Dreyer v. Videmschek

• Decision Date: 20 December 1938
• Docket Number: No. 35486.,35486.
• Citation: 123 S.W.2d 63
• Parties: DREYER v. VIDEMSCHEK.
• Court: Missouri Supreme Court

123 S.W.2d 63

DREYER v. VIDEMSCHEK.

No. 35486.

Supreme Court of Missouri, Division No. 2.

December 20, 1938.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Suit by Frank N. Dreyer against Anna Videmschek to establish plaintiff's title to parcel of land, wherein the defendant filed a cross-bill. From an adverse decree, the plaintiff appeals.

Affirmed.

Kinealy & Kinealy and Ernest C. Dodge, all of St. Louis, for appellant.

John A. Nolan, of Clayton, and Louis E. Zuckerman, of St. Louis, for respondent.

ELLISON, Judge.

The plaintiff-appellant, Frank N. Dreyer, and the defendant-respondent, Anna Videmschek, are brother and sister. The suit is in equity to establish appellant's title to a parcel of land in the city of St. Louis known as 5220 Genevieve Ave., and described as Lots 23 and 24, Block 8, Florissant Avenue Hills Subdivision in City Block 5531, Plat 2, recorded in Plat Book 18, pages 60 and 61, Office of the Recorder of Deeds of said City. The sole assignment of error on this appeal is that the finding and decree of the trial court should have been for appellant.

The suit was instituted July 17, 1934. The third amended petition alleges that the mother of the two litigants, Anna Dreyer, by her will devised the land to him; that although 39 years of age he was ignorant, illiterate and subnormal mentally; that his sister, the respondent, moved into the property with him, managed his business in connection therewith, and thereby sustained a fiduciary relation to him; that through artifice and fraud the respondent procured the execution of an alleged quitclaim deed recorded in Book 4730, p. 8, in the office of the Recorder of Deeds of the City of St. Louis, purporting to convey the land from him to her. Appellant alleges that he either never executed the deed at all, or that he executed it under the influence of intoxicating liquor administered to him by the respondent and her fraudulent representations and machinations. The deed was dated September 5, 1923, and was recorded nearly five years later on April 25, 1928. The prayer of the bill is to annul the quitclaim deed as void; to vest title to the land in appellant together with possession; and for an accounting of the rents, along with general relief. The respondent's amended answer and cross-bill put all the foregoing allegations of fact in issue, and interposed pleas of adverse possession and estoppel. The answer further averred that the devise of the land to appellant in the mother's will was void because the land was a homestead, and that the same passed to respondent under the residuary clause of the will.

Appellant's abstract is fragmentary and does not by any means bring up all the evidence, as is required by Rule 7 of this court. But the rule provides it shall be sufficient to state the legal effect of documentary evidence where there is no dispute as to its admissibility or legal effect; and that parol evidence shall be reduced to narrative form where its full force and effect can be preserved by so doing. Respondent has filed a motion to dismiss the appeal for violation of the above rule, and also an additional abstract. Appellant contends the record filed sufficiently complies with the rule. Since we feel we are able to get a fair understanding of the case from the record before us, and to determine it without prejudice to respondent's rights, we overrule the motion to dismiss.

The appellant testified that he resided with his mother in the second story of the property in litigation, the downstairs being rented to a tenant. After the mother died in June, 1920, the respondent and her husband and family on their own initiative moved in with appellant. The respondent took care of the place and for 5 or 6 years collected the same rent appellant had been getting theretofore, $8 per month. Appellant declared the respondent was supposed to pay rent to him but never did, and that he was to pay board to her and did pay $7 or $8 all the time he was there. At one place in his testimony he said he was then working for the Loose-Wiles Biscuit Company for about $20 per week. At another place he said he was working for the Fisher Body Company and continued to work there in 1923, 1924 and 1925, four or five years or more. After that he was employed by Proctor & Gamble. He turned his pay checks over to respondent and she was to take care of the money.

Appellant was married in February, 1924, about six months after the date of the quitclaim deed. He filed a suit for divorce in November, 1927, and obtained a decree in March, 1928. The quitclaim deed was recorded the next month. Before their separation his wife lived with him in the home of his sister, the respondent, and the latter charged them $12 per week for board and room. The respondent took him against his will to see the lawyer who brought the divorce suit. Also she had him put a notice in a newspaper that he would not be responsible for his wife's debts. Appellant testified the respondent was always afraid his wife would get the real estate in controversy away from him. He said he could not recall the date of his marriage, the steps taken in obtaining the divorce, or the execution of the quitclaim deed in suit.

Appellant stated the respondent's husband was a bootlegger; that they had "a flood" of hootch or white mule whiskey around the house all the time. He was always sick from drinking it, but held his jobs and kept on with his work. If he signed the quitclaim deed at all, he was almost next door to drunk when he did it. He declared he could not sign his name except by copying it from another signature, and could only count to ten. He attended the Fletcher School, a Catholic school in St. Louis, until he was 13 or 14 years old, going as far as the seventh or eighth grade, but he never learned his A B C's. A certificate introduced in evidence shows he was discharged from military service at Camp Funston because of defective mental development; mental age 6½ years, poor comprehension existing prior to enlistment.

Nevertheless, he described the occupational work he did at the Fletcher School, which consisted of putting pans (of bread?) in the oven, six to a shelf. At Proctor & Gamble's he packed five pound boxes of Oxydol in cases, 16 to a case — he judged there were 16 without counting. Also at the instance of respondent (he says) he brought suit against a tenant for possession of the ground floor of the premises in controversy. He admitted a signature by mark on the court petition for divorce from his wife was his mark, but said he couldn't read the petition. His application for a job with the Fisher Body Company bore the signature "F. Dreyer." He said he might have copied that signature but could not remember. He informed the Company of the facts stated in the application. He may have indorsed his name on his pay checks, but if so, he did it by copying his signature from another. He fixed the fence on one side of the building on the lots and put some shingles on the roof. His outlay was about $100. There was always insurance on the building, but he didn't know whose name it was in, as the respondent ignored his request to see the policies.

The executrice's final settlement of his mother's estate showed a deficit of $711.47, paid by appellant. Appellant testified if he had that much money the respondent must have put it in the bank from his pay checks. He had owned several automobiles. He bought a Chevrolet car on deferred payments from money he had "soaked in the plant," meaning, as we understand, from savings from his wages at the Fisher Body Company. His sister, the respondent, handled that transaction and in general all business out of money he earned.

Mrs. Chilton, a tenant in the lower story of the building on the land in litigation, said she paid the rent to the respondent and that the latter declared in 1927 the appellant owned the property and she was his guardian. Rose Hart, a sister of respondent and appellant, corroborated the latter's testimony that respondent was supposed to pay rent to appellant while her family lived with him, and to look after his business affairs. This witness received only $25 under her mother's will and had not spoken to respondent for five years. John Dreyer, a brother, said the respondent told him she was receiving and paying out appellant's money, and collecting the rent. Also she expressed the determination that appellant should get a divorce, and said: "We are going to take that house and turn it over to me." At one time she indicated a willingness to deed the property back to appellant after he had obtained his divorce. This witness admitted hostility toward respondent. Christ Dreyer, another brother, also testified that the respondent was receiving appellant's pay checks and looking after his business. About nine months before the divorce trial she said she was going to give the property back to appellant and return his "stuff" to him. This witness had not visited respondent in her home for five years. He said he couldn't explain why the appellant waited so long before bringing the instant suit, unless it was because the quitclaim deed was mislaid. Mrs. Carrie Dreyer, wife of the last witness, testified that respondent told her they (meaning the appellant and respondent) put the title to the land in her name, and after appellant got his divorce she was going to turn it back to him. Afterward respondent said she wouldn't deed it back, but would burn the house first. This Mrs. Dreyer declared appellant's wife left him (resulting in the divorce) because appellant was...