Holland v. Anderson

• Decision Date: 08 July 1946
• Docket Number: 39586
• Citation: Holland v. Anderson, 196 S.W.2d 175 (Mo. 1946)
• Parties: John Holland, respondent, v. Zella Anderson, appellant
• Court: Missouri Supreme Court

196 S.W.2d 175

John Holland, respondent, v. Zella Anderson, appellant

No. 39586

Supreme Court of Missouri, Second Division

July 8, 1946

From the Circuit Court of Ste. Genevieve County, Civil Appeal Judge Norwin D. Houser

Affirmed

OPINION

The defendant, Zella Anderson, appeals from a decree of the circuit court of Ste. Genevieve county, cancelling a warranty deed made to her in December, 1943, by John Holland, since deceased. He was a bachelor 82 years old at the time and had suffered two paralytic strokes several years earlier and had heart trouble. He could scarcely read print and could not write, and his hearing was bad. He died about eighteen months later, in July, 1945. Two physicians who had examined him expressed the opinion that he had the mentality of a child six or eight years old. An expert witness for respondent said his mentality was above the average for those of his age education and environment.

The appellant, a widow, then was 46 years old, alert and acquisitive. The deed conveyed to her two tracts of farm land in Ste. Genevieve county worth about $8000. One tract designated in the evidence as "Brushy farm," actually includes two adjoining farms respectively called the May farm, containing 564 acres, and the Scott farm containing 130 acres. The other tract, called the "Flatwoods" farm, contains 190 acres and is five or six miles distant from the first. This suit was brought by the plaintiff grantor on June 26, 1944. It was heard and decided by the chancellor in favor of the plaintiff on a general finding on the issues, and this appeal was taken by the defendant grantee, all before his death. His fourteen collateral heirs were substituted as parties respondent in this court. We have reached the same conclusion as the chancellor.

The grounds for cancellation alleged in the plaintiff's petition were: fraudulent misrepresentations; undue influence; inadequacy of consideration; mental incapacity of the grantor; and failure of performance by the grantee of an agreement to care for the grantor and render other personal services to him for the rest of his life. This last charge was based mainly on a provision in the deed. While the formal consideration stated therein was only $1 and other valuable considerations, there was a further clause reserving to the grantor "a life estate in the above described property, and the privilege to live at her home and be supported during his natural life, by the grantee herein, who is to pay all taxes thereon and all expenses necessary to maintain grantor and the said above described property during grantor's lifetime."

The plaintiff's petition further charged other considerations for the deed had been orally agreed upon but were omitted therefrom, namely: that appellant would pay for the upkeep of all his property during his lifetime, and his burial expenses; that she would pay $1000 to St. Rose of Lima Catholic Church at Silver Lake, Missouri, to provide for Masses for him after his death; and that she would bestow upon him her love and affection. It was further alleged the Flatwoods farm was included in the deed without the knowledge or consent of the deceased. Another consideration for the deed relied upon by respondents, but not explicitly pleaded in the petition, was that appellant would pay to the deceased one-half of any amount she collected on two old promissory notes for $3000 and $400 respectively, payable to the deceased and signed by a brother and a nephew.

Appellant's answer admitted the conveyance of the land by the deed but denied generally the other allegations of the deceased's petition. She testified the transactions respectively covering the deed and the two promissory notes were separate and distinct, and supported by different considerations. And she further declared the Flatwoods 190 acre tract was included in the deed on the oral agreement that it was to be held in trust by her and deeded to certain of the deceased's relatives at his death.

There are over 900 pages of evidence in the transcript, over two-thirds of which cover the testimony given by the deceased and the appellant at the trial and in two depositions which each had previously given. There are numerous references to these depositions in the trial examinations, and the record is exceedingly hard to follow. However, the testimony as to the succession of events and what was done - rather than why and at whose instance it was done - is pretty much in accord. The deceased's testimony was shorter and vaguer. And while he appears to have been a man of rather strong likes and dislikes, yet it seems he was confused in memory as to details, indecisive, and seeking to repose confidence in someone. The appellant was self-confident, aggressive in business, wary under cross-examination and changed her testimony when it was shown to conflict with that of other witnesses. Since her testimony was more detailed, we mainly follow her story in stating the facts. This opinion necessarily will be rather long.

The deceased John Holland and the appellant had known each other from her girlhood, both having been reared on farms in the neighborhood of Silver Lake, a village in Perry county 10 miles southwest of Perryville; 23 miles southwest of the village of St. Mary's; 32 miles southwest of Ste. Genevieve; and 41 miles northwest of Cape Girardeau. All these distances are taken from maps of the Missouri State Highway Commission, of which we take judicial notice. State v. Kenyon, 343 Mo. 1168, 1183, 126 S.W.2d 245, 253(19). The deceased went to California and Nevada in 1902, and remained there for 25 years barring occasional visits to the old homestead. He returned to the old community in 1927, when he was about 65 years old and engaged in farming the rest of his life.

The land records and undisputed testimony show he got the three farms here involved between 1930 and 1937 through the foreclosure or collection of mortgage encumbrances thereon. Thus it appears that he had some means prior to those years. And in December, 1943, when he made the deed in issue, he owned considerable property besides those farms and the aforesaid $3000 and $400 notes. According to his testimony he also had: a one-half interest in the 212 acre family homestead in Perry County (not involved herein), much of which he had acquired through the purchase of undivided interests of some of the other heirs; 15 head of cattle; 19 head of sheep; $8000 on deposit in the bank at St. Marys; perhaps about $2800 cash which he was carrying around in his pocket (of this, later); a $1900 note and "Hilltop" mortgage; and some $2000 maturity value in U.S. Bonds.

It appears that after he returned from California in 1927 he lived on the Brushy farm for some years. He testified he had a "stroke" there six or seven years before the trial, which would be in 1937 or 1938. His physician then was a Dr. Sexauer, who was not a witness at the trial. He said he had another more severe stroke about two years later (1939 or 1940) while still on the farm, and again called in Dr. Sexauer, who sent him in an ambulance to St. John's Hospital in St. Louis where he was attended by a Dr. Falk, who, also was not a witness. A close friend, William Turner of St. Mary's, said the deceased had stayed at his home off and on for four years and had left valuable papers there since 1940. Sometime about then he lived at the home of his niece Anna Pfeiffer in Clear Water, a village post office in Ste. Genevieve county, for about seven or eight months. He testified that she transferred his bank account from a bank at Perryville to one at Ste. Genevieve, thus showing he was inclined to entrust such matters to others.

From Mrs. Pfeiffer's he went to the home of his brother Joe Holland, and thought he stayed there about a year. Thence he returned to his farm. Afterward, he had "several attacks of something" and "got helpless." This was while he was at the home of another niece, Mrs. Margaret Zahner, who lived near Silver Lake. Neither of these nieces testified. He fixed that time as "sometime in the fall (of) year before last," which would be 1942. His physician was a Dr. Miller of Perryville. Following that he went to the home of his niece Mrs. William Geile, whose husband was a merchant and postmaster at Silver Lake. This brings us to the time of the events immediately involved.

The date of the deceased's later illnesses and their nature were more clearly stated by two of his physicians, Dr. Miller, who treated him while he was staying at Mrs. Zahner's, said his first visit was on December 23, 1942. The deceased had fallen outside his home and was irrational, couldn't speak coherently, there was a twitching of his left arm, and he was laboring for breath. Examination disclosed heart leakage and irregular action. His circulation was impeded by hardening of the arteries. Three days later the condition of the patient was somewhat improved. The doctor saw the deceased once after that on August 15, 1943, while he was staying at Mrs. Geile's in Silver Lake. He could carry on a reasonably intelligent conversation, but there was not much improvement in his condition.

Dr. E T. Urban, a general practitioner of medicine in St. Louis, had a farm near Silver Lake which he visited almost weekly. He saw the deceased first in February, 1943, and nearly every week thereafter for ten to twelve weeks, while the latter was staying at the Geile home. He testified the deceased then had "cardiac decomposition" and very sclerotic arteries, which resulted in an undernourished brain and probably slight blood hemorrhages therein. The appellant admitted on the stand she had heard through Wm. McCluskey that the deceased had been pretty sick sometime back at St. John's Hospital and had fallen out of bed. Sh...