Growney v. O'Donnell

• Decision Date: 17 November 1917
• Docket Number: No. 18129.,18129.
• Citation: 198 S.W. 863,272 Mo. 167
• Parties: GROWNEY et al. v. O'DONNELL et al.
• Court: Missouri Supreme Court

198 S.W. 863

272 Mo. 167

GROWNEY et al. v. O'DONNELL et al.

No. 18129.

Supreme Court of Missouri. In Banc.

November 17, 1917.

Appeal from Circuit Court, Nodaway County; J. W. Peery, Special Judge.

Action by Elizabeth Growney and husband against Patrick O'Donnell and others, to set aside a deed. Judgment for defendants, and plaintiffs appeal. Affirmed.

P. L. Growney and J. H. Sayler, both of Maryville, for appellants. Cook & Cummins and Shinabargar, Blagg & Ellison, all of Maryville, for respondents.

GRAVES, J.

Plaintiff, the daughter of Patrick O'Donnell, deceased, joined therein by her husband, brings this action in equity to set aside a deed made by Patrick O'Donnell to his sons, Patrick J. and Joseph J. O'Donnell. The petition charges:

"That said Patrick O'Donnell (deceased) was, at the date of his death, the owner in fee of the northwest ¼ of the southwest quarter and the east half of the southwest quarter of section thirty (30), township sixty-three (63), of range thirty-four (34), in said Nodaway county, consisting of 120 acres and was residing thereon at the time of his death, and was also the owner in fee of 160 acres of land in Bottineau county, state of North Dakota, described as the southwest quarter of section fourteen (14), township one hundred and fifty-nine (159) north, of range eighty-two (82) west, being all the lands owned by the said deceased at said date. That said Patrick O'Donnell was aged about 75 years and infirm, and on April 16, 1909, did become seized with pneumonia fever and ailments incident thereto, and did become seriously and alarmingly ill from the beginning of his said sickness, with every indication of approaching demise, and did so continue and linger, partly conscious and unconscious, attended by a physician, the family and neighbors, until April 24, 1909, when he died. That during said sickness of deceased, to wit, on April 21, 1909, and while said Patrick O'Donnell was sick unto death as aforesaid, delirious from high fever attendant therewith, rendering him unconscious, weak of mind and body, and evidently approaching death, the said defendants Patrick O'Donnell and Joseph J. O'Donnell, fraudulently and wrongfully, and intending to cheat and defraud the other heirs at law of said Patrick O'Donnell, and especially this plaintiff, did induce, compel and cause the said Patrick O'Donnell to make purported deeds of conveyance to all of the said lands described as aforesaid to them, the said Patrick J. O'Donnell and Joseph J. O'Donnell. That said Patrick J. O'Donnell and Joseph J. O'Donnell, with the connivance and assistance of one Michael M. Calahan, a brother-in-law to them, and a son-in-law of deceased, did procure a lawyer from Maryville, the county seat of said county, and twelve miles distant from said O'Donnell's place of residence, and did, at the said O'Donnell home, at the hour of 12 o'clock at night, on the said date (April 21, 1909), cause to be made a deed of conveyance as aforesaid to the 120 acres of land aforesaid, situated in said Nodaway county described as aforesaid, for the recited consideration of `one dollar' and the further consideration, as recited in said deed, `the consideration in this deed is that the said parties of the second part shall pay to the said party of the first part one thousand dollars per year, during the term of his natural life, payable annually, on the first day of January of each and every year, which consideration is included in a deed between the same parties of even date herewith for 160 acres situated in Bottineau county, N. D.'; which

                                                   his
                deed purports to be signed `Patrick X O'Donnell'
                                                   mark
                

and witnessed by said `M. M. Calahan' and `T. A. Cummings,' and said deed was placed on record in the recorder's office of said county of Nodaway on the next morning (April 22, 1909) at 9 o'clock and 10 minutes a. m., by the said T. A. Cummings, and appears of record in Book 165, at page 13, in said office. That said land so conveyed by said deed, comprised the homestead of said Patrick O'Donnell. That said deed was not signed by the wife, Mary A. O'Donnell. That said deed to said land so made at said time was not the act and deed of the said Patrick O'Donnell. That no consideration whatever was paid by the defendants (grantees) to the said Patrick O'Donnell. That there was no delivery of the said deed by the said Patrick O'Donnell to defendants, or to any one of them, or to any one for them; but all that was done relating to said deed or deeds was the fraudulent and wrongful acts of the said defendants, assisted, advised, and directed by the said M. M. Calahan, with his employed counsel, said T. A. Cummings, and all with the intent, design, and purpose to cheat and defraud the other heirs at law of the said Patrick O'Donnell, and especially this plaintiff, and is a cloud on her interest and title therein."

The answer of the two sons put in issue all the charges in the petition contained. The wife and widow filed a separate answer, in which she says that she understood when the deed was made that she was left her dower interest in the land, and that she only claimed such interest. She admits that the land was the homestead. The chancellor nisi found against the plaintiff on the charges preferred against the defendants, in the plaintiff's petition contained, and also found against the defendants' claim that they were entitled to the land, subject only to the dower interest of their mother. The finding of the court was to the effect that the wife had not signed the deed; that she had a homestead interest therein, and also had a dower interest in the surplus, if the homestead interest set off to her did not exceed one-third of the whole. In the interlocutory decree the findings are thus stated:

"That on the 21st day of April, 1909, the said Patrick O'Donnell conveyed by warranty deed the real estate hereinbefore described to the defendants Patrick J. O'Donnell and Joseph J. O'Donnell: that at the time of said conveyance the said Patrick O'Donnell, now deceased, had mental capacity sufficient to make said conveyance, and fully understood the character and nature thereof, and that in the execution and delivery of said conveyance he, the said Patrick O'Donnell, was free from any undue influence or fraud on the part of any of the defendants by which he was induced to make said conveyance, and that the same was a legal and valid conveyance of said described land to the defendants Patrick J. O'Donnell and Joseph J. O"Donnell, except as to the homestead interest of said Patrick O'Donnell as hereinafter found and stated, and except as to the dower interest of Mary A. O'Donnell, the wife, and now the widow, of said Patrick O'Donnell, deceased, who did not join in said conveyance. The court further finds that the real estate hereinbefore described embraced and comprised the homestead of said Patrick O'Donnell, to the extent and value of fifteen hundred ($1,500.00) dollars, and that by reason of the failure of the defendant Mary A. O'Donnell, wife of said Patrick O'Donnell, to join in said conveyance, the same was invalid and void as to the homestead interest to the extent and value of fifteen hundred ($1,500.00) dollars, and was insufficient to convey said homestead interest; that the land hereinbefore described, is of greater value than fifteen hundred ($1,500.00) dollars, and that said deed and conveyance hereinbefore mentioned was legal and valid as to the excess of said land, and as to all of said land over and above the said homestead of the value of fifteen hundred ($1,500.00) dollars, subject, however, to the dower interest of the defendant Mary A. O'Donnell, if any, in such excess and part of said land over and above said homestead interest. The court further finds that the defendant Mary A. O'Donnell is entitled to have admeasured and set off, out of said land a homestead to the extent of fifteen hundred ($1,500.00) dollars, and if such homestead of the value aforesaid is less than a one-third (1/3) interest in said land, then she is entitled to have set off to her one-third (1/3) interest therein as dower, but the amount of such dower shall be diminished by the amount of said homestead of the value aforesaid. The court further finds that the plaintiff Elizabeth Growney, and the defendants Patrick J. O'Donnell, Joseph J. O'Donnell, Hugh J. O'Donnell, Mary Calahan, and Margaret Brady, being all of the children and heirs at law of said Patrick O'Donnell, deceased, are jointly entitled to the reversion and fee of said homestead of the value aforesaid, subject to the rights and interest of said Mary A. O'Donnell therein in accordance with the statute in such cases made and provided. The court further finds that it is necessary in this proceeding in equity to sever and set off said homestead from the real estate hereinbefore described, in accordance with the provisions of sections 6713 and 5710 of the Revised Statutes of Missouri of 1909.

"It is therefore by the court ordered and for such purpose the court hereby appoints John Clary, W. C. Pierce, and W. F. Jackson, three competent persons and residents of the county of Nodaway, to be commissioners to set off to said Mary A. O'Donnell a homestead of the value of fifteen hundred ($1,500.00) dollars in the land hereinbefore described, and if in the judgment of said commissioners said homestead so set off shall not equal one-third (1/3) of the whole value of said land, then in addition to such homestead, they shall set off to said Mary A. O'Donnell, as dower, such further portion of said land as shall, when added to the value of said homestead, make the whole amount of land so set off to said Mary A. O'Donnell equal to one-third (1/3) of the entire value of said real estate hereinbefore described; and in fixing the value of said homestead, and the value of said dower, if any, said commissioners are directed and...