Gibson v. Smith

• Decision Date: 08 June 1968
• Docket Number: No. 2,No. 52667,52667,2
• Parties: Earven GIBSON, Appellant, v. James W. SMITH and Annie Mae Smith, Respondents
• Court: Missouri Supreme Court

Page 321

422 S.W.2d 321

Earven GIBSON, Appellant, v. James W. SMITH and Annie Mae Smith, Respondents.

No. 52667.

Supreme Court of Missouri, Division No. 2.

June 8, 1968.

Thomas M. Gioia, St. Louis, for appellant.

Thompson, Walter & Shewmaker, Lewis M. Blanton, St. Louis, for respondents.

ELGIN T. FULLER, Special Judge.

Earven Gibson, appellant and plaintiff below, brings this action in equity to set aside a general warranty deed executed by Walter Leon Smith (now deceased) to respondents, James W. Smith and Annie Mae Smith, his wife. The trial court found for the defendants. This suit to have the deed as aside involves title to realty in a constitutional sense so as to confer exclusive jurisdiction on this court. ¹

This action in equity is to be reviewed do novo on the record and we must weigh the evidence, make our own findings of fact, draw our own conclusions of law and enter or direct the entry of the judgment so indicated. In this character of appeal we are triers of the facts as well as of the law. ²

The facts need more attention than the law. No new pronouncements of the law are required, for the law controlling the fact issues of this case have been declared by this court on many occasions. The witnesses were not restrained or limited by any consideration of our Dead Man's Statute or in any way handicapped by the rules pertaining to hearsay evidence. All witnesses were given a free rein.

The plaintiff is a half-brother of the grantor, Walter Smith. He was also the residuary legatee and devisee of Walter Smith's will, which was executed August 2, 1963. Walter died December 24, 1963. But on the 28th day of June, 1963, Walter conveyed by warranty deed the only real estate he owned to defendants James W. Smith and Annie Mae Smith. The real estate was the west 30 feet of Lot 3 and the east 10 feet of Lot 4 in Block 3831 of the City of St. Louis, upon which was located his dwelling known and numbered as 5928 Plymouth Avenue. The warranty deed was recorded August 8, 1963.

Plaintiff's petition alleged that on or about June 28, 1963, defendants, for the purpose of defrauding Walter Leon Smith out of his 'just rights', did persuade, unduly influence and induce him to convey the real property for a consideration of $10.00; that the transaction and conveyance were a scheme to obtain the without consideration and to defraud Plaintiff; that said deed was without consideration and therefore void; that shortly before his death Walter Smith believed himself to be the owner of said real estate and expressed his desire and intention that plaintiff should, at Walter's death, inherit the real estate from him. Plaintiff asked that the warranty deed conveying the property to defendants be set aside and that the court declare title in the plaintiff.

These charges call for a rather careful review of the evidence. Walter Smith and his elderly mother lived in the dwelling at 5928 Plymouth Avenue, St. Louis, Missouri. He had purchased the home in 1955 for $11,750.00. In 1932 defendant, James W. Smith, came from his home in Clarksdale, Mississippi, to live with his cousin, Walter Smith. After living with Walter in St. Louis for four years he then moved to Chicago, Illinois, where he is now self-employed in the cleaning business. James returned on frequent visists to St. Louis and stayed at the home of Walter. James' mother, Edna Smith, also resided in Chicago and has been in Walter's home many times though the years. She and Essie Frazier, a relative of James, spent weekends at Walter's home.

Walter's troubles really began at the time he suffered a paralytic stroke about August 1960. James' mother, Edna Smith, and Essie Frazier, a cousin of Edna Smith, came to Walter's home and, when not taking care of Walter's mother, visted Walter in the hospital. On that occasion they remained at Walter's home about a month James came a little later and at that time Walter was walking with the aid of a cane, but had hopes of returning to work, and in fact did return to his employment with Shell Oil Company. After a few days James returned to Chicago.

In 1962, probably in July, Walter's mother had a paralytic stroke and two days later Walter had his second stroke. Willie B. Smith, a first cousin of Walter who was a resident of St. Louis, and a brother of Edna Smith, had Walter and his mother taken to a hospital. Willie did the best he could, durind their illness, to keep Walter's untilities and small bills paid. Edna Smith, Essie Frazier and James came from Chicago to be with Walter and Walter's mother. They visted the two at the hospital. Walter was worried about the monthly home payments due on the note which was secured by a deed of turst. Walter asked James about James' financial condition in the event Walter would need help or ran into any financial trouble and if James would make sure the Walter would not lose his house. Walter wanted to be sure that he did not miss any payment on his note. James told Walter that he ws sure he would be able to make the home payments and that he would not fail to make the monthly payments and that he, James, would pay the note if it became necessary. At this time Walter said nothing about deeding the property to James. James then returned to Chicago. His mother and Essie Frazier remained to care for Walter and his mother. Edna, Essie Frazier and defendant, Annie Mae Smith, took care of Walter and his mother muth of the time until Walter's death. When his mother and his counsin, Essie, were taking care of Walter, James sent money to them to help pay bills and expenses of the home. On one occasion James sent one hundred dollars to Willie Smith to pay either a delinquent income tax of Walter's or the monthly payment on the home. When Walter's mother again became ill, James came to St. Louis. At that time Walter was receiving $105.00 Social Security and felt that that would pay the ordinary living expenses, but he was worried again about the $115.00 monthly payment due on the purchase price of his home. Walter told James, 'I don't know if I will be able to go back to work again, and if you have to pay hundreds of dollars for me, I don't know if I will ever be able to pay you. In case that would happen I would just have to deed the house over to you * * * the house would be yours to compensate you * * *.' James said, 'That is okay.' James then went back to his home in Chicago.

Defendant Annie Mae Smith came to Walter's home in December, 1962 and took care of Walter for about three weeks. Edna was there from March to July, 1963. Essie and Edna were there looking after Walter and his mother from Easter Sunday until sometime in July, 1963. James continued to send money to help pay the expenses. James testified that he paid between $1,000 and $1,500 on behalf of Walter; that he had agreed to pay any bills that Walter could not pay out of Walter's and his mother's monthly checks, but that the main thing was payment on the 'house note'. On one occasion he paid Millie Johnson $60.00 for three weeks' work in looking after Walter. Walter had employed her at twenty dollars a week, but had failed to pay her for a three-week period.

Several weeks before Walter conveyed the property to James and his wife, James' mother, who was then looking after Walter, telephoned James at Chicago and told him that Walter wanted to see James and to talk to him about 'deeding the house to James.' James had a vaction due him in a few weeks and wanted to wait until that time to come to St. Louis. After one or two other similar calls from his mother, James talked to a lawyer in Chicago and asked if he knew a lawyer in St. Louis who could take care of that kind of business. Attorney Robert E. Wilson, Jr., of St. Louis, was chosen. Mr. Wilson went to Walter's home and told him the purpose of his call. Walter told Wilson that he had a nephew in Chicago whom he had practically raised and had brought the young man from Mississippi to St. Louis, and that he wanted him to have his property; that he wanted to prepare for the balance of his life and to see that his, Walter's, mother was taken care of. Attorney Wilson then prepared a Warranty Deed. On one of his trips to Walter's home he had seen Araminta Smith the Assistant Director of the Social Service Department at Malcolm Bliss Hospital. She had a Masteres Degree from Washington University in social work. She is not related to any of the parties or witnesses in this case. Her duties necessitated her being in Walter Smith's home from twice a week to sometimes every day of the week. Walter had told Miss Araminta Smith of his plan to deed the property to James. Araminta testified, 'At that itme he told me definitely that he knew this was a good plan, and that James Smith would really take care of him because he was a good man and that he owned a cleaning establishment in Chicago and he had a fine family, and he was impressing me that this was a good plan'. Walter told Araminta the date that the attorney was going to return to Walter's house. The attorney also asked Araminta if she would meet him at Walter's home. Wilson read the deed to Walter and asked him if that was the way he wanted it. Walter said that it was, and signed the deed. Mr. Wilson had also prepared a second writing entitled 'Contract for Support in Consideration of Conveyance with Reverter Provisions'. Wilson read and explained this document to Walter. Mr. Wilson, Araminta Smith and Mary Witherspoon, a neighbor and who was sometimes referred to at the trial as the 'stocky lady who lived on a side street', attest to an unusual occurrence immediately following the signing of the deed by Walter. Mrs. Witherspoon herself relates the incident about as well as the others who were present:

'Well, the morning they came in with the papers they asked me would I be excused, that they--they said they got a little business to transact and they said, 'Would you go out?' I said, 'No, I am not going out'. I looked around at...