Finley v. Williams

• Decision Date: 11 June 1930
• Docket Number: 28956
• Citation: 29 S.W.2d 103,325 Mo. 688
• Parties: R. F. Finley v. J. M. Williams and Margarette Williams, Appellants
• Court: Missouri Supreme Court

29 S.W.2d 103

325 Mo. 688

R. F. Finley v. J. M. Williams and Margarette Williams, Appellants

No. 28956

Supreme Court of Missouri

June 11, 1930

Appeal from Pulaski Circuit Court; Hon. W. E. Baron, Judge.

Affirmed.

Thomas A. Shockley and Lorts & Breuer for appellants.

(1) The petition does not state facts sufficient to constitute a cause of action against defendants, and this assignment of error can be raised for the first time in the appellate court. Alward v. Boatwright, 193 S.W. 568; Sec 1230, R. S. 1919; Titus v. Development Co., 264 Mo 240; Carpenter v. St. Joseph, 263 Mo. 711; Chandler v. Railroad, 251 Mo. 599; Stonemetz v Head, 248 Mo. 254; Turner v. Hunter, 225 Mo. 84; Wilson v. Darrow, 223 Mo. 531; McQuitty v. Wilhite, 218 Mo. 591, 131 Am. St. 561; Hudson v. Cahoon, 193 Mo. 557; Hoffman v. McCracken, 168 Mo. 343; Paddock v. Somes, 102 Mo. 226, 10 L. R. A. 254. (2) The deed contains no condition subsequent, and hence the petition based thereon does not allege any facts which would warrant a court of equity in setting aside and cancelling the same, even if defendants failed to comply with the agreement specified in the deed. Alward v. Boatwright, 193 S.W. 570; Shafer v. Shafer, 190 S.W. 323; Catron v. Scarritt Collegiate Inst., 264 Mo. 713; Lackland v. Hadley, 260 Mo. 570; Haden v. Railroad, 222 Mo. 138; Anderson v. Gaines, 156 Mo. 670; Studdard v. Wells, 120 Mo. 29; O'Brien v. Wagner, 94 Mo. 96, 4 Am. St. 362; Ellis v. Kyger, 90 Mo. 600; Clark v. Town of Brookfield, 81 Mo. 506, 51 Am. St. 243; Moore v. Wingate, 53 Mo. 400; Messersmith v. Messersmith, 22 Mo. 370. Before a deed could be set aside in a proceeding in equity, the petition should have alleged that the consideration was for care and support that the grantees were insolvent, and also have charged fraud or improper influence on the part of the grantees to obtain the deed, and these allegations should have been supported by proof. Anderson v. Gaines, 156 Mo. 664; Brown v. Fickle, 135 Mo. 405; Taylor v. Crocket, 123 Mo. 300; Weiss v. Heitcamp, 127 Mo. 23; Rogers v. Ramey, 137 Mo. 596; Lackland v. Hadley, 260 Mo. 572; Allison v. Cemetery Co., 283 Mo. 431, 223 S.W. 43. A deed made in consideration of future support of the grantor, should recite that fact as a condition precedent, and that the services should be performed before the title should vest. Studdard v. Wells, 120 Mo. 25; Evangelical Church v. Schreiber, 277 Mo. 128. (3) The court erred in striking out a portion of defendants' answer, and afterwards permitting the plaintiff, over the objection of defendants, to offer evidence on the issues stricken out, and excluding evidence offered by defendants on said issues. Warehouse & Storage Co. v. Toomey, 163 S.W. 558; Booker v. Ry. Co., 204 S.W. 556; Stephens v. El Dorado Springs, 185 Mo.App. 471. (4) Where a deed is based on a consideration of care and support to be rendered by the grantee, it is error to set aside and cancel such deed where there has been partial performance. McElroy v. Masterson, 84 C. C. A. 202, 156 F. 36; Lewis v. Lewis, 92 Am. St. 240; Risley v. McNiece, 71 Ind. 434; Leonard v. Smith, 80 Iowa 194; Woolcott v. Woolcott, 138 Mich. 176; Scott v. Scott, 89 Wis. 93; Williams v. Langwill, 25 L. R. A. (N. S.) 932. (5) In equity cases the appellate court will not be concluded by the chancellor's findings, when not supported by the weight of the evidence. Gross v. Byler, 297 S.W. 391 (6) Equity cases are substantially triable de novo in the Supreme Court, and this court, "while deferring somewhat to the conclusions of fact reached by the trial court, has not been bound by its findings of fact, nor its conclusions of law thereon, but has ever exercised a supervisory control over both." Blount v. Spratt, 113 Mo. 48; Benne v. Schnecko, 100 Mo. 250; Gibbs v. Haughowout, 207 Mo. 384; Givens v. Ott, 222 Mo. 395; Cohron v. Polk, 252 Mo. 261. It has been said that "otherwise appeals in chancery causes would be idle formalities." Gottfried v. Bray, 208 Mo. 663; Benne v. Schnecko, 100 Mo. 257; Blount v. Spratt, 113 Mo. 54; McMurray v. McMurray, 180 Mo. 533; Ryan v. Dunlap, 111 Mo. 618; Glasgow Milling Co. v. Burnes, 144 Mo. 196; Fishing Club v. Jackman, 172 Mo.App. 569.

Eldredge & Bell and Phil M. Donnelly for respondent.

(1) It is true that if respondent's petition fails to state any cause of action at all that such defect may be raised for the first time in this court, but that is not the situation in this case, for the petition states a cause of action for the cancellation of the deed on the ground of failure of consideration and fraud. The petition clearly and cognizantly states that the deed was given in consideration of appellants taking care of respondent the remainder of his life, burying him and paying all expenses, and that this was the sole consideration for the deed and that the appellants immediately after receiving and recording the deed advised him that they were ready to take him home and thus failed to carry out their part of the bargain. The petition further states that "plaintiff is injured and defrauded by defendants, and he has no adequate remedy at law." State ex rel. v. Allen, 310 Mo. 378, 276 S.W. 877; Timmerman v. Architectural Iron Co., 318 Mo. 421, 1 S.W.2d 791; East St. Louis Ice & Cold Storage Co. v. Kuhlman, 238 Mo. 702; Grove v. Kansas City, 75 Mo. 675; Young v. Iron Co., 103 Mo. 327; Donaldson v. Butler County, 98 Mo. 166; Haseltine v. Smith, 154 Mo. 413; Broyhill v. Norton, 175 Mo. 202; State ex rel. v. Delaney, 122 Mo.App. 243; Alter v. Frick, 62 Mo.App. 453; Murphy v. Ins. Co., 70 Mo.App. 82. Also, the court in Hyder v. Chicago, M. & St. P. Ry. Co., 219 Mo.App. 465, 275 S.W. 977; Becke v. Forsee (Mo. App.), 199 S.W. 734; Armstrong v. Railroad, 195 Mo.App. 83, 190 S.W. 944; State ex rel. v. Sims, 286 S.W. 832, 274 S.W. 359, 309 Mo. 18; Kelsey v. Israel, 298 S.W. 1065; Warner v. Oriel Glass Co., 8 S.W.2d 846; Foster v. Chicago, B. & Q. R. Co., 14 S.W.2d 561. A total failure of consideration is alleged and also fraud. (2) As to the third and fourth points in appellants' brief, they are not in any position to argue that when a deed is based on a consideration of care and support to be rendered by the grantee, it is error to set aside and cancel such deed where there has been partial performance, for the reason that in their answer they denied that the deed was given in consideration of a promise by them that they would care for the respondent as long as he lived and set up an affirmative defense to the effect that the deed was given in consideration of past care and labor done on their part for respondent. Smith v. Culligan, 74 Mo. 387; Lee v. Dodd, 20 Mo.App. 271; Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267; Fugate v. Pierce, 49 Mo. 441; Ledbetter v. Ledbetter, 88 Mo. 60; Vaughn v. Conran, 20 S.W.2d 968. The test is whether or not the proof of one defense necessarily disproves the other. Vaughn v. Conran, 20 S.W.2d 968; Nelson v. Brodhack, 44 Mo. 599; 100 Am. Dec. 328; Keane v Kyne, 2 Mo.App. 317; Schaefer v. Causey, 8 Mo.App. 142; Wood v. Hilbish, 23 Mo.App. 389; Atterbury v. Hendricks, 127 Mo.App. 47. (3) The court below was correct in ruling as it did as to the merits of this case. The consideration of a deed is open to investigation. The clause acknowledging the payment of the purchase money is somewhat in the nature of a receipt and is subject to parol explanation. Chambers v. Chambers, 227 Mo. 287; Strong v. Whybark, 204 Mo. 347. The failure of a grantee to perform his promise, in consideration of a transfer of land, to support the grantor, may be presented as a ground for relief on behalf of the grantor as evidencing fraud in the transaction. Courts of equity have a marked tendency, owing to the usual hardships of these cases, to afford the grantor relief, particularly where he is of advanced years and without other means, and frequently proceed upon apparently all of these grounds (fraud, failure of consideration, etc.) without definitely relying upon any one of them. Further, it has been held that, if the rescission of the contract cannot be referred to any other head of equity jurisprudence, it will be proper to presume that it was made in the first instance with fraudulent intent. 18 C. J. 169. In this case the appellants obtained the deed and very soon thereafter, in fact within two weeks or less time, refused to keep respondent and informed him that they were ready to take him home.

Walker, J. Blair, P. J., concurs; White, J., concurs in result.

OPINION

WALKER

This is a suit to cancel a deed to land in Pulaski County, claimed to be owned by the plaintiff. Upon a trial before the court a judgment was rendered, setting aside the deed, from which the defendants have appealed.

The plaintiff, a bachelor, seventy-seven years of age, had lived practically all of his life on the farm, the deed to eighty acres of which it is sought to cancel. The defendants are husband and wife, the latter being a niece of the plaintiff. In February, 1927, the plaintiff became ill and was removed to the home of the defendants for care and treatment. The plaintiff contends that during his illness and while confined to his bed the defendants brought a notary and a prepared deed from him to them, conveying the land therein described in consideration of their agreement and promise to care for and support him during the remainder of his life and to defray his funeral expenses upon his death; that relying upon these promises he made the deed; that this deed was made to the defendants as husband and wife; and upon its execution was, during his illness, filed and recorded in the Recorder's office of Pulaski County. That a short time thereafter, upon the plaintiff's partial recovery from his illness, the defendants notified him that they could not...