Goodman v. Griffith

• Decision Date: 23 December 1911
• Citation: 142 S.W. 259,238 Mo. 706
• Parties: CLARISSA E. GOODMAN et al., Plaintiffs in Error, v. JAMES E. GRIFFITH et al
• Court: Missouri Supreme Court

142 S.W. 259

238 Mo. 706

CLARISSA E. GOODMAN et al., Plaintiffs in Error, v. JAMES E. GRIFFITH et al

Supreme Court of Missouri, First Division

December 23, 1911

Error to Louisiana Court of Common Pleas. -- Hon. David H. Eby Judge.

Affirmed.

Ball & Sparrow and Dempsey & McGinnis for plaintiffs in error.

(1) The court permitted, over the objections of plaintiffs incompetent and illegal evidence, especially as to the admission of evidence of J. E. Thompson, lawyer, who wrote the deed in question for deceased. R. S. 1909, sec. 6362; State v. Dawson, 90 Mo. 149; 1 Greenleaf on Evidence, sec. 240; Henry v. Buddicks, 81 Mo.App 360; Ingerham v. Weatherman, 79 Mo.App. 480; Sweet v. Owens, 109 Mo. 1. (2) The court permitted illegal and incompetent evidence as to the consideration of the deed. (3) The findings and judgment of the trial court should have been for the plaintiffs and against the defendants. Therefore, the findings and judgment of the court are erroneous. Ennis v. Burnham, 159 Mo. 494; Turner v. Turner, 44 Mo. 535; Cadwallader v. West, 48 Mo. 483; Ranken v. Patton, 65 Mo. 378; Ryan v. Ryan, 174 Mo. 279; Reed v. Carroll, 82 Mo.App. 102; Mowry v. Norman, 204 Mo. 173; Bradford v. Blossom, 190 Mo. 110; Roberts v. Bartlett, 190 Mo. 680 (but see p. 700); Durfee v. Bartlett, 57 Mo. 374; Leavitt v. LaForce, 71 Mo. 353; Armstrong v. Logan, 115 Mo. 465; Dausman v. Ranken, 89 Mo. 677; Reid v. Carroll, 82 Mo.App. 102.

J. D. Hostetter and J. E. Thompson for defendants in error.

(1) Although the trial court ruled that Thompson's evidence so far as communications made to him by Mrs. Bralley, was incompetent, plaintiffs have seen fit to collate authorities and make this point as though the court's ruling had been against them. The statute is only leveled at communications made by a client to the attorney, and this the court upheld. (2) The testimony given by Mrs. Goodman as to conversations had with her mother, as to the circumstances under which the deed was executed, outside of the presence and hearing of defendants, was wholly incompetent, and the court erred in admitting such testimony. Such testimony is only admissible to show the state of the affections of the testator or grantor, and never as proof of the facts stated, and where, as in this case, the mind of the testator or grantor is not in any manner attacked or brought in question, they are not admissible for any purpose. Such declarations have no probative force to establish undue influence, etc. They are never admissible as evidence of the facts mentioned in the declaration. Jones v. Thomas, 218 Mo. 543; Jones v. Roberts, 37 Mo.App. 163; Doherty v. Gilmore, 136 Mo. 414; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 480; Schierbaum v. Schemme, 157 Mo. 1. (3) There is no presumption against a voluntary conveyance from a parent to a child. Doherty v. Noble, 138 Mo. 25. There is ordinarily no presumption that the gift of a parent to his child is invalid when the parent is of sound mind. Hamilton v. Armstrong, 120 Mo. 616. (3) The law presumes much more in favor of a delivery of a deed in cases of voluntary settlement in favor of a wife, child or near relative, than it does in ordinary cases of bargain and sale between strangers. Rumsey v. Otis, 133 Mo. 95; Hamilton v. Armstrong, 120 Mo. 616. (4) The consideration clause in a deed is always open to explanation, and it is always competent to show what the actual consideration of a deed is. Kincaid v. Irvine, 140 Mo. 615; O'Day v. Conn, 131 Mo. 321; Squier v. Evans, 127 Mo. 514; Bank v. Aull, 80 Mo. 201; Baile v. Insurance Co., 73 Mo. 371. (5) The issue of undue influence being one of fraud or bad faith, it devolves upon him who charges undue influence to prove it. Carl v. Gabel, 120 Mo. 297; Doherty v. Gilmore, 136 Mo. 414; McFadin v. Catron, 138 Mo. 219. (6) While fraud may be deduced from the circumstances of the case and the acts of the parties, yet mere suspicion is not sufficient, nor can it be presumed, but must be established as an affirmative fact, and if they consist as well with honesty as with fraud, the transaction should be held honest. Bank v. Worthington, 145 Mo. 91; Chapman v. McIlwrath, 77 Mo. 38; Webb Admr. v. Darby, 94 Mo. 621. (7) Even admitting the defendant Griffith had influence over his mother (which we do not, other than as ordinarily a son has), there is no evidence that he exercised such influence, not even in the testimony of Mrs. Goodman. "It is not the existence, but the exertion of that improper influence, which invalidates the transaction." Sunderland v. Hood, 84 Mo. 297; Brinkman v. Rueggesick, 71 Mo. 556; Doherty v. Noble, 138 Mo. 32; McKinley v. Hensley, 74 Mo. 332; Jackson v. Hardin, 83 Mo. 185. (8) The fact that an old man acts under the advice of his son in his ordinary business affairs, and is influenced by his affections for him, does not tend to prove undue influence in his execution of a deed to his son. Francis v. Wilkinson, 147 Ill. 370. The settled meaning of undue influence in this State is such influence "as amounts to over-persuasion, coercion of force destroying the will power of the testator. It is not merely the influence of affection, nor the desire of gratifying the wishes of one beloved or trusted by the testator." Tibbe v. Kamp et al., 154 Mo. 545. It must amount to moral coercion. Norton v. Paxton, 110 Mo. 456; Carl v. Gabel, 120 Mo. 297; Luebbert v. Brockmeyer, 138 S.W. 92; Turner v. Anderson, 236 Mo. 523. Such a fiduciary relation between parent and child as casts on the child the burden of proving that the conveyance to him from the parent was the free will of the parent, does not arise merely from the fact that an aged and infirm parent is under the ministering care of a son who attends to the business of the parent as to renting his farm and negotiating a loan. Huffman v. Huffman, 217 Mo. 182; Winn v. Grier, 217 Mo. 420; Jones v. Thomas, 218 Mo. 508.

OPINION

GRAVES, P. J.

Action in equity to set aside a deed to certain real estate in Pike county, made July 2, 1903, by Emily Bralley to her son James E. Griffith and his wife, Kate Griffith, and to partition the said lands. The petition also speaks of a will executed at the same time. The charging part of plaintiffs' bill in equity, in so far as is material, is as follows:

"Plaintiffs further represent to the court that soon after the death of the said George L. Bralley, the said husband of the said Emily Bralley, deceased, the said defendant, James E. Griffith, moved from Bowling Green, Missouri, to the city of Louisiana, Missouri, and into the home of his mother, Emily Bralley, and continued to reside in said home until the death of his mother, Emily Bralley. That said Emily Bralley was quite old and directly under the influence of the said defendant James E. Griffith; that the said defendant, James E. Griffith, contriving and designing to surreptitiously divest and deprive plaintiffs, who, with the exception of James A. Goodman, A. D. Cloyd and M. M. Gillum, are the children, grandchildren and great-grandchildren of the said Emily Bralley, deceased, of any interest in her estate, by false and fraudulent representations, and by a systematic course of either remaining with her, or having some member of his family do so, during all the time, thereby trying to prevent the said Emily Bralley, deceased, from having open and free communication with her kindred and friends, and especially her daughter, Clarissa Eugenie Goodman, and by undue influence, did, on the 2nd day of July, 1903, persuade, entice and induce the said Emily Bralley to make to said defendants a deed to the following described real estate, which said deed is in words and figures as follows, to-wit: [Deed omitted and will omitted.]

"That said defendant James E. Griffith, for the purpose of carrying out his unfair designs and the control and influence he had over his said mother, persuaded and influenced her to go, and he did take her, to the city of Bowling Green, Pike county, Missouri, to the home of J. E. Thompson, son-in-law of defendants, and a lawyer by profession, and while she was there at the home of said Thompson, he prepared and in connection with the said defendant James E. Griffith, persuaded and induced the said Emily Bralley to execute said deed and said last named document called a 'will.' That said pretended deed and said pretended will were executed on the same day and at the same time and simultaneously one with the other.

"Plaintiffs further state and charge that there was no consideration paid the said Emily Bralley for the execution of said pretended deed, and that the said pretended deed and said pretended will, when so executed as aforesaid, were left in the possession of said J. E. Thompson and were to be returned to the said Emily Bralley when she so directed, but that said Thompson and said defendant, James E. Griffith, though often requested to return said pretended deed and said pretended will, refused so to do, but retained the same, and immediately upon the death of the said Emily Bralley, the said Thompson had said deed recorded in the recorder's office of Pike county, Missouri.

"That said defendants, especially the said James E. Griffith, acted as above stated in conjunction with the said J. E. Thompson for the purpose of inducing his said mother to deed and will to defendants her property, for the purpose of defrauding his sister and nephews and nieces, the plaintiffs in this cause, out of their share in the estate of the said Emily Bralley, deceased."

The prayer was that said deed be set aside and for naught held and that partition be made of the real estate described.

The answer was (1) a general denial, and (2) the defendants averred the due execution and delivery of said deed and that the same was the...