Hudspeth v. Zorn

• Decision Date: 09 July 1956
• Docket Number: No. 1,No. 44937,44937,1
• Citation: 292 S.W.2d 271
• Parties: Dora A. HUDSPETH, Respondent, v. Grover G. ZORN and Fontelle L. Zorn, Appellants
• Court: Missouri Supreme Court

Page 271

292 S.W.2d 271

Dora A. HUDSPETH, Respondent, v. Grover G. ZORN and Fontelle L. Zorn, Appellants.

No. 44937.

Supreme Court of Missouri, Division No. 1.

July 9, 1956.

Errol Joyce, Edwin Yagel, Robert Devoy, Brookfield, for appellants.

George T. Sweitzer, Anderson & Anderson, Harrisonville, H. K. West, Brookfield, for respondent.

HYDE, Judge.

Action to set aside a deed to land in Chariton County, made to defendants by plaintiff and her husband (deceased before the trial) who held title by the entirety. The Court's decree set the deed aside and defendants have appealed.

This suit was brought on July 16, 1952, by Dora A. Hudspeth (herein referred to as plaintiff) and W. C. Hudspeth as guardian of plaintiff's husband, Clifton Hudspeth, a person of unsound mind. The suit was in two counts, the first count was to set aside the deed; the second count was for one-fourth of the crops raised in 1952 and thereafter for rent of the land. The deed was executed May 29, 1952, recorded July 3, 1952; and the guardian appointed on July 7, 1952, the date Clifton Hudspeth was determined to be of unsound mind. Clifton Hudspeth died October 10, 1954, and this suit was tried in January 1955. Both plaintiff and her husband were about 79 years old at the time the deed was executed.

Plaintiff and her husband, by the deed sought to be set aside, conveyed to defendants 230 acres of land for $1,000. The Court in a memorandum filed with its decree found that, on May 29, 1952, Clifton Hudspeth 'was not mentally competent of understanding and acting with discretion in the ordinary affairs of life and was mentally incompetent of executing the deed.' The Court also found that he had not seen the land for about ten years; that plaintiff had not seen the land for many years and had no knowledge of land values; and that they both relied on defendants' representations as to the value and condition of the land which the Court considered to be untrue, finding that the consideration paid was grossly inadequate. The decree set aside the deed, ordered the consideration (which had been paid into Court) paid to defendants; and found (as to the second count) that defendants had made improvements equal to the rental value so that nothing more was due plaintiff for rent. Defendants' specific contentions are that the evidence was 'insufficient to sustain the finding of the Court that Clifton Hudspeth was without mental capacity to convey'; that there was no evidence of undue influence; and that the evidence was 'insufficient to sustain the finding of the Court that the consideration was grossly inadequate.'

It is true as defendants state (citing Meyer v. Schaub, 364 Mo. 711, 266 S.W.2d 620; Edinger v. Kratzer, Mo.Sup., 175 S.W.2d 807) that in this kind of a case, we have the duty to review the case anew on its merits, to weigh the evidence and reach our own conclusion as to its weight and value. It is also true as they say (citing McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698 and Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419) the cancellation of a deed is the exercise of the most extraordinary power of a court of equity and requires clear, cogent and convincing evidence. However, we think there was such evidence in this case and that it was sufficient to support the result reached by the decree.

It was shown that the Hudspeths paid $22,000 for the land in 1920, of which $20,000 came to Clifton Hudspeth from his father's estate at that time. Defendant Grover Zorn had farmed the land since 1925. He owned other land in Chariton County and rented this land on a share basis. The Hudspeths never lived on the Chariton County farm but owned and lived on a 194 acre farm in Cass County near Harrisonville, about 130 miles from the Chariton County farm. The evidence was that Hudspeth had not seen the Chariton County farm since 1941 and that plaintiff had only been on it once many years before that. The land was in the Grand River bottoms, the river running along one side of it and curving around it; and it had been overflowed many times between 1941 and 1952, the worst floods being in 1951, when the river was at flood stage six times. Old buildings on the land had deteriorated, so as to be no longer usable, and through this period Hudspeth received little more than enough to pay the taxes. It appears that Hudspeth had complete confidence in Zorn and accepted what he gave him as his part of crop proceeds without question and without any check. Zorn said he visited the Hudspeths' home two or three times during that period; and he also wrote to him about the farm. Zorn was married in 1949 and he and his wife went to see the Hudspeths in Sec.951. (There is a conflict in the evidence as to whether this was before or after the 1951 flood.) They came again on Sunday, May 25, 1952. Plaintiff's evidence was that many representations were then made by both defendants as to the value and condition of the farm and that Zorn had previously made similar representations by letter. These representations were that the farm wasn't worth anything; that there couldn't be anything raised on it; that the place was washed all to pieces, washed out with big gulleys all over the farm with water standing in them; that they couldn't farm over these ditches; that sand was washed all over the farm; and that willows had grown up over it so big and heavy it couldn't be tended and they could be got out only with a bulldozer. Mrs. Zorn said to plaintiff that to fix it up 'would cost an awful lot of money and she didn't think it would pay us to try'; that 'she couldn't see why we wouldn't try to sell it.' Defendants denied making any representations to plaintiff or her husband about the farm or its value or suggestions that they sell it. Zorn's version of what occurred was that he did not go there to buy the farm but to explain the situation. He said Mr. Hudspeth proposed the sale and made the offer to sell in the presence of plaintiff. Zorn said he told the Hudspeths that he could not stay over to complete has purchase but would come back later in the week and told them to think it over three or four days, saying: 'If you decide to sell it, we'll take it.' Defendants came back on Thursday, May 29th and went with the Hudspeths to an abstracter's office in Harrisonville (selected by Hudspeth) where the deed was prepared from the abstract, executed and delivered. A check for $1,000, also prepared by the abstracter, was signed by Zorn and delivered to Hudspeth, who took it to his bank in Harrisonville, accompanied by Zorn, and used it to take up his notes held by the bank.

It was shown that in April 1952, Zorn had made application for work on the farm under the government land rehabilitation program. Inspection of the land was made on April 3, 1952 and the application was approved for rehabilitating a total of 25 acres, not all in one piece. This work was filling washes, ditches and hollows, shoving out the willows and cottonwoods and sand deposits; and it was done early in June 1952, starting the second day after defendants got the deed; 23 acres were leveled with about five days work. The cost was about $800 of which the government paid $360 and Zorn paid about $440. (The bull-dozer operator testified at least that much more work was needed.) Plaintiff told their grandson W. C. Hudspeth about the deed about two weeks after it was made. He had heard defendants making representations concerning the condition of the farm, and trying to buy it, on their 1951 visit and he decided to go look at the farm. He went with two other farmers who lived near him about the middle of June. After seeing it, he employed a lawyer and proceedings were commenced which resulted in Clifton Hudspeth being found to be of unsound mind and W. C. Hudspeth was appointed his guardian. (Hereinafter, he will be referred to as guardian.) Thereafter, in July, the guardian went to the farm again, with the same men and his lawyer, and offered Zorn the consideration of $1,000 for a reconveyance of the farm, which was refused. The description of the farm by the guardian and the two farmers with him, was that there was 200 acres tillable land and not more than 30 acres waste land. They said the sand deposits were near the river where it curved around part of the farm and could be farmed over. They estimated there were 90 acres in corn (three plaintings, some big, some laid by and some still being cultivated), 40 acres of beans (two plantings, some 3 inches high and some 8 to 10 inches), 40 acres of wheat (not too good quality that would make about 15 bushels per acre) and 20 to 30 acres of plowed ground not planted. They found no washes or ditches but saw evidence of bulldozing work. Defendants' evidence was that the land had not been cultivated in 1951 because of floods; that in the spring of 1952 there was only about 30 acres not covered by willows; that 35 to 40 acres of young willows were plowed in, in June 1952, and about 25 acres rehabilitated but not planted; and that in July 1952 there was 40 to 50 acres of corn, 20 acres of wheat and 8 acres of beans. Zorn estimated that less than 100 acres was tillable. He said there had been...