Franklin v. Moss

• Decision Date: 05 February 1937
• Docket Number: No. 34392.,34392.
• Citation: 101 S.W.2d 711
• Parties: FRANKLIN v. MOSS et al.
• Court: Missouri Supreme Court

101 S.W.2d 711

FRANKLIN v. MOSS et al.

No. 34392.

Supreme Court of Missouri, Division No. 1.

February 5, 1937.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Action in equity by U. G. Franklin against Ruth Moss and others to cancel a deed. From a decree dismissing the plaintiff's petition, the plaintiff appeals.

Affirmed.

Chas. W. Green, of De Soto, and R. J. Kratky, of St. Louis, for appellant.

Edgar & Matthes, of De Soto, and R. E. Kleinschmidt, of Hillsboro, for respondents.

HYDE, Commissioner.

This is an action in equity to cancel a deed to nineteen acres of land in Jefferson county executed by plaintiff to defendant Ruth Moss. Plaintiff alleged that the deed was procured from him through the fraud and undue influence of the Moss family. The other defendants are the trustee, beneficiary, and present owner of an obligation in a deed of trust on the land. Defendants' answer stated that the conveyance was a gift. The court found that there was no fraud or undue influence; and that the deed "was a valid and binding gift." The decree dismissed plaintiff's petition, and plaintiff has appealed therefrom.

Plaintiff, who was 71 years old at the time this case was tried in 1934, had been a street car motorman in St. Louis for many years. Prior to 1929, he had purchased two tracts of land near De Soto; a nineteen-acre unimproved tract and an eight-acre tract, upon which he lived with his wife, to whom he was married in 1885. The title to both tracts was in entirety. In the fall of 1929, he separated from his wife but continued to work for the street car company in St. Louis until the latter part of 1930, when he was retired on a pension. Soon after the separation, he employed R. E. Kleinschmidt, an attorney of Hillsboro, to bring a divorce suit against his wife. During this time, plaintiff was on friendly terms with defendants John and Hettie Moss, and their daughter, defendant Ruth Moss, who owned and lived on a small farm adjoining plaintiff's nineteen-acre tract.

Plaintiff testified concerning his relations with the Moss family, who will hereinafter be referred to as defendants, as follows: "They were the best friend I ever had. * * * When I would come down (from St. Louis), they would meet me at the train, and I would go up to their house. * * * In the fall of 1929 * * * is the first time they came down after me, and took me up to the house. * * * It continued after that. They would come down and see me at the train. * * * Mrs. Moss told me that Mrs. Franklin told her that I wasn't supporting her, and wasn't giving her sufficient money, and that I was running around, and I was getting in trouble in St. Louis * * * Mrs. Moss and Mr. Moss said I could stay up at their house. * * * They continued to tell me about Mrs. Franklin talking about me, and about her telling the neighbors about me not supporting her, and that something would happen to me if I stayed around there. They told me I had better be careful or she might kill me. * * * They said she would kill me. I was afraid I would be killed if I stayed there. * * * Mr. and Mrs. Moss asked me to come down and make my home with them, and in November I came down there. They told me I could make my home with them as long as I lived, and Mr. Moss told me I would have a home with them as long as I wanted it. * * * They asked me to come down and make my home with them. * * * They would all ask me to come down and live with them, and make my home with them."

Plaintiff's wife testified that the Moss family visited her frequently when plaintiff was in St. Louis and told her things about him. She said they were the cause of the trouble. During 1930, whether before or after the divorce suit was commenced is not clear, plaintiff's wife was sent to the asylum at Farmington. Some time later that year she was discharged from the asylum and was declared sane by the probate court of Jeffeson county. The divorce suit was dismissed because of her insanity. No other suit was thereafter filed, but on December 8, 1930, a property settlement was made by plaintiff and his wife by which she became the owner of the eight-acre tract and he became the owner of the nineteen-acre tract. This agreement recited that property rights, and rights to support or alimony, were forever settled. Plaintiff continued to live with the Moss family for about three years but did not ever get a divorce from his wife. He did not live with her or furnish her any support either before or after he left the Moss family. Plaintiff stated that the defendants often urged him to get a divorce; that "in 1932, Ruth Moss asked me why I didn't get a divorce"; that "she spoke about that two or three times"; that "I told him (Mr. Moss) that the divorce suit didn't bother me; and that I wouldn't pay any attorney fees or any witness fees as I didn't care anything about it."

On January 2, 1931, less than a month after his property settlement, plaintiff went to Mr. Kleinschmidt's office at Hillsboro and asked him to make a deed to the nineteen-acre tract to Ruth Moss. She was not present but her father took plaintiff to Hillsboro. He testified that he neither knew why plaintiff wanted to go there nor that plaintiff intended to make a deed to his daughter until he got there. Plaintiff, however, testified that Mr. Moss told Mr. Kleinschmidt that he (plaintiff) wanted to make a deed to this property. Plaintiff said: "Mr. Kleinschmidt asked we why I wanted to make this deed to this girl, and I told him I wanted to make it to her. * * * I told him what I wanted done, and he said, `Why don't you leave it to me or that girl (the stenographer) over there?' * * * I told him I wanted to deed it to her and save my property. * * * That is what I wanted to do with it, at the time. Mr. and Mrs. Moss said I could have a home with them." Plaintiff paid the recording fees and instructed the recorder to mail the deed to Ruth Moss. Plaintiff further testified on cross-examination, as follows:

"Q. You wanted to give this property to Ruth Moss? A. Yes, sir, I wanted to make a deed to her at that time. * * *

"Q. Did you tell Mr. Kleinschmidt, on that occasion, that you were afraid of your wife getting ahold of this property, and that was your reason for wanting to deed it? A. No, sir. * * *.

"Q. You did tell Kleinschmidt that you wanted to give this property to Ruth Moss? A. Yes, sir. * * *

"Q. Is that the only reason you deeded this property to Ruth? A. Well, I intended to make my home with them as long as I lived."

The deed stated that it was "in consideration of the sum of One Dollar and other valuable considerations" and that "the grantor herein, U. G. Franklin, is married but the property rights between him and his wife were settled in a contract dated December 8th, 1930." Defendant Ruth Moss testified that "in the first place, it was just as a joke. He said, `Ruth, I will sell you that place for twenty-five dollars,' and I said, `If I can get twenty-five dollars, I will take you up.' Nothing more was said about it for a while, and afterwards, he deeded it to me. When I received the deed, I happened to have twenty-five dollars, and I went and gave it to him. * * * He said one day that that place belonged to me. He said, `It is yours,' and I said, `How does it happen to be mine,' and he says, `I went out and deeded it to you.' I said, `What did you do that for', and he said, `Well, I deeded it to you because I wanted you to have it, and I didn't want the old lady to feed it to the hogs.'" Her father and brother corroborated this and gave testimony to the effect that the twenty-five dollars was "to pay the expenses of the deed." Plaintiff denied that he was paid anything. Mr. Moss said that when plaintiff first came there "the understanding was that he was to board there while the trial was going on between him and his wife," that "it was to be something like about twenty-five or thirty dollars a month," but that he never paid any board and they did not ask for it; and that one of the reasons why they did not ask him was because he deeded this land to Ruth after he had been there about two months.

Mr. Kleinschmidt, who made the deed, testified without objection concerning the transaction, as follows: "When he said he wanted to deed this property away, I asked him a few questions * * * and asked him what he wanted to do that for, and I also asked him whether Moss was trying to get him to do that, and he said he didn't want to have any interest in it, because he was afraid his wife might get it, and I told him that the settlement, and the deeds on record were such that his wife couldn't have any more claim on the property. * * * He wanted to give this property to this girl. I said to him, `You are liable to change your mind about this.' * * * I suggested he deed it to her in trust for him, and he said he didn't want to do that. I then told him he had better study over it a few days, and he told me he had already studied it over, and that he wanted me to make up the deed, and I wrote it for him just as he wanted it. * * * He said Mr. Moss was a nice man, and he was staying there and not paying him, and I asked him if he wanted to reserve a life estate, and he said he didn't because he wanted to give...