Kinzer v. Kinzer

• Citation: 130 Mo. 126,31 S.W. 577
• Parties: KINZER et al. v. KINZER et al.
• Decision Date: 18 June 1895
• Court: United States State Supreme Court of Missouri

31 S.W. 577

130 Mo. 126

KINZER et al. v. KINZER et al.

Supreme Court of Missouri, Division No. 2.

June 18, 1895.

APPEAL — REVIEW — SUFFICIENCY OF ANSWER — OBJECTION NOT RAISED BELOW.

It cannot on appeal, for the first time, be claimed that the allegation of the complaint that a deed was obtained without consideration was not sufficiently met by a general denial, but that it required an affirmative answer, showing what the consideration was.

Error from circuit court, Butler county; John G. Wear, Judge.

E. R. Lentz and G. A. Standard, for plaintiffs in error. Dinning & Byrns, for defendants in error.

BURGESS, J.

A suit in equity by plaintiffs, who are children and the only heirs at law of Elias E. Kinzer, deceased, to cancel and set aside a certain deed executed by said deceased to the defendant Kinzer, on the 13th day of December, 1888, conveying to him an undivided one-fourth interest in a tract of land in Butler county, Mo., upon which is located the greater portion of Kinzer's addition to the city of Poplar Bluff. Elias E. Kinzer died December 27, 1888. Defendant Kinzer, before the commencement of this suit, conveyed by quitclaim deed a one-third interest of the one-fourth interest which he acquired from Elias E. Kinzer to the defendant Ruth, and also a similar interest to one John Mengel, who subsequently died, leaving the defendants Mengels, his widow and children, his only heirs at law. The action is predicated on the want of capacity, mentally and physically, of the said Elias E. Kinzer to transact any kind of business, at the time the deed bears date, to wit, December 13, 1888, and that the defendant, knowing his condition, took advantage of his sickness and mental incapacity, and induced him by falsely, fraudulently, and corruptly representing to the said Elias E. Kinzer that the deed he was signing was for tax-title lands in Butler county, Mo., which he had agreed to sell to the defendant Kinzer, when in truth and in fact he was signing the deed in question, conveying his undivided interest, only, in entirely different land. The answer is a general denial. The trial resulted in the dismissal of the suit, and a final judgment in favor of defendants for costs. Plaintiffs then filed their motion for a new trial, which was overruled, and they sued out their writ of error to this court. The evidence clearly shows that Elias E. Kinzer, deceased, signed and acknowledged the deed in question. Indeed, it is so alleged by plaintiffs in their petition. This being true, the burden of proof rested upon them to show want of capacity in the grantor to execute the instrument, or that it was obtained from him by W. H. H. Kinzer by fraud and deceit. The testimony of the witnesses, with but few exceptions is remarkable for the many incongruous and inconsistent statements, and none more so than that of the plaintiff William P. Kinzer. After stating that the defendant Kinzer came to his father's house, at the time the deed was executed, at his father's request, he also stated that his father owed him (w...