Cohron v. Polk, 252 Mo. 261, 158 S.W. 603; Nichols v. Wimer, 230 S.W. 343. (8) The deeds and written admissions of the defendant constitute the principal evidence in this case, and this court will determine its own fact questions anew, as deference is only given to the finding of the chancellor where the evidence is all oral. Greenfield v. Petty, 346 Mo. 1186, 145 S.W.2d 367; Gorman v. Mercantile-Commerce B. & T. Co., 345 Mo. 1059, 137 S.W.2d 571; Plemmon v. Pemberton, 346 Mo. 45, 139 S.W.2d 910; Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d 870. (9) The only evidence offered by defendant to cancel his deed to the plaintiff conveying his property back to him is supported only by his own testimony that his brother and Joe Callahan told him the plaintiff would take the matter up with the police commissioners, his employer, if he did not convey it back, which entirely fails to meet the degree of proof required, namely, the evidence must be clear, cogent and convincing so as to leave no doubt in the mind of the chancellor. Platt v. Platt, 343 Mo. 745, 123 S.W.2d 54; Bross v. Rogers, 187 S.W. 38; Ulrich v. Zimmerman, 349 Mo. 772, 163 S.W.2d 567; Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419. (10) Duress or undue influence sufficient to set aside a deed must be such that the grantor was bereft of the free exercise of his will power caused by threats so as to be incompetent to contract. Wood v. Kansas City Home Tel. Co., 123 S.W. 6; Bray v. Haskins, 229 S.W. 1074; Glasscock v. Glasscock, 217 Mo. 362, 117 S.W. 67; Monroe v. Lyons, 339 Mo. 515, 98 S.W.2d 544. (11) The burden was on defendant to prove the allegation in his cross bill of misrepresentation and duress -- duress of a police sergeant. Johnson v. McAboy, 169 S.W.2d 932; Tower Grove Bank & Trust Co. v. Duing, 349 Mo. 986, 144 S.W.2d 69. (12) Defendant in his cross bill has invoked the jurisdiction of a court of equity to get back what he fraudulently took away from the plaintiff; therefore he does not come into court with clean hands and equity -- a court of conscience will not lift a finger to enforce an unconscionable transaction, namely, take plaintiff's property from him and give it to the defendant. Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Houtz v. Hellman, 228 Mo. 655, 128 S.W. 1001; Stierlin v. Teschemacher, 333 Mo. 1208, 64 S.W.2d 647; Frederich v. Union Elec. L. & P. Co., 336 Mo. 1038, 82 S.W.2d 79. (13) The defendant's signature was identified on plaintiff's Exhibits 3, 4 and 5, and the court should have admitted them as admissions against interest. Exhibit 3 is an affidavit signed by defendant the same date he executed the deeds on March 6, 1939, at the office of Callahan & Callahan. Exhibit 5 is a statement signed January 4, 1939, the same date he got the plaintiff to sign the deeds, admitting he had no interest in the property and would transfer it as plaintiff directs. Exhibit 4 is a quitclaim deed executed by both defendants April 5, 1940, to another piece of property. Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Lareau v. Lareau, 208 S.W. 241. (14) On appeal in an equity case this court will render such judgment as the pleadings and evidence warrant irrespective of erroneous rulings in admission of exclusion of evidence which has been preserved in the record. Marr v. Marr, 342 Mo. 656, 117 S.W.2d 230; Canty v. Halpin, 294 Mo. 118, 242 S.W. 97; Cunningham v. Kinnerk, 1 S.W.2d 241. (15) The evidence excluded is preserved in the record, therefore this court can determine whether it is admissible, and, if so, consider it without having the problem referred to in Thompson v. Pinnell, 237 Mo. 545, 141 S.W. 605. (16) The defendant, Sibyl Dreckshage, had no dower in the property because defendant did not hold an estate of inheritance, and she is not entitled to cancellation of her quitclaim deed. Miller v. Miller, 148 Mo. 113, 49 S.W. 852; Sec. 318, R.S. 1939. (17) The judgment and decree is broader than the cross bill in that it vests a fee-simple title in defendant and the cross bill admits the plaintiff has a life interest in the property, and should be reversed. Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; Sinclair Refg. Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353.

W. G. Marbury and Louis B. Sher for respondents.

(1) The appeal in this case should be dismissed for failure to comply with Rule 15, governing briefs filed in this court. Hicks v. La Plant, 145 S.W.2d 142; Maxwell v. Andrew County, 146 S.W.2d l.c. 623. (2) The petition fails to state a cause of action, for if the purpose of the suit is to obtain equitable relief or to establish a trust, then the character of the alleged trust must be ascertained from the bill, and the allegations of the said bill are wholly insufficient to establish the charge that the deed complained of was obtained by the respondent through the exercise of undue influence or fraud. Norton v. Norton, 43 S.W.2d 1024. (3) Under Section 1684, R.S. 1939, having reference to suits for quieting title, the cause of action and relief asked must be presented in the petition and not in the reply and relief not so asked cannot be granted. Regal Realty & Inv. Co. v. Gallagher, 188 S.W. 151. (4) The reply filed by the appellant is a departure and endeavors to set up a cause of action for the establishing of an express trust. Regal Realty & Inv. Co. v Gallagher, 188 S.W. l.c. 155. (5) The undisputed testimony of the respondent shows that he executed the deed to the property in question, dated March 6, 1939, wherein he purported to reconvey the property to the appellant (signed by himself, but not joined in by his wife) and acknowledged before one of the attorneys for the appellant, as notary public, under misrepresentation and duress, and the trial court was right in disregarding the same when he handed down his final decree. Mississippi Valley Trust Co. v. Begley, 298 Mo. l.c. 695. (6) Neither the pleadings filed by the appellant, nor the proof offered in support thereof, are sufficient to meet the requirements of Section 3494, R.S. 1939, to establish an express trust. Ferguson v. Robinson, 258 Mo. l.c. 130; Hillman v. Allen, 145 Mo. 638; Rogers v. Ramey, 137 Mo. l.c. 607. (7) The ruling of the trial court was correct in sustaining an objection to the offering in evidence of a quitclaim deed executed by Sibyl Dreckshage, the wife of respondent, for that the said deed was absolutely void under Section 3402, R.S. 1939. Bank v. Kirby, 269 Mo. l.c. 293. (8) The decree of the trial court was for the right party and should be affirmed. The making of the original will by the appellant, supplemented by him in the later conveyance to the respondent, George Dreckshage, of the property in question, was a business arrangement, understandingly entered into by the appellant as the result of business negotiations with his nephew, and supported by a consideration. Cook v. Newby, 213 Mo. l.c. 487. (9) The decree is not broader than the cross bill. There is no allegation in the cross bill admitting that appellant had any interest in the property after he conveyed the fee by warranty deed to respondent,...