Feil v. Wells

• Decision Date: 12 March 1926
• Docket Number: No. 24762.,24762.
• Citation: 282 S.W. 25
• Parties: FEIL v. WELLS
• Court: Missouri Supreme Court

282 S.W. 25

FEIL v. WELLS

No. 24762.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Motion for Rehearing Overruled April 12, 1926.

Appeal from Circuit Court, Livingston County ; Arch B. Davis, Judge.

Suit by Catherine Fell against Charles Lincoln Wells. Judgment for defendant, and plaintiff appeals. Affirmed.

L. W. Reed, of Breckenridge, and Davis & Ashby, of Chillicothe, for appellant.

Kitt & Marshall, of Chillicothe, for respondent.

ATWOOD, J.

This is a suit to set aside a warranty deed, executed on the 9th day of August, 1920, by plaintiff, Catherine Feil, to defendant, Charles Lincoln Wells, for 37 acres of land, in which grantor reserved a life estate. Plaintiff went to trial on her first amended petition, the material allegations of which were: That at the time this deed was made she was the owner and in possession of said real estate; that she made her mark upon said deed without knowing or having any knowledge of the transaction ; that her mark representing her signature was placed upon said deed by Sid F. Thompson, at the request and upon the instruction of defendant, and without her authority, knowledge, or consent ; that at the time said conveyance was made she was past 78 years of age, and for a long time prior thereto had been, and then was, in feeble health of body and mind ; that said defendant well knew of plaintiff's advanced age, the exact condition of her health, and that she was the owner of a large amount of property ; that defendant, at the time of said `conveyance, and for many years prior thereto, was her agent, attending to her affairs, transacting all of her business, and had full management and control thereof ; that she had absolute confidence in his honesty, fairness, and ability to manage and control her said business affairs, intrusted the same to him, relied on his advice, honesty, and ability to manage, control, and transact her business affairs, and that a fiduciary relation existed between them; that at the time said deed was made and her mark placed thereon by the said Sid F. Thompson she did not know, and was not informed by the said defendant, nor the said Sid F. Thompson, nor any one else, that the said real estate was being conveyed by her to said defendant, and defendant fraudulently, for the purpose of deceiving, cheating, and defrauding her out of her real estate, represented and stated to her that the making of her mark on said deed was only a matter of business that he was transacting for her, and she believed said false statements and representations so made by said defendant to be true, and relied on the same, and was deceived thereby, and her mark representing her signature was placed on her deed by Sid F. Thompson without her knowledge and consent, and the fact that said real estate was being conveyed to said defendant by her was fraudulently withheld from her by defendant for the purpose of cheating, deceiving, and defrauding her out of the same, and by reason of the confidence she had in defendant and the fiduciary relation existing between them she was deceived in making her mark upon said deed; that there was no consideration whatever for said deed paid to her by defendant or any one else, and that under said deed defendant has taken possession of her said real estate, and is now exercising absolute control thereof, and claiming to own the same. The specific relief prayed is that the deed be set aside and for naught held; that the same be declared null and void ; that defendant be dispossessed of said real estate and enjoined from the management and control thereof and from claiming any interest therein ; and that the title to said property be vested in plaintiff. Defendant's answer was a general denial, coupled with the allegation that said deed was duly executed by plaintiff and delivered to defendant, and that the execution and delivery of said deed was the free and voluntary act of said grantor for the consideration in said deed recited. Plaintiff's reply was in the nature of a general denial to the new matter set out in defendant's answer.

The case was tried before the court, and in outline the pertinent facts in evidence are as follows: Plaintiff and her husband were of German birth, but came to America many years ago. They first settled in Ohio, and emigrated to Ray county, Mo., about 1867. The husband died in 1902, and the widow never remarried. At the time of his death the husband owned 400 acres of land in Ray county and some personal property. No children were born of the marriage, and the widow took one-half of his estate; the remainder descending to his collateral kin, some of whom lived in this country and some in the old country. Defendant, at the time of the trial, was 61 years old. He was about four years of age when the Fells took him into their home. He was no kin, and they never adopted him as a son, but they fed, clothed, educated, and treated him as such. He continued to live with them until he was about 25 years of age, when he married, moved to Cowgill, Mo., went into business, organized the Bank of Cowgill, and became its president. Friendly relations were continued between the Fells and defendant. Mr. Feil was a patron and owned stock in the bank, and, when this bank and the Cowgill State Bank were consolidated and reorganized under the name of the First National Bank of Cowgill, Mrs. Feil became the owner of 15 shares of stock. She did her banking there, and kept some of her papers there. Defendant was a director and vice president of this bank ; did counter work ; and actively assisted in transacting the business of the bank. When plaintiff's husband died, she employed attorneys to assist her in settling up the estate. Defendant gave her such assistance as he could, and in his own right purchased the interest of the collateral heirs. Later defendant negotiated a sale of the entire tract, and, acting on her own initiative and independent judgment, and against defendant's advice, plaintiff about the year 1905 purchased the 37 acres here in question. Again, contrary to the advice of defendant and her brother, plaintiff moved an old dwelling to another part of this newly purchased tract, and erected a large, new dwelling for herself thereon. Plaintiff resided on this property, rented her land, collected the rents, lent her money, collected the interest, bought and sold stock, and generally transacted her own business. Her brother, Adam Bender, lived with her, and assisted in caring for the farm and live stock. In later years Joe Bennett, who testified in her behalf, also lived with her, and rendered similar services, and defendant. also from time to time advised and assisted her in various matters, and helped her in making deposits and signed checks for her. Defendant also purchased some Liberty bonds and some packing house stock for her, which latter stock afterward proved worthless. At the time of the trial plaintiff was 78 years of age, had poor hearing and eyesight, and could read and write with difficulty. She denied having ever made a will, but defendant produced a sealed envelope, which he testified plaintiff had some time previous directed him to take from her bank box. This envelope was opened in the presence of the court, disclosing a will executed and witnessed in due form by plaintiff under date of October 28, 1916, bequeathing $1,000 each to her two brothers and one sister ; $500 each to a nephew and a niece; $1,000 to Lula Bowers ; $500 to Joe Bennett; and the remainder of the estate to defendant, who was named as executor. After the will was read into the record, plaintiff took the witness stand, denied she had ever executed this will, said she "didn't want the will made the way it is," and finally tore it up before leaving the stand. The evidence read as a whole indicates that the relations between plaintiff and defendant continued to be friendly for 6 months or more after the execution and delivery of the deed, although plaintiff was always inclined to act on her own judgment in transacting her business, and particularly in matters she thought defendant would not agree with her she did not seek his advice or assistance.

As to the circumstances connected with the execution and delivery of this deed of August 9, 1920, there is a sharp conflict in the testimony. Plaintiff says she just happened to come to defendant's home that day. and was confronted by defendant, a notary public, and several witnesses; that she never made a deed to her property to defendant ; that a paper writing was read over to her, which she did not understand, but signed by mark at defendant's request ; and that she signed nothing else. Defendant, on the other hand, says that plaintiff was a frequent visitor in his home, and while there on the 6th of August, 1920, she told him that she wanted to give him everything she had, excepting her home, for the rest of her days, and she "wanted it fixed up right away" ; that pursuant thereto he had his attorney draw up a deed, and the following Sunday...