Erhart v. Dietrich

• Citation: 24 S.W. 188,118 Mo. 418
• Parties: ERHART et al. v. DIETRICH.
• Decision Date: 07 December 1893
• Court: United States State Supreme Court of Missouri

24 S.W. 188

118 Mo. 418

ERHART et al. v. DIETRICH.

Supreme Court of Missouri, Division No. 2.

December 7, 1893.

FORECLOSURE OF TRUST DEED — PAYMENT — POSSESSION OF NOTE AND DEED BY MAKER — PRESUMPTION — CREDITS — BURDEN OF PROOF — CARE OF PARENT — RIGHT OF CHILD TO COMPENSATION.

1. Where a son takes his aged, infirm, and demented father to his home, and takes care of him there until his death, the possession by the son, thereafter, of a matured note and deed of trust owing by him to his father at the time the latter was taken to his house raises no presumption of payment.

2. Where, in an action to foreclose such trust deed, there is no evidence that certain credits on the back of the note were in the handwriting of deceased, it is error to charge that all the credits are to be considered and taken as correct, and that the amounts were so paid, and the burden is on plaintiffs to prove the contrary.

3. In such case, defendant is not entitled to any credit until he shows the absolute fairness of the transaction, and that his father understood fully what he was doing.

4. Where, in such case, there is evidence that deceased gave defendant a note after he went to the latter's house, it is error to charge

that if deceased executed such note the law presumed that defendant was not indebted to his father, and the burden is on plaintiffs to prove such indebtedness, since such presumption, if it arises, is one of fact, for the jury.

5. A son cannot recover for taking care of his infirm and demented father unless he shows a state of facts which overcomes the natural presumption that he did not intend to charge for such services.

Appeal from circuit court, Scotland county; Benjamin E. Turner, Judge.

Action by August W. Erhart, administrator of the estate of John Dietrich, deceased, and William Gerth, against August Dietrich, to foreclose a trust deed executed by defendant to plaintiff Gerth, as trustee, to secure the payment to deceased of defendant's note. There was a verdict in favor of defendant as to such note and trust deed, and also on a set-off pleaded by him. From an order granting plaintiffs' motion for a new trial, defendant appeals. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

This is an action by the administrator of John Dietrich, deceased, and William Gerth, the trustee in a deed of trust given to said Dietrich, by his son August Dietrich, the defendant, to secure a certain note for $800, of date December 28, 1886, and bearing 8 per cent. interest. John Dietrich, Sr., died in the winter of 1890, at the age of 87 years. He was, as his name indicates, a German. He never acquired sufficient knowledge of the English language to speak it. He was a widower for several years prior to his death. He left surviving him four children, — two sons, John and the defendant, August, and two daughters, Mrs. Long and Mrs. Hildebrant, — all married and with families. The execution and delivery of the note and deed of trust for $800 are admitted by defendant. He pleaded payment and surrender of the note, and a set-off, for various goods and wares furnished his father by him, and for services rendered in nursing and caring for his father, and money loaned, to the amount of $1,003, setting out the items, to which plaintiffs replied, denying all the allegations of new matter, and especially denying the payment of the note and the surrender of the note and deed of trust, but averring the facts to be that "John Dietrich, Sr., the payee of said note, at the time when defendant obtained possession of said note and trust deed, long before and ever since his death, was old, infirm, and weak, in both mind and body, was incapable of attending to his business or transacting the ordinary affairs of life, and was wholly incompetent to make a contract, and the defendant, knowing said facts, fraudulently obtained possession of said note and trust deed without paying any consideration therefor, and without any consideration whatever, and has ever since fraudulently held possession of said note and trust deed." Plaintiffs further deny each and every item of defendant's set-off. From the evidence, we glean that the old gentleman lived by himself in a little house in Etna, doing his own cooking and work when well, and, when feeble, employing Mr. Kepfer's wife to cook and wash for him. He lived alone in this manner about five years, until the summer of 1889, when his mind became diseased, and his son, the defendant, was sent for, and he took him to his house, where he lived until his death, in 1890, save for a period of 10 weeks, which he spent at the house of his son-in-law Hildebrant. The testimony greatly preponderates to the effect that the old man was exceedingly feeble, both in mind and body, during the time he lived at his son's, the defendant. All his effects, including the note and mortgage, were taken to defendant's house, and after the death of the old man the note and mortgage were found in defendant's possession, with defendant's name cut off of the note. The defendant attended to his father's business after he came to his house. He paid Hildebrant for his care of him for 10 weeks. He gave in his tax list, including this note, to the assessor. Defendant does not claim that he was entitled to any credits on the note when his father came to him, in the summer of 1889. The old gentleman had no stock of any kind, and did not and could not transact any business. The note had a credit of $400 on it, purporting to have been made in 1890. This credit was not shown to have been in the old man's handwriting, or by his direction. Mr. Ladd, the county assessor, testified that the defendant gave in the $800 note for the years 1887, 1888, and 1889. In 1890 the defendant gave the note in as $300. Defendant offered evidence to show the value of his services by the week in taking care of his father, and plaintiffs offered various witnesses, most of them relatives, to prove that defendant admitted to them after his father's death that he owed him the $800 note. Defendant refused to pay Hildebrant two dollars a week for taking care of his father in 1890 on the ground that it was an excessive charge. The administrator testified that when he went to make the inventory, and asked defendant for the papers of deceased, defendant said that it was none of his business; that he would have nothing to do with it. No proof of payment, other than by the services set up in the counterclaim, was made by defendant, and there was no evidence that these were rendered with the expectation of reward, or that the amount was agreed upon, or any settlement had, prior to the old man's death, or that the old gentleman needed money for any purpose except for support.

The court gave the following instructions, at the request of plaintiffs: "(1) The court instructs the jury that in determining what weight should be given to the credit on the back of the note, and to the fact that defendant is in possession of the note in suit, the jury may take into consideration the mental capacity and condition of the deceased, the fact that he lived at defendant's house, and was there at the time of his death. (2) The jury, in passing upon the question whether said note is paid or not, have a right, and it is their duty, to take into consideration all the facts and circumstances connected with the cause, given in evidence, and the jury are the sole judges of the weight of the evidence and of the credibility of the testimony. (3) The jury, in passing upon defendant's set-off, in order to be justified in allowing him upon any item of the set-off, must be satisfied from the evidence in the cause that the same was justly due defendant at the time of the death of John Dietrich, and the burden of proof is on defendant to show such indebtedness. (4) Although defendant is in possession of the note and the trust deed sued upon, still the plaintiff has the right to sue and recover upon said note, unless the jury shall believe from all the evidence that plaintiff has paid off said note," — to which defendant excepted, and refused the following: "(3) If the jury believes from the evidence in the cause that said note of $800, admitted to have been given by the defendant to John Dietrich, deceased, was unpaid, and was due to John Dietrich, deceased, at the time he left Etna and went to reside with defendant, and if the jury further believe from the evidence of the cause that said John Dietrich was weak in body and mind, and did not have mental capacity sufficient to make a contract, and, while in said condition, defendant obtained possession of said note and mortgage, then said possession was wrongful, and could not affect plaintiff's right to recover on said note sued upon," — to which plaintiffs excepted. The court then gave the following instructions for defendant: "(1) The court instructs the jury that the possession of a promissory note by its maker after the same becomes due is presumptive evidence of its payment. Therefore, if you believe from the evidence in the cause that the note described in the plaintiff's petition was in the possession of the defendant at the time of the bringing of this suit, and after the same was due, then that is evidence that defendant has paid the same; and, before the plaintiff can recover in this action, he must prove, by a fair preponderance of the evidence in the cause, that defendant obtained the possession of said note improperly. (2) If the jury believes from the evidence that the note sued on was produced in evidence with the name of the defendant removed and cut therefrom, this...