Keane v. Kyne

• Decision Date: 06 June 1876
• Citation: 2 Mo.App. 317
• Parties: PAUL A. KEANE, Appellant, v. BRIDGET M. KYNE, Respondent.
• Court: Missouri Court of Appeals

2 Mo.App. 317

PAUL A. KEANE, Appellant,

v.BRIDGET M. KYNE, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. It is error to compel a defendant to elect between two defenses, when both may be true. Such election can be compelled only when, if one defense be true, the other must necessarily be false.

2. The rule that a grantor in a fraudulent deed can have no relief against the effect of his own conveyance has no application to a conveyance made without any fraudulent design, and because of a misapprehension by the grantor concerning his legal rights.

3. Effect given by the Court of Appeals to preponderance of evidence in a chancery case.

APPEAL from St. Louis Circuit Court.

General term affirmed, special term reversed, and bill dismissed.

Jecko & Hospes and Sam Erskine, for appellant, cited: Henderson v. Henderson, Exr., 13 Mo. 151; Kelly v. Johnson, 28 Mo. 251; 2 Washb. on Real Prop. (3d ed.) 447, and note; 4 Kent's Com. 305, and note; Willis on Tr. 55; Sugden on Vend. (9th Lond. ed.) 170; Belden v. Seymore, 8 Conn. 312; Philbrook v. Delano, 29 Me. 410; 2 Story's Eq., secs. 1199-1201; Leman v. Whitney, 4 Russ. 422; Squire v. Hardin, 1 Paige, 494; 1 Story's Eq., secs. 297-300, and note; Smith v. Bromley, Dougl. (Mich.) 695-697; Bump's Fr. Conv. 83; Curtis v. Perry, 6 Ves. jr. 746; Plattmore v. Staple, Coop. Eq. Pl. 250; Hill on Tr. 171, sec. 109; Rathburn v. Rathburn, 6 Barb. 78.

Marshall & Barclay, for respondent, cited: Morey v. Stanley, 54 Mo. 419; Hall v. Hoffman, 32 Mo. 519; Wag. Stat. 656, sec. 4, p. 1372, sec. 1; Poe v. Dornec, 54 Mo. 119; 1 Greenl. on Ev., sec. 40; Hill v. Bacon, 43 Ill. 477; Forrester v. Scoville, 51 Mo. 268; Dallam v. Renshaw, 26 Mo. 533; Kerr on Fraud, sec. 384; Bernecker v. Miller, 44 Mo. 102; Rumbolds v. Parr, 51 Mo. 592; Cravens v. Jamison, 59 Mo. 68; Story's Eq. Pl., secs. 241, 242; Orton v. Smith, 18 How. 263; Polk v. Pendleton, 31 Md. 118; Herrington v. Williams, 31 Texas, 448; Barron v. Robbins, 22 Mich. 35; Lake Road Co. v. Bedford, 3 Nev. 399; Harris v. Smith, 2 Dana, 11; Alton Ins. Co. v. Buckmaster, 13 Ill. 205; Schools v. Risley, 40 Mo. 356; Draper v. Shoot, 25 Mo. 197; Perry on Tr. (2d ed.), sec. 125 (class 5); 1 Lomax Dig., sec. 200 (class 3); Cloud v. Ivie, 28 Mo. 578; Perry on Tr. (2d ed.), sec. 124; Henderson v. Dickey, 50 Mo. 161; Jayne v. Boisgerard, 39 Miss. 796; Torrent v. Muskegon County, 22 Mich. 21; McAfee v. Lynch, 26 Miss. 257; Ross v. Young, 5 Sneed, 627; Huntingdon v. Allen, 44 Miss. 654; Matthews v. Leaman, 24 Ohio, 615; Johnson v. Hauston, 17 Mo. 58; Foster v. Reynolds, 38 Mo. 553; Smalley v. Hale, 37 Mo. 102; Nelson v. Broadack, 44 Mo. 596; Orton v. Smith, 18 How. 263.

LEWIS, J., delivered the opinion of the court.

The petition states that, from the 9th day of April, 1863, plaintiff has been lawfully seized and possessed in fee simple of three certain lots in Kingsbury's addition to the city of St. Louis; that, only on the day before the filing of the petition, plaintiff was first informed that defendant pretended to have title to said lots by virtue of a deed purporting to have been executed by plaintiff and his wife to defendant, on February 10, 1873; that said deed is a forgery, and not the act or deed of plaintiff or his wife, and is a cloud upon plaintiff's title; wherefore plaintiff prays for the cancellation of said pretended deed, and for other appropriate relief.

The answer, after general denials, affirms the genuineness of the deed mentioned, and its sufficiency to convey the title of plaintiff to defendant. For a second defense it alleges that, on or about April 9, 1863, defendant's husband, Michael J. Kyne, since deceased, was owner of the real estate described in the petition, and, with defendant, his wife, executed a deed conveying the same to plaintiff; that this conveyance was without consideration, and was upon the express understanding and trust, then created and agreed upon by the parties, that plaintiff was to hold the naked legal title for the sole use and benefit of the said Kyne, and would reconvey to him, or to any other person, upon his request; that said conveyance was made, not to hinder, delay, or defraud any creditors or other persons interested in said estate, but only because the grantor was a person of pronounced sympathy for the cause of the armed rebellion then in progress against the government of the United States, and feared that the authorities of said government might undertake to confiscate his property on account of his said sympathy--the plaintiff being, at the same time, an obscure person, not likely to be molested on account of his political sentiments; that plaintiff never exercised any acts of ownership over said real estate; that the taxes were regularly paid by Kyne; that, on February 10, 1873, upon Kyne's request to that effect, plaintiff and his wife executed and delivered the deed conveying the property to defendant. Plaintiff replied, denying all the allegations in the answer antagonistic to his claim.

The Circuit Court, in special term, decreed for the plaintiff, declaring the deed of February 10, 1873, to be void, divesting all title to the land out of the defendant, and vesting the same in the plaintiff. This judgment was reversed in general term, whereupon plaintiff appealed.

In the course of the trial the court required the defendant to elect between her two defenses, ruling that she “could either deny the forgery only, or could admit the forgery, and amend so as to make the answer a cross-bill for relief, on the ground that Keane was a mere trustee for Mr Kyne in regard to the land in suit.” This was error. There was no inconsistency between the two defenses. They might be equally true in point of fact. It is only when, if one defense be true, the other must necessarily be false, that a party may be required to elect upon which he will stand.

The defendant here refused to elect as required, whereupon the court refused to hear any testimony in support of the second defense. It is argued for the plaintiff that this action by the court was right, because it appears that the deed of Kyne to the plaintiff was voluntary, and made with a fraudulent intent. Authorities are cited to show that no relief against such a deed can be obtained by the grantor. But they fail of application to this case, for the reason that no fraudulent intent is here apparent. The Federal government could assert no claim to Kyne's land, by reason of his sympathy, of whatever description. His groundless apprehension, growing out of a misconception of his legal rights and of the fundamental principles of our beneficent form of government, might convict him of inexcusable ignorance. But this, although the country may have been at the time overrun with teachers of constitutional law, could hardly be set down as either a crime or a fraud.

The question, how far a voluntary conveyance, not affecting, directly or indirectly, the rights of any third parties, may be treated as raising a resulting trust in favor of the grantor, has never been clearly determined in Missouri. The English doctrine, as applied to common-law conveyances, holds that a man cannot be supposed to part with his property without some benefit to be derived from the act; and, as he gets no other consideration, the presumption arises that he is to enjoy the use of the land in the hands of his grantee. American statutes regulating conveyances of real estate, including the statute of frauds, have given rise to many nice distinctions, and some contrariety of views, upon questions similar to the one directly concerned here. By some courts a material point is made upon the presence or absence of a general warranty in the deed. The record in this case contains no copy of the deed of 1863, nor any precise information of its form or contents. It would, therefore, be impracticable, even if desirable, for us to pursue the analogies and develop the analysis which would be essential to a satisfactory solution of the inquiry. The demand for such an undertaking, however, is really superseded by the conclusion we reach upon another point in the case.

Proceeding to consider, as is proper in chancery cases, the force of the testimony adduced on either side, with reference to the execution of the deed from plaintif...