Kadlowski v. Schwan

• Decision Date: 21 December 1931
• Docket Number: 28844
• Citation: 44 S.W.2d 639,329 Mo. 446
• Parties: Charles Kadlowski, Administrator of Estate of Otto Kadlowski, and Charles Kadlowski, Appellants, v. Josephine Schwan
• Court: Missouri Supreme Court

44 S.W.2d 639

329 Mo. 446

Charles Kadlowski, Administrator of Estate of Otto Kadlowski, and Charles Kadlowski, Appellants, v. Josephine Schwan

No. 28844

Supreme Court of Missouri

December 21, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Reversed and remanded (with directions).

Jos T. Davis and M. G. Baron for appellants.

(1) Plaintiff, under the evidence, was entitled to a judgment and decree for the cancellation of the purported warranty deed and an accounting. Hershey v. Horton, 15 S.W.2d 801; McCollum v. Watts, 5 S.W.2d 428; Morris v Morris, 4 S.W.2d 462; Vining v. Ramage, 3 S.W.2d 712; Wooten v. Sullivan (Ark.), 283 S.W. 371; Hughes v. Renshaw, 282 S.W. 1014; Thomas v. King (Ky.), 281 S.W. 816; Frauenthal v. Bank, 280 S.W. 1001; Curtis v. Alexander, 257 S.W. 437; Watt v. Loving, 240 S.W. 122; Groff v Longsdon, 239 S.W. 1089; Kisling v. Yoder, 236 S.W. 860; Cook v. Higgins, 235 S.W. 816; Rayl v. Golfinopulos, 233 S.W. 1069; Jones v. Belshe, 238 Mo. 539; McClure v. Lewis, 72 Mo. 314. (2) In determining the question of fraud the court considers the relationship of the parties, the character of the transaction, the mental condition of the grantor and the adequacy of the consideration. Jones v. Belshe, 238 Mo. 539; McClure v. Lewis, 72 Mo. 314; Curtis v. Alexander, 257 S.W. 432; Cook v. Higgins, 235 S.W. 807; Watt v. Loving, 240 S.W. 122; Groff v. Longsdon, 239 S.W. 1087. (3) For the purposes of this case it is not necessary to find or believe that the grantor in the deed was "either insane or an imbecile." The question is: "Was his mind seriously impaired by age and disease, so much as to cause him to yield readily to the persuasion of others?" Jones v. Belshe, 238 Mo. 539; Curtis v. Alexander, 257 S.W. 437; McClure v. Lewis, 72 Mo. 318. (4) The courts do not proceed upon the theory that the mentality for a will would indicate the mentality for a contract. The rule by which mental capacity is measured when it comes to deeds and contracts is somewhat different from the rule which prevails as to wills. In contracts the parties are dealing at arm's length. There is a clash of minds, which is not true in the making of wills. Hershey v. Horton, 15 S.W.2d 801; Vining v. Ramage, 3 S.W.2d 721; Curtis v. Alexander, 257 S.W. 437; Watt v. Loving, 240 S.W. 124; Cook v. Higgins, 235 S.W. 807; Jones v. Belshe, 228 Mo. 540; Wooten v. Sullivan, 283 S.W. 371. (a) Even to sustain a will, much less a deed, it is not sufficient that testator, at the time of its execution, had sufficient mind and memory to answer familiar questions, but he must have a disposing mind and memory sufficient to enable him to comprehend and understand the character and amount of his property, and the persons or objects intended to be provided for by his will, and their relations to himself. McClintock v. Curd, 32 Mo. 422. (b) Testimony as to grantor's mental condition and capacity by witnesses bearing close family, social or business relations to grantor, is entitled to great weight Vining v. Ramage, 3 S.W.2d 721. (5) Under the evidence, undue influence and fraud will be presumed and the burden was upon defendant to overcome it. Huett v. Chitwood, 252 S.W. 428; Groff v. Longsdon, 239 S.W. 1089; Cook v. Higgins, 235 S.W. 813; Rayl v. Golfinopulos, 233 S.W. 1072; Dausman v. Rankin, 189 Mo. 703; Dingham v. Romine, 141 Mo. 474; McClure v. Lewis, 72 Mo. 319. (a) The rule as to undue influence as between parent and child or other blood relations, is entirely different than the rule applying to transactions between strangers. Hershey v. Horton, 15 S.W.2d 807; Curtis v. Alexander, 257 S.W. 437; Cook v. Higgins, 235 S.W. 814; Bartlett v. White, 272 S.W. 954. (b) Undue influence or fraud need not be proven by direct or positive testimony. It is sufficient if it is shown by or can be inferred from the facts and circumstances in evidence. Mowry v. Norman, 204 Mo. 193; Dingham v. Romine, supra; Cook v. Higgins, supra, 815; McClintock v. Curd, 32 Mo. 422; McClure v. Lewis, 72 Mo. 314. (c) Inadequacy of consideration is always a badge of fraud. Vining v. Ramage, 3 S.W.2d 721; Huett v. Chitwood, 252 S.W. 428; Watt v. Loving, 240 S.W. 123; Van Graafieland v. Wright, 228 S.W. 465. (d) So is haste in filing of deed. Vining v. Ramage, 3 S.W.2d 720. (e) So is failure to put certain witnesses on the stand. McCollum v. Watts, 5 S.W.2d 428. (f) A deed obtained by fraud is absolutely void. Delaney v. Light, 263 S.W. 819. (6) The defendant being a trustee ex maleficio could not recover for money expended on improvements voluntarily made on the property. Delaney v. Light, 263 S.W. 819; Kisling v. Yoder, 236 S.W. 867; Leslie v. Carter, 240 Mo. 574; Sayer v. Devore, 99 Mo. 455.

Bass & Bass and J. A. Razovsky for respondent.

(1) The law presumes that a grantor has the mental capacity necessary to support a valid conveyance and the burden of proving the contrary rests upon him who challenges the conveyance. Reaves v. Pierce, 26 S.W.2d 611; Richardson v. Smart, 152 Mo. 623; Jones v. Thomas, 218 Mo. 508; Masterson v. Sheehan, 186 S.W. 524; Gibony v. Foster, 230 Mo. 106; McFarlan v. Brown, 193 S.W. 800; Chadwell v. Reed, 198 Mo. 359; Crowson v. Crowson, 172 Mo. 691; Ruckert v. Moore, 317 Mo. 228. (2) Did the grantor have sufficient mental capacity to understand the nature of the particular transaction in question? Did he voluntarily enter into and consummate the transaction? The answer to these questions are reflected in the decree of the chancellor after having considered the pleadings and all the testimony adduced before him. And whether the court measured the mental capacity of grantor under the circumstances by the alleged rule applied to a contract or a will is of no practical consequence. Reaves v. Pierce, 26 S.W.2d 611; 3 Page on Contracts (2d) sec. 1627; Jones v. Thomas, 218 Mo. 508. (3) There is no claim nor evidence in this case that the deceased was ever afflicted with insanity or weakness of mind, prior to his illness, but that his alleged incapacity, if any, arose from intermittent conditions due to maladies said to be "diabetes mellitus" (sugar in the urine) and gangrene of his toes. The resultant reactions of delirium or fever of these disorders were incidents to the illness and not being constant, enduring, or continuous, the wisdom of the law requires proof of incapacity to perform a legal act because of these conditions, to be shown to exist at the very time a challenged act was done. Silber v. Silber, 249 S.W. 390; Richardson v. Smart, 152 Mo. 627; 3 Page on Contracts (2d) sec. 1629; Cutler v. Zollinger, 117 Mo. 103. (4) The term "undue influence" has a settled meaning. It means such influence as amounts to overpersuasion, coercion or force destroying the free agency and will power of a testator or grantor. McCollum v. Watts, 5 S.W.2d 420; Tibbe v. Kamp, 154 Mo. 545, 579; Andrew v. Linenbaugh, 260 Mo. 623; Elzea v. Dunn, 249 S.W. 933; Teckenbrock v. McLaughlin, 209 Mo. 533. (a) The charge of invalidity of the deed because of undue influence over the mind of the grantor, is not sustained unless the evidence shows that such influence amounted to a substitution of the will of the grantee for that of the grantor. There is not a particle of such evidence in this case. This charge is entirely unsupported. Crowson v. Crowson, 172 Mo. 691; Curtis v. Alexander, 257 S.W. 437; Elzea v. Dunn, 249 S.W. 937; White v. McGruffen, 246 S.W. 231; Huffnagle v. Pauley, 219 S.W. 378. (b) Such undue influence must not only exist but it must be shown to have been exercised at the time the instrument was executed. Tibbe v. Kamp, 154 Mo. 545, 580; Citing Brinkman v. Rueggesick, 71 Mo. 553; Crowson v. Crowson, 172 Mo. 691; White v. McGruffin, 246 S.W. 231; McFadin v. Catron, 120 Mo. 252. (c) The burden of proving the existence of undue influence unless fiduciary relation exists is on the contestant. Reaves v. Pierce, 26 S.W.2d 616; Tibbe v. Kamp, 154 Mo. 545; McFarlan v. Brown, 193 S.W. 192; Hamlett v. McMillan, 223 S.W. 1069; Huffman v. Huffman, 217 Mo. 182. (5) Fraud is never presumed; it must be proved. The party asserting it must make it manifest. Hardwick v. Hamilton, 121 Mo. 465; Gittings v. Jeffords, 292 Mo. 678. The proof must be clear and convincing and complete. Bross v. Rogers, 187 S.W. 38. (6) The consideration was entirely adequate. Mere inadequacy of consideration is not sufficient to authorize the intervention of equity. Reaves v. Pierce, 26 S.W.2d 611; Wigginton v. Burns, 216 S.W. 756; Hardwick v. Hamilton, 121 Mo. 465; Phillips v. Stewart, 59 Mo. 491.

OPINION

Gantt, P. J.

Action to cancel a warranty deed executed by Otto Kadlowski, deceased, on August 11, 1924. It purported to convey to defendant, Josephine Schwan, an apartment house located at 4156 and 4158 Lucky Street, St. Louis, Missouri.

Plaintiff seeks cancellation on the grounds of mental incapacity, inadequate consideration, undue influence and fraud. He also seeks an accounting of money collected for rent and property alleged to be assets of the estate of deceased and appropriated by defendant.

After making certain admissions not material, defendant answered by general denial, with a plea of payment of an adequate consideration for the real estate.

Further answering and by way of a "contingent counterclaim," defendant pleaded that if the deed is cancelled, the court should determine the amount of the indebtedness of Otto Kadlowski to her and decree same a lien on said real estate with an order of sale, or allow same as a demand against the estate of Otto Kadlowski and order its "judgment of lien" certified to the probate court for further proceedings as provided by law.

Further answering and by way of a "cross action for money paid for permanent improvements," defendant pleaded that if...