Hardaway v. Hardaway
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 360,281 Mo. 403 |
| Parties | WINDHAM RICHARD HARDAWAY, Appellant, v. WILLIAM SHERMAN HARDAWAY |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
J. M Leavitt and Herman Pufahl for appellant.
(1) The fiduciary relation having been shown to exist between plaintiff and defendant, the law presumes that the deed was obtained by undue influence. Cadwallader v. West, 48 Mo. 483; Kirschner v. Kirschner, 113 Mo. 297; Ennis v. Burnham, 159 Mo. 518; McDermeitt v Keesler, 240 Mo. 287; Kincer v. Kincer, 246 Mo 419. (2) The deed should be set aside for failure of consideration. Respondent admits he paid nothing. His unreasonable story about paying the recited consideration of one dollar in work is too ridiculous to merit consideration. The only thing it tends to prove, is that it is not intended to be a gift of the land. The appellant testified that he received nothing and would not have executed the deed but for the fact that he expected Sherman to care for him in his old days and look after the farm, and that these promises induced him to make the deed, and that but for them he would not have executed the deed. Haataja v. Saarenpaa, 118 Minn. 255; Grimmer v. Carleton, 93 Cal. 189; Lane v. Lane, 106 Ky. 530; Jenkins v. Jenkins, 3 B. Mon. 237; Reynolds v. Reynolds, 234 Mo. 155. (3) The refusal or neglect of the grantee to carry out the agreement to care for his foster father, and also his refusal to look after the farm raises the presumption that he did not intend to do so in the first instance and therefore the deed was fraudulent in its inception. Seymore v. Belding, 83 Ill. 222; McClelland v. McClelland, 176 Ill. 83; Fabrice v. Von-der-Brelie, 190 Ill. 460; Stebbins v. Petty, 209 Ill. 291; Sherrin v. Flinn, 155 Ind. 422; Cree v. Sherfy, 138 Ind. 354; Tomlinson v. Tomlinson, 162 Ind. 530; Spangler v. Yarborough, 23 Okla. 806. (4) A deed is a contract, and in order to make it a valid instrument, there must be a meeting of the minds of the parties to it. The appellant, testified that he was induced to make the deed under the belief that the respondent would live with him, care for him in his old days and look after the farm. Respondent denies that he agreed to do any of these things. Clearly, then, there never was a meeting of mind of the parties to the contract, and it should be set aside. Falls Wire Mfg. Co. v. Broderick, 12 Mo.App. 383; Robinson v. Estes, 53 Mo.App. 585; Perkins v. School District, 99 Mo.App. 487; Luckey v. Frisco Railroad, 133 Mo.App. 593; Green v. Cole, 103 Mo. 76; Cockrell v. McIntyre, 161 Mo. 69. (5) Under all rules of justice and equity, the deed should be set aside. To permit the respondent, a young, healthy and robust man to retain the title to the land would be a travesty on justice. Within a year after obtaining the deed, he abandons his foster parent and leaves him in a position, so that he cannot sell the property to support himself in his declining years. It was not necessary to show a wilful design to defraud. Bishop v. Seal, 87 Mo.App. 261; Hurley v. Kennally, 206 Mo. 282; Reynolds v. Reynolds, 234 Mo. 144; Kincer v. Kincer, 246 Mo. 419; Heimeyer v. Heimeyer, 259 Mo. 515.
T. H. Douglas for respondent.
(1) There is no presumption against a voluntary conveyance from parent to child. The burden is not cast upon such grantee unless the relation of trust and confidence is shown by other substantial evidence. No such fiduciary relation is shown by the evidence in this case. State ex rel. v. True, 20 Mo.App. 181; McKinney v. Hensley, 74 Mo. 332; Hamilton v. Armstrong, 120 Mo. 616; Doherty v. Noble, 138 Mo. 25; Hatcher v. Hatcher, 139 Mo. 614; McKissock v. Groom, 148 Mo. 459; Bonsal v. Randall, 192 Mo. 532; Huffman v. Huffman, 217 Mo. 193; Jones v. Thomas, 218 Mo. 508; Lee v. Lee, 258 Mo. 599; Stanfield v. Hennegar, 259 Mo. 50; Bennett v. Ward, 272 Mo. 671. (2) In this case the expressed consideration is one dollar and other valuable consideration. The real consideration is love and affection which is sufficient to support the deed. 13 Cyc. 529, 534; Draper v. Shoots, 25 Mo. 202; Wood v. Broadley, 76 Mo. 23; Studybaker v. Cofield, 159 Mo. 616; Weissenfels v. Cable, 208 Mo. 534; Griffin v. Nickolas, 224 Mo. 275; Chambers v. Chambers, 227 Mo. 287. (3) The finding of the trial court in this case is absolutely correct. In suit to set aside a deed as obtained by fraud, mistake or undue influence, the burden of proof is on the plaintiff, and plaintiff has failed to discharge himself of that burden. Brown v. Foster, 112 Mo. 297; Taylor v. Crocket, 123 Mo. 300; Strong v. Whybark, 204 Mo. 348; Wing v. Havelik, 253 Mo. 502; Turner v. Anderson, 236 Mo. 523; Gibony v. Foster, 230 Mo. 106. (4) Even though plaintiff's contention that defendant promised to support plaintiff as consideration for the deed, were correct, which defendant does not concede in any particular, still the deed should not be set aside. Anderson v. Gaines, 156 Mo. 664; Lackland v. Hadley, 260 Mo. 572.
This is a suit in equity, and the petition is in two counts. The object of the first is the cancellation of a deed made by plaintiff to defendant, and of the second to obtain a judgment against defendant for damages and have a lien declared on the land; the gravamen of both causes being defendant's alleged failure to render the consideration for which the conveyance was made to him.
Defendant was eighteen years old at the time of the conveyance, and twenty years old when the case was tried. When he was twenty-two months old, he was taken into the home of plaintiff, where he was reared by plaintiff and his wife as though he were their son, but never adopted. The testimony shows the relations between the parties were always pleasant; that defendant treated his foster parents, as they may be called, well, and they treated him well. Plaintiff's home was on the land involved in this action; a tract of forty acres in Polk County, Missouri, about two miles from the town of Fairplay.
Mrs. Hardaway, plaintiff's wife, died in December, 1911, and afterwards plaintiff and defendant continued to reside at the home place, "baching it," as they expressed their way of living. Plaintiff appears to have been strongly attached to defendant and to have formed an intention, at some time before the deed in question was made, to leave, by will, his small estate to defendant, although plaintiff had four living children, who were married and settled; some in the vicinity of the farm and others elsewhere. Plaintiff had expressed a wish to dispose of his property so a son-in-law would derive no benefit from it; but this sentiment does not appear to have had much, if any, influence in causing him to make the deed in controversy. Some time before the date of its execution, but how long is not stated, plaintiff, according to his own testimony, had executed two wills, giving to defendant by the first everything he had, and by the second, everything he had except twenty dollars to each of his children. There is testimony tending to prove he became apprehensive lest, if he devised his property to defendant, the will would be contested and set aside; and he consulted a neighbor by the name of Turley, about whether it would be better to convey the farm to defendant or make a will in the latter's favor; and Turley told him as far as he (Turley) knew, the deed could be contested as well as a will. Plaintiff finally decided to convey it by deed; and whether or not he did so upon the agreement of defendant to remain on the farm and take care of plaintiff as long as plaintiff lived, is the issue of fact on which the case depends.
On December 23, 1915, plaintiff went to Bolivar the county seat of Polk County, accompanied, at his request, by Turley, and called upon Mr. Cunningham, an attorney. Plaintiff asked the attorney about the effect of the will he had made in defendant's favor, and the attorney said he was unable to advise concerning the effect of the will without seeing it or whether it would be more prudent to make a deed. At that time, or on a second visit to the office the same day, the attorney told him that a will, properly drawn, was as good as a deed; but plaintiff replied he was afraid a will would be contested. He further stated to the attorney that he wanted the boy (defendant) to have the land, and asked that a deed be drawn so as to convey it to defendant, but with a reservation of the rents and profits to plaintiff while he lived. Turley had left the attorney's office shortly after entering it, and plaintiff left after he had directed the preparation of the deed. The deed was drawn in the form of an indenture, with plaintiff as party of the first part and defendant party of the second part. It recites a consideration of one dollar and "other valuable considerations" paid by the second party. The granting clause contains the words "grant, bargain, sell, convey and confirm;" the land is described as the northwest quarter of the southeast quarter of Section 30, Township 34, Range 24, Polk County, Missouri, and this reservation is made: "W. R. Hardaway hereby reserves the right to use, occupy and enjoy said real estate and all the rents and profits therefrom during his natural life." Covenants of warranty and indefeasible seisin and against incumbrances follow. Plaintiff returned later to the attorney's office, got the instrument and took it away with him, without signing or acknowledging it. On December 30th he went to Fairplay, called upon the cashier of the bank where he did business, and signed and acknowledged the deed in the presence of the cashier, who was a notary public. The cashier testified he read the deed over to plaintiff, as was his custom when he took an...
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