Hunter v. Briggs

• Decision Date: 03 January 1914
• Citation: 162 S.W. 204,254 Mo. 28
• Parties: HUNTER et al. v. BRIGGS et al.
• Court: Missouri Supreme Court

162 S.W. 204

254 Mo. 28

HUNTER et al. v. BRIGGS et al.

Supreme Court of Missouri, Division No. 1.

January 3, 1914.

1. EVIDENCE (§ 501)—OPINION EVIDENCE— FACTS FORMING BASIS OF OPINION.

Nonexpert witnesses must first state the facts in their knowledge upon which they base their opinions as to a person's mental condition, before such opinions are admissible in evidence.

2. EVIDENCE (§ 498½)—OPINION EVIDENCE— FACTS FORMING BASIS OF OPINION.

In an action to set aside a deed because of the grantor's alleged mental incapacity, testimony held to state sufficiently the facts upon which witnesses based their opinions that the grantor was of unsound mind, to justify the admission of their opinions in evidence.

3. DEEDS (§ 211)—FRAUD AND UNDUE INFLUENCE —SUFFICIENCY OF EVIDENCE.

In an action to set aside a deed to a person who, after the grantor's death, deeded the land to the grantor's wife, receiving a reconveyance in consideration of his agreement to support and maintain the wife, evidence held insufficient to to show fraud or undue influence by the grantee or the wife.

4. DEEDS (§ 211)—CAPACITY OF PARTIES — SUFFICIENCY OF EVIDENCE.

In an action to set aside, for mental incapacity, a deed reciting a money consideration, which was not paid, to a party who, subsequent to the grantor's death, conveyed to the grantor's wife and took a reconveyance in consideration of his agreement to support and maintain the wife, evidence held to support a finding that the grantor was of unsound mind and incapable of transacting business when the deed was made.

5. DEEDS (§ 211) — CONSIDERATION — EVIDENCE.

Where the lack of consideration for a deed to a stranger in blood was relied on as a circumstance tending to show the grantor's incapacity, a conveyance by the grantee to the grantor's wife after the grantor's death, and a reconveyance in consideration of the wife's support and maintenance, were not evidence that the original conveyance was for the use and benefit of the wife.

6. TRUSTS (§§ 17, 18)—CREATION—REQUIREMENTS OF STATUTE OF FRAUDS.

Under Rev. St. 1909, § 2868, providing that all declarations or creations of trusts in land shall be manifested and proved by writing, signed by the party who is, or shall be, by law enabled to declare such trust, where the apparent lack of consideration for a deed was relied on as a circumstance tending to show the grantor's unsoundness of mind, an oral agreement by the grantee to hold the land in trust for the grantor's wife could not be proved.

7. WITNESSES (§ 159)—COMPETENCY—SURVIVING PARTY TO CONTRACT.

Where, after the death of a grantor, his deed was attacked for mental incapacity, the grantee was incompetent to testify to an agreement to hold the land in trust for the grantor's wife in order to show that the conveyance was not without consideration.

8. APPEAL AND ERROR (§ 1009)—REVIEW — QUESTIONS OF FACT.

While the Supreme Court may review and weigh the evidence in equity cases, it will defer largely to the finding of the chancellor, if there is no special reason existing to the contrary.

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by Minnie Hunter and others against Theodore Briggs and another. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

The plaintiffs instituted this suit in the circuit court of Linn county against the defendants to set aside, and for naught hold, a certain warranty deed executed by Isaac N. Cunningham and his wife, Anna Cunningham, the former deceased, and the ancestor of plaintiffs, conveying to the defendant, Briggs certain tracts of land therein described. The trial resulted in a decree of court, in favor of plaintiffs, setting aside said deed, and the defendants duly appealed the cause to this court.

No objection is urged against the petition, which charged mental incapacity of Cunningham to make the deed, and undue influence exercised over his mind by defendants, his wife and Briggs.

The answer of the defendants was as follows (formal parts omitted): "Now comes the defendants in the above-entitled cause, and for their answer to plaintiffs' first amended petition herein admit that the plaintiffs are the children, and that the defendant Anna Cunningham is the widow, of Isaac S. Cunningham, who died intestate in Linn county, Mo. on the _____ day of _____ 1908. Defendants further admit that on and prior to July 7, 1903, said Isaac S. Cunningham was the owner of all the real estate mentioned and described in the petition, and that on said date he conveyed to the defendant Anna Cunningham, who was then Anna Barnes, 40 acres of said land, to wit, the west half of the west half of the northwest quarter of section 5, township 58, range 18, Linn county, Mo. Defendants further admit that, after the conveyance of said land by the said Isaac S. Cunningham to the said Anna Barnes, the said Isaac S. Cunningham and the said Anna Barnes were married, and defendants further state the fact to be that, from that time on until the death of the said Isaac S. Cunningham, the said Isaac S. Cunningham and the defendant Anna Cunningham were husband and wife and lived together as such. Defendants further admit that on the _____ day of _____ 190__, said Isaac S. Cunningham and the defendant Anna Cunningham, by their warranty deed of that date, conveyed to the defendant Theodore Briggs the following described lands, to wit, 79 83/100 acres in lot 1, and 2 73/100 acres in lot 2, all in the northwest quarter of section 5, township 58, range 18, Linn county, Mo., and that said deed further conveyed to said Briggs the 40 acres of land theretofore conveyed by the said Isaac S. Cunningham to the said Anna Barnes. Defendants deny that at the time of the execution of said deed the said Isaac S. Cunningham was, by reason of his feeble bodily and mental condition, incapable of making or understanding a contract or making a valid conveyance of his real estate, and deny that he, the said Isaac S. Cunningham, was caused to execute said deed because of overpersuasion or any improper or undue influence on the part of the defendants or either of them; and defendants state the fact to be that said Isaac S. Cunningham at the time of the execution of said deed was of sound mind, capable of fully understanding the nature of the contract he was making, and that said deed was made by him without any persuasion or improper or undue influence on the part of these defendants or either of them, and that said deed was made to the defendant Theodore Briggs, as trustee for use and benefit of the defendant Anna Cunningham, the wife of said Isaac S. Cunningham. Defendants further admit that, after the death of said Isaac S. Cunningham, the defendant Theodore Briggs did convey said land to the defendant Anna Cunningham, and that on the same day the said Anna Cunningham conveyed said land back to the said Theodore Briggs; but the defendants state and aver the fact to be that, at the time of the execution and delivery of said last-mentioned deed, a contract was made and entered into between the defendants whereby the said Theodore Briggs contracted and agreed to support and maintain the defendant Anna Cunningham as long as she lives. Further answering the petition, defendants deny each and every other allegation in said petition contained, and, having fully answered, ask to be discharged with their costs."

Counsel for defendants strenuously insist that the evidence contained in the record is insufficient to sustain the finding and decree of the court as to the mental incapacity of the deceased to make the deed, and that no undue influence whatever was exercised over his mind by the defendants. Unfortunately this character of defense always calls for an extended consideration of all the evidence in the case. The evidence is voluminous, covering more than a hundred pages of printed matter; and, after carefully reading the same and comparing it with the statement of the case made by counsel for appellants, we find that they have correctly stated the substance thereof as introduced by counsel for both sides, which we will copy largely from, without giving credit for same, as we may add to or subtract therefrom, as we deem just and proper.

Plaintiff's Evidence.

Dr. J. L. Cantwell testified: That he had known the deceased for 25 years or more and had prescribed for and treated him occasionally during all that time. The deceased was getting along in years and was more or less debilitated; he considered him physically weak and on the decline and suffering from senile changes. Witness had moved away from this county in 1906, and had not seen the deceased since that time. When he last saw the deceased in 1906, he did not think he would have been able to transact any complicated business, but that he was as able to understand ordinary affairs as most men of his age.

John Switzer testified: That he was 21 years old and had known the deceased all his life. On one occasion early in March, 1906, he met the deceased at Ot Colsen's, who lives about 2½ miles northeast of St. Catherine. Witness was going to Brookfield the next morning, and deceased came down there from his home on horseback, intending to walk from there next morning to St. Catherine, and there take the train to Brookfield. They agreed that they would go to Brookfield together the next day. The next morning the deceased got up about 6 o'clock while breakfast was being prepared and left for St. Catherine on foot without saying anything to any one about it. When witness got to St. Catherine, deceased had not come, but the train was due at 11:10, and deceased arrived about a half hour before train time. When deceased arrived he was tired out. He said it looked like he ought to know where everybody lived, but he did not, and he did not say what caused him to lose his way. Deceased lived about four miles north of where he stayed all night, and was familiar with the road to St. Catherine and the way across...