Dunnigan v. Green

• Decision Date: 19 November 1901
• Citation: 65 S.W. 287,165 Mo. 98
• Parties: DUNNIGAN v. GREEN et al.
• Court: Missouri Supreme Court

65 S.W. 287

165 Mo. 98

DUNNIGAN v. GREEN et al.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

EXCHANGE OF PROPERTY — REMEDIES — SETTING ASIDE CONVEYANCE — TRUSTS — EVIDENCE — SUFFICIENCY — APPEAL — ISSUES IN LOWER COURT.

1. Plaintiff and her husband executed a deed of a farm to their son to enable the former to sell it in the husband's absence, and plaintiff retained the deed. Plaintiff knew of negotiations by her agent to exchange the farm for lots, and that the exchange could not be made while she held the undelivered deed to the son. She was not satisfied with the price of the lots, but agreed to consider the trade. Subsequently she sent the deed, stating she liked the property. The agent procured a deed to the farm from the son, who informed plaintiff he had made it, and the exchange was concluded with defendant. Plaintiff did not object to her son having made the deed, and did not forbid the trade. Held sufficient to warrant a decree refusing to devest the title to such farm out of defendant on plaintiff's reconveying the lots.

2. A conversation between plaintiff and her son after the exchange was made, at which defendant was not present, is not admissible.

3. The exclusion of a question which has already been fully answered is not cause for complaint.

4. Where, in a suit to annul an exchange of realty, the petition was not framed on the theory that defendant was a trustee for plaintiff, and no issue was joined on such theory, it cannot be urged for the first time on appeal.

5. Realty was conveyed to a son by husband and wife to enable the latter to sell it in the husband's absence. An exchange was negotiated by the wife's agent, and the son executed a deed to defendant. The abstract showed title to the realty in the wife, and when the exchange was made the deed to the son was delivered to defendant. During the negotiation such agent stated to defendant that he would notify such wife to come and see the property to be taken in exchange for the realty. Held insufficient, in a suit to annul the exchange, to sustain a claim that defendant accepted the deed to such realty knowing that the son only held the title in trust for such wife.

Appeal from circuit court, Crawford county; L. B. Woodside, Judge.

Bill by Mary M. Dunnigan against Joseph A. Green and others. From a decree for defendants, plaintiff appeals. Affirmed.

This is a bill in equity to devest title to a farm of 133 acres, in Crawford county, out of the defendants, and vest it in the plaintiff, she offering to reconvey two lots in the city of St. Louis to Green. There was a decree for the defendants in the circuit court, and the plaintiff appealed.

The facts are these: The plaintiff is a married woman, living in Jefferson county. She cannot write English. Arthur G. Printz, a real estate agent in St. Louis, had been her agent for about two years. He transacted business for her, loaned money for her, and on January 7, 1898, he had $600 of her money in his hands for investment. On the 27th of October, 1890, the plaintiff and her husband executed a deed to the Crawford county farm to their son P. William Dunnigan to enable the plaintiff to sell it whenever she desired. This was done because her husband contemplated leaving the state. The deed never was delivered to the son, however, but remained in Mrs. Dunnigan's possession until March, 1898. Plaintiff learned that 40 acres of her farm had been sold for taxes, and in January, 1898, she went to see Printz to get him to investigate the matter. She did not find him, but left word for him. On the 7th of January, 1898, Printz wrote to her, asking if he should go to Crawford county to look into the matter. On the 12th of January plaintiff wrote to Printz, asking him to go to Crawford county and straighten out the matter. Printz did so, and had an abstract of the title made. At Cuba he met, for the first time, the defendant Green, and Printz told Green the object of his visit to Crawford county. During their talk Green proposed to exchange two lots he had in the city of St. Louis for the farm. Considerable correspondence afterwards took place between Printz and Green about the exchange, each disparaging the property offered by the other. On the 28th of February Green wrote to Printz that if the farm suited him he would make the exchange, but that the lots would have to be taken subject to a mortgage of $850, which was on one of them, and asking who the deed to the lots should be made to. On the 2d of March Printz wrote to Green in answer to his letter of the 28th of February; that he would make the trade; but did not give the name of the person to whom the lots were to be deeded. On the 6th of March Green went to St. Louis, and met Printz the next day at his office. Printz told Green that he would have to write to Mrs. Dunnigan to come in and see the lots, and that, as she lived in the country, it would be Saturday before the letter would reach her. Some time afterwards Mrs. Dunnigan went to St. Louis, and Printz told her for the first time of the proposed exchange. She said she was willing to make the exchange if it was a good trade for her. Printz took her out, and showed her the lots, and told her the price of one of the lots was $2,200, and that it had a mortgage on it for $850, which she would have to assume, and the price of the other lot was $750. She thought the prices were too high, and objected to taking land with a mortgage on it. Printz told her he would try to get the prices down, and she agreed to take the matter under advisement. Printz then asked her if she did not have a deed to the farm which she had executed to her son. When she asked him how he knew about the deed Printz told her that Mr. Kortjohn had told him about it. There was a deed of trust upon the farm, which Mrs. Dunnigan had paid off, and had in her possession, but which had never been released; and Printz told her to send him the deed of trust and notes, and also the deed she had made to her son. She said, "Mr. Printz, you are not going to make a bargain without I am satisfied?" He answered, "Of course not." On the 18th of March Mrs. Dunnigan sent the following letter to Printz: "Houser Springs, Mo., March 18th, 1898. According to promise, I send you those papers, — the three notes and the deed of my son, — and I am surprised that I cannot find the deed of trust among my papers. I am almost sure I had it before my eyes when I gathered those tax receipts which I delivered to you. I looked among all my papers, and didn't find it; but maybe it was mislaid, and I may find it yet accidentally. If I find it, I will send it. I came home a day later than I expected, otherwise the papers would have been sent sooner. Now, I wish to tell you again I like the property well what you showed me. I will close, hoping to hear from you soon. Yours respectfully, [Signed in German] Mary M. Dunnigan." This letter was written by Mrs. Dunnigan's other son at her dictation, and was signed by her. Concerning the deed to her son, and where he could be found, Mrs. Dunnigan testified as follows: "Just the very evening I had seen the property I happened to meet my son. I told him I had been to look at some Oak Hill property and De Hodiamont property; that I had seen the lots, and was talking about trading the farm for them; but I said, `I don't think we will make any trade, because the price is too high;' and I said, `If I happen to make a deal, maybe I would call you to help me make a deed.' On the day I looked at the property I told Printz where my son could be found. He asked me, and, of course, I told him. I told him he was on the Cass Avenue Line. I told him where my son could be found, because he asked me. I don't know what he asked me for. Q. Didn't he tell you, the day you made the trade, that your son would make the deed instead of you? A. No, sir; my son had nothing to do with it. Q. Didn't you say to him on that day that you and your husband made a deed to your son; that your husband was contrary, and wouldn't make a deed, and for that reason some years ago you had a deed made to your son, so you could have it in his name as a matter of convenience in making a trade? A. No, sir. When I found out he knew it was in existence, I told him it was in my son's name, and it was left in my hands for fear I needed it when my husband went away. Q. What use would you have for it when he went away? A. I don't know, but my husband told me that. That is what he told me, — that it was only when he went away that I might want to use it. Q. Then in the conversation about this deed and this trade you told Printz where your son could be found? A. Yes, sir; and he asked me, `Would your husband sign a deed?' and I told him I didn't know; and he says, `Will your son sign a deed?' and I says, `I don't know;' and he says, `I will go and see him,' and I said nothing." On the 21st of March, 1898, Printz saw Mrs. Dunnigan's son P. William Dunnigan, and procured from him a deed to Green for the Crawford county farm. There is a sharp conflict in the testimony of Printz and the son as to what took place when this deed was executed. Printz's account is as follows: "Q. You may state what was said between you. A. Mrs. Dunnigan told me she would take the proposition under consideration, and, in case she saw fit to make a deal, she would send me a deed made from herself and husband to P. Wm. Dunnigan, and that she would explain the matter to her son, and instruct him, if she wished to make the deal, to sign the deed. In compliance with that agreement, I received the deed from Mary M. Dunnigan and her husband to P. William Dunnigan, and I received the letter of March 18th just as it is. The letter was received in the same envelope with the deed." Witness identifies the envelope. Witness continued: "After I received the deed, I saw Mrs. Dunnigan's son. Q. Who told you his whereabouts? A. Mrs. Dunnigan, at the time I left her; at the time she...