Holliway v. Holliway

• Decision Date: 30 April 1883
• Citation: 77 Mo. 392
• Parties: HOLLIWAY v. HOLLIWAY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 392

HOLLIWAY

v.HOLLIWAY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Buchanan Circuit Court--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Vinton Pike for appellant.

Allen H. Vories for respondent.

NORTON, J.

This is a proceeding in equity commenced in the circuit court of Atchison county to set aside and cancel a deed made by plaintiff to defendant, the petition also containing a count setting up a partnership in certain personal property and in farming operations, and praying that an account be taken and the said partnership settled. In the Buchanan circuit court, where the case was taken by change of venue and tried, plaintiff dismissed as to the second count in the petition, and the court rendered a judgment setting aside and cancelling the deed, and from this judgment defendant prosecuted his appeal to this court, and asks a reversal of the same mainly upon the ground that it is not sustained by the evidence.

The petition, in substance, charged that plaintiff and defendant are brothers; that plaintiff has been, all of his lifetime, sick, diseased, deformed and crippled, that his mental faculties were weak, and that he at all times confided in the defendant, trusting to and relying upon defendant to control and direct him in all his business relations; that for more than fifteen years he and defendant were partners in business, and as such partners owned an undivided half of the lands set out in said petition, upon which said lands plaintiff and defendant lived, and cultivated them as joint owners; that defendant managed and controlled the property, and plaintiff, trusting in defendant's superior judgment and business capacity and discretion, did whatever defendant advised or directed; that about October, 1872, the defendant, intending to cheat and defraud plaintiff out of his interest in said lands, and intending to appropriate the same to his own use and benefit, represented to plaintiff that from his weak mind and physical infirmities, he was incapable of properly owning or controlling said lands, and then and there falsely and fraudulently represented to plaintiff that one Sarah F. Crook, (now Sarah F. Journey,) a woman who was then living on part of the land of plaintiff and defendant, intended to bring suit for breach of marriage promise against plaintiff, by which he would be ruined, and his lands taken away from him, and that if he would save his lands he must make a conveyance of them to defendant, to hold for him awhile, and then he would re-convey the same to plaintiff; that plaintiff, relying upon and confiding in his said brother and in his representations aforesaid, and fully believing that defendant was advising him for the best in the premises, and having no will or judgment of his own, then and there conveyed by deed his interest in said lands to defendant, without any consideration therefor; that it was wholly untrue that the said Sarah F. Crook intended to prosecute any suit against plaintiff for breach of marriage promise, and it is wholly untrue that there had ever been any contract of marriage between said parties, or any foundation for any report thereof; that after said conveyance was made by plaintiff to defendant, he discovered the fraud which his brother had practiced upon him, and demanded of him a re-conveyance of said land, but that defendant has refused, and still refuses to make said reconveyance, and now denies that plaintiff has any interest in said lands. The plaintiff then prayed for judgment that said deed be set aside and cancelled, and that plaintiff be re-instated of his one-half title in said lands, and for all proper relief.

The defendant answered, denying each and every allegation in said petition.

The evidence offered on the trial clearly established that plaintiff owned at the time of the execution of the deed sought to be cancelled, an undivided interest in the land mentioned therein, which, according to the weight of the evidence, was an undivided half interest, and that the land at the time the deed in question was executed, was worth from $18 to $25 per acre, thus making the half interest of the plaintiff of the value of from $2,830 to $4,000, there being 320 acres in the entire tract. The evidence also clearly established the fact that plaintiff was a cripple, diseased in his hips, and had been so from birth, and it tended to show that he reposed...