Gist v. Pylant, 28171.

• Citation: 25 S.W.2d 479
• Decision Date: 05 March 1930
• Docket Number: No. 28171.,28171.
• Parties: GIST v. PYLANT.
• Court: United States State Supreme Court of Missouri

25 S.W.2d 479

GIST v. PYLANT.

No. 28171.

Supreme Court of Missouri, Division No. 1.

March 5, 1930.

Appeal from Circuit Court, Dunklin County; E. P. Dorris, Judge.

Suit by J. P. Gist against Minnie Pylant. Judgment for plaintiff, and defendant appeals.

Affirmed.

McKay & McKay, of Kennett, for appellant.

T. R. R. Ely and Tom Ely, Jr., both of Kennett, for respondent.

GANTT, J.

Suit to cancel a deed alleged to have been executed by plaintiff in consideration of love and affection whereby the land described in the petition was conveyed to defendant, reserving to grantor a life estate. Pertinent parts of the petition follow:

"That he is now and was on the 26th day of June, 1926, the owner in fee simple of the Southeast Quarter of the Northeast Quarter of Section Twenty, Township Sixteen North, Range Seven East."

"Plaintiff further states that on July 6th, 1926, the defendant filed in the Recorder's office of Dunklin County, Missouri, a deed to said land, purported to be executed by the plaintiff to the defendant and purported to convey to defendant, from plaintiff the above described lands which said deed was duly recorded in Record Book 91, at page 67, and purports to have been executed and acknowledged on June 26, 1926."

"Plaintiff further states that he has no knowledge of having executed said deed and that he did not sign or execute same nor receive any consideration for said alleged conveyance, and that he did not authorize any one to sign same for him, and that it was a cloud upon his title."

"Plaintiff further states that he is an old man, eighty years old, infirm, and that he can neither hear or understand an ordinary conversation and that he can neither read or write and has never been able to write his name. That if his name was signed to said deed in the presence of the witness that the deed purported to have been witnessed by said witness and was acknowledged by the Notary before whom the deed purports to have been acknowledged, that he did not intend that they should take his acknowledgment or witness his signature to said deed, and that he did not understand that he was doing so, and that if said deed was witnessed and acknowledged by the Notary and the witness it was because this plaintiff had practiced a fraud upon him."

"Plaintiff further states that the defendant for a long time prior to the alleged execution of this deed had endeavored to get him to transfer this property to her, and that he had refused to do so. That not long before the date of said deed in the town of Kennett in the State of Missouri, they presented him with a deed and asked him to sign same and he refused to do so."

"Plaintiff further states that this defendant and one Walter Gist combined and conspired to procure a title to this and other property from this plaintiff."

Defendant answered by general denial. The court found plaintiff did not intend to acknowledge the deed, that he did not understand he was doing so, and that he did not execute the deed. Judgment was for plaintiff canceling the deed. Defendant appealed.

I. The petition was not challenged below, but defendant here insists it does not state facts sufficient to constitute a cause of action.

The petition is not a mere charge of fraud. In effect it is charged if plaintiff signed the deed he did so as the result of fraud practiced upon him; that he did not know what he was doing and did not intend to convey his land, and for these reasons did not execute the deed. To deal with one of extreme mental weakness and induce him to convey his land without consideration is of itself a fraud. The petition is good against an attack first made after decree.

II. Defendant next contends the proof is not sufficient to sustain the judgment.

Plaintiff was eighty years of age, almost deaf, never married, and had for many years lived on his eighty-acre farm in Dunklin county. His nephew, Walter Gist, lived on a farm near by, and Minnie Pylant, a niece of plaintiff, and sister of Walter, lived on a farm in Arkansas and about six miles from plaintiff's farm. Walter and Minnie (defendant) exchanged visits with plaintiff, and their relations were friendly until the institution of this suit. There are other nephews and nieces, but Walter and Minnie (defendant) testified plaintiff had frequently stated he wanted them to have his farm at his death. This was the only land owned by plaintiff.

On April 29, 1926, plaintiff, in company with defendant, her husband, and Walter Gist, appeared at the law office of Mr. John T. McKay in Kennett, Mo. They informed McKay that plaintiff wanted deeds prepared conveying forty acres of his land to Walter and forty acres to Minnie (defendant), reserving a life estate. Mr. McKay prepared the deeds and started to read them, when plaintiff stated he would not sign the deeds; that he had promised to deed the farm to Allen (the man residing on the farm). Thereupon, the unsigned deeds were delivered to defendant, who paid Mr. McKay for his services.

Evidence for defendant tended to show that on Friday, June 25, 1926, plaintiff visited defendant, remaining overnight; that the following morning he went to the nearby home of Clancy Pylant, son of defendant, and inquired if Clancy was going to Monette, Ark., that afternoon; that when so informed, he stated he would go with him; that after dinner, and when they started, plaintiff directed a stop at Minnie's (defendant) to get the papers; that they there stopped, got the deeds, and went to the office of Squire Meadows in Monette; that the deeds were read slowly and distinctly to plaintiff by the squire, who informed plaintiff that a life estate was reserved for him; that the squire then signed plaintiff's name to the deeds, and plaintiff made his mark, and the signature was then witnessed by the squire; that the acknowledgment was taken by a notary public.

Squire Meadows testified as follows: "I have known him (plaintiff) for some twenty years or more. I presume he gets harder of hearing all the time. That is my observation. He does not remember like he used to. His mind isn't as active as it used to be. He seemed to understand what he was doing. I asked him and he said he did."

Plaintiff testified as follows:

"I was born after Polk was elected President. I cannot read. I never went to school but one day in my life; got no education at all. Cannot sign my name."

"Q. Did you make and execute a deed to your farm to Minnie Pylant and Walter Gist, forty acres each? A. No, no, no; they forged them, that is what they have done.

"Q. You don't know anything about it? A. No, no.

"Q. You never got anything for it? A. No, they can't get my place, no, unless they come in and get me out of the way.

"Q. Did you ever have any intention of deeding them the farm? A. No, sir.

"Q. Were you up here with them in Mr. McKay's office and they presented you with a deed and asked you to sign it? A. No, I don't recall it.

"Q. You don't recall being in Mr. McKay's office with Minnie Pylant? A. No.

"Q. Last spring? A. I don't recall, I can't recall nothing.

"Q. You can't recall then, if there is a deed on record here purporting to have been signed by you, it is not true, you didn't sign any deed? A. No. I never signed. I signed it perhaps for her at Monette for one hundred dollars.

"Q. For one hundred dollars? A. Yes, they said; she never told me what.

"Q. Did you ever authorize anybody to sign your name to a deed to your farm? A. No.

"Q. You did not? A. No, no, no.

"Q. How close do you live to Minnie Pylant? A. Why, I suppose about six miles.

"Q. She lives in Arkansas? A. Yes, sir.

"Q. And you live in Missouri? A. Yes, sir.

"Q. Does she visit you very often? A. No.

"Q. Since this deed was purported to have been made has she visited you? A. How is that?

"Q. Has she visited you since this deed was purported to have been made? A. No, sir.

"Q. You don't owe her anything? A. No, I don't owe her anything; I don't owe a man anywhere a dollar that I know of, unless it is for this suit I have on, Judge; my place is clear of indebtedness.

"Q. How long have you owned that farm? A. Well, now, I can't tell you that. I bought the farm from old man Langdon and Sarah Langdon, one hundred acres, and I gave my youngest brother part and the other part I have got.

"Q. You have got eighty acres? A. Yes, I have got eighty acres.

"Q. Are you a married man? A. No, sir.

"Q. Ever been married? A. No, sir.

"Q. Then you haven't any family, I guess? A. No, sir, I have stayed right there at home and worked and attended to my own business. I don't run around to beat anybody out of what they have got."

Cross-examination:

"Q. Do you know Meadows at Monette? A. No, sir, I don't.

"Q. You don't know Mr. Meadows? A. I don't know him; I have forgot him.

"Q. Do you remember being in the house of your niece, Mrs. Pylant, on the 26th day of June? A. How?

"Q. Do you remember going down to Mrs. Pylant's house on June 24th, 1926, the day before these deeds were made? A. No, I don't recall it.

"Q. Didn't you stay all night at Mrs. Pylant's the day before you went down to Monette, on Friday night before you went to Monette on Saturday afternoon? A. I don't recall that.

"Q. You do recall going. A. I know I stayed all night there one time, but I don't know what day or what night.

"Q. You have stayed there a number of times haven't you, Uncle Polk? A. No, I ain't. I have been there once or twice a year.

"Q. And you walked from your place down there? A. Yes, sir, I walked.

"Q. A distance of five or six miles. Now do you remember being at Mrs. Pylant's on Friday night and then going to Monette Saturday afternoon with Mrs. Pylant's son? You know him, don't you? A. Who?

"Q. With Mrs. Pylant's son? A. Yes, I went down there.

"Q. Did you go down to Monette with Clancy Pylant on Saturday afternoon? A. I think I went down there, but I don't recall what day it was or nothing of that kind.

"Q. You recall being down there, now you recall...