Hamilton v. Steininger

• Citation: 168 S.W.2d 59,350 Mo. 698
• Decision Date: 02 February 1943
• Docket Number: 38146
• Parties: C. H. Hamilton, Forrest I. Hamilton, Wiley Hamilton and Dixie Logdson, v. Walter H. Steininger and Katheryn D. Steininger, his wife; Elmer R. Wornell; James H. Bishop and Gladys D. Bishop, his wife; Nona Miller; and Felix Senevey, Appellants
• Court: United States State Supreme Court of Missouri

168 S.W.2d 59

350 Mo. 698

C. H. Hamilton, Forrest I. Hamilton, Wiley Hamilton and Dixie Logdson, v. Walter H. Steininger and Katheryn D. Steininger, his wife; Elmer R. Wornell; James H. Bishop and Gladys D. Bishop, his wife; Nona Miller; and Felix Senevey, Appellants

No. 38146

Supreme Court of Missouri

February 2, 1943

Appeal from Cole Circuit Court; Hon. Ransom A. Breuer Judge.

Reversed.

Lewis H. Cook, John O. Bond and H. P. Lauf for appellants.

(1) There was no evidence in this case upon which to base the decree of the court. There was no evidence of mental incapacity, undue influence, fiduciary relationship or conspiracy, and the court erred in setting aside the deeds executed and delivered to appellants, Steininger, Wornell and Bishop. Shaw v. Butler, 78 S.W.2d 420; Lynn v Coates, 142 S.W.2d l. c. 1019; Monroe v. Lyons, 339 Mo. 515, 98 S.W.2d 544. Ulrich v. Zimmerman, 349 Mo. 772; Platt v. Platt, 123 S.W.2d 54, 343 Mo. 745; Hahn v. Brueseke, 155 S.W.2d 98; Clark v Skinner, 70 S.W.2d l. c. 1097; Lastofka v. Lastofka, 99 S.W.2d 46, 339 Mo. 770. (2) Undue influence to annul, vacate, destroy and set aside a deed must be such over-persuasion, coercion, force and deception as breaks the will of grantor, and puts in its stead the will of another. Shaw v. Butler, 78 S.W.2d 420; Lynn v. Coates, 142 S.W.2d l. c. 1019; Hahn v. Brueseke, 155 S.W.2d 98. (3) The showing of a confidential or fiduciary relationship between grantor and grantee does not give rise to any presumption of undue influence, but the burden is on plaintiffs to adduce facts and circumstances from which it may be inferred undue influence was exercised by the grantee. Loehr v. Stark, 332 Mo. 131, 56 S.W.2d 772; Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 17; Lastofka v. Lastofka, 99 S.W.2d 46, 339 Mo. 770. (4) The burden of proof to establish the allegations of conspiracy, mental incapacity, undue influence and fiduciary relationship in plaintiffs' petition is on plaintiffs. A court of equity will not exercise this extraordinary power to annul, vacate and set aside deeds unless the evidence is clear, cogent and convincing. Ulrich v. Zimmerman, 349 Mo. 772, 163 S.W.2d 567; Hahn v. Brueseke, 155 S.W.2d 98; Platt v. Platt, 123 S.W.2d 54, 343 Mo. 745; Reaves v. Pierce, 26 S.W.2d 611; Lastofka v. Lastofka, 99 S.W.2d 46, 339 Mo. 770. (5) A creditor can complain of inadequacy of consideration, but plaintiffs as heirs cannot unless in addition they prove, mental incapacity, undue influence or fraud. Lynn v. Coates, 142 S.W.2d l. c. 1019; Clark v. Skinner, 70 S.W.2d l. c. 1097, 334 Mo. 1190; Robinson v. Field, 117 S.W.2d l. c. 312; Brown v. Weare, 152 S.W.2d 649; Lowery v. Goslin, 137 S.W.2d 555; Wood v. Broadley, 76 Mo. 23. (6) Letters written and statements made by the deceased grantor, Mrs. Knight, are hearsay and are only received in evidence to show the state of her mind. Jones v. Thomas, 218 Mo. l. c. 543; Van Raalte v. Graff, 253 S.W. l. c. 223, 299 Mo. 513; Hayes v. Hayes, 242 Mo. l. c. 170, 145 S.W. 1155; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Crowson v. Crowson, 172 Mo. l. c. 703, 72 S.W. 1065; Curtis v. Alexander, 257 S.W. 432, l. c. 437; Gibson v. Gibson, 24 Mo. l. c. 235. (7) This is an equity case, and the cause is heard de novo. The court will determine the weight and value of the evidence, and enter such a decree as the lower court should have entered in the first instance. Cohron v. Polk, 252 Mo. 261, 158 S.W. 603; Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609; Lastofka v. Lastofka, 99 S.W.2d 46. (8) In a suit of this kind each case must stand on its own facts. Lynn v. Coates, 142 S.W.2d l. c. 1019. (9) The appellate court in a case of this kind has an advantage of the trial court in that it can read and re-read the printed record, retain the facts for comparison of the testimony offered. Smith v. Lore, 29 S.W.2d 91, 325 Mo. 282. (10) The cancellation of a deed is an exertion of the most extraordinary power of a court of equity which ought not to be exercised except in a clear case. Lastofka v. Lastofka, 99 S.W.2d 46; Cohron v. Polk, 252 Mo. 261, 158 S.W. 603. (11) The law of wills is equally applicable to deeds of gifts in a suit to set aside such deeds. McFarland v. Brown, 193 S.W. 800; Clark v. Skinner, 70 S.W.2d l. c. 1097, 334 Mo. 1190. (12) In many will cases this court has upheld the validity of a will, holding the evidence insufficient to prove the issues of undue influence and mental incapacity, which law applied to the facts in this case, on hearing de novo compels a reversal of the lower court's judgment. Larkin v. Larkin, 119 S.W.2d 351; Look v. French, 144 S.W.2d 128; Turner v. Butler, 253 Mo. 220; Weston v. Hanson, 212 Mo. 248, 111 S.W. 44. (13) Respondents must stand sponsors for the credibility of their own witnesses, Chester A. Platt and C. H. Hamilton. Platt v. Platt, 123 S.W.2d 54, 343 Mo. 745. (14) Grantor, Mrs. Knight, had the right to convey her property to whom she desired. Clark v. Skinner, 70 S.W.2d l. c. 1097, 334 Mo. 1190; Bennett v. Ward, 272 Mo. 671, 199 S.W. 945.

James P. Boyd, S.W. James, Jr., and Curtis J. Quimby for respondents.

(1) A conspiracy is an agreement or understanding between two or more persons to do an unlawful act or to use unlawful means to do an act which is lawful, but it is not necessary that it should be proven by an express agreement or by direct evidence, but may be proven like any other fact by circumstantial evidence. Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507, 286 S.W. 38; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998. (2) Fiduciary relation arises wherever a trust, continuous or temporary, is specially reposed in the skill or integrity of another, or the property or pecuniay interest, in the whole or in a part, or the bodily custody of one person is placed in the charge of another. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Manahan v. Manahan, 52 S.W.2d 825; Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 17; Dimity v. Dimity, 62 S.W.2d 859; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772. (3) The terms fiduciary relation and confidential relation have been held to be practically synonymous; the same underlying principles are applicable to both fiduciary relations and confidential relations. Klika v. Albert Wenzlick Real Estate Co., 150 S.W.2d 18. (4) The evidence, conclusively proves the existence of a concerted action or conspiracy between the defendants, and that a fiduciary and confidential relationship existed between Oma Knight and defendants Steininger and Wornell. This evidence, coupled with the positive proof of the pernicious activity upon the part of defendants Steininger and Wornell in procuring the execution of the deeds, raised the presumption of undue influence upon the part of the defendants in obtaining the execution of the deeds, and the burden of proof then shifted to the defendants-appellants in this case to overcome that presumption by the greater weight or the preponderance of the evidence, which they failed to do. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Odom v. Langston, 152 S.W.2d 124. (5) Undue influence may be inferred from the facts and circumstances of the case, and need not be proven by direct evidence. Gott v. Dennis, 296 Mo. 66; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Dimity v. Dimity, 62 S.W.2d 859; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72; Larkin v. Larkin, 119 S.W.2d 351; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Walter v. Alt, 152 S.W.2d 135. (6) Whenever the question of fraud is involved in the issues, then any unusual clause in an instrument, any unusual method of transacting the business, apparently done to give the transaction an air of honesty and good faith is of itself a badge of fraud. When the part is overacted the delusion is broken and the fiction appears. Barber v. Nunn, 275 Mo. 565, 205 S.W. 14; Mumford v. Shelton, 320 Mo. 1077, 9 S.W.2d 907; Egger v. Egger, 225 Mo. 116, 123 S.W. 928. (7) In considering the question of mental weakness of the grantor, it is necessary to consider the inadequacy of consideration of the transactions, the evidence of undue influence on the part of the grantees, and the activity of the grantees in procuring the execution of the deeds. Cadwallader v. West, 48 Mo. 483; Brown v. Brown, 237 Mo. 662, 141 S.W. 631; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Turner v. Butler, 253 Mo. 202, 161 S.W. 745. (8) Where there is a weakness of mind arising from old age, sickness, intemperance or other cause, and a plain inadequacy of consideration, equity will interfere and relieve the party from the injustice of the unequal contract. Cadwallader v. West, 48 Mo. 483; Schroeder v. Turpin, 253 Mo. 258; Armstrong v. Logan, 115 Mo. 465. (9) Although an equity case is triable practically de novo in this court, where there is conflicting verbal testimony, involving the credibility of witnesses who have appeared before the chancellor, this court will usually defer to his findings unless satisfied that they are against the weight of the evidence. This rule is so well established in this State that the extensive quotation of authorities seems hardly necessary. Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; Long v. Von Erdmannsdorff, 111 S.W.2d 37; Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8; Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d 870.

Dalton, C. Bradley, C., concurs; Van Osdol, C., not sitting.

OPINION

DALTON

Action in equity to set aside three warranty deeds in usual form executed on one occasion by Mrs. Oma Knight who is hereinafter referred to as deceased. Each deed purported to convey a particular portion of a single tract of business property to a different grantee (all defendants herein),...