"This is a suit in equity to cancel and set aside a deed of conveyance of 110 acres of land in Newton county, executed by plaintiff to the defendant, dated October 28, 1912, and for an accounting of the rents, profits, and proceeds of said land charged to have been received and appropriated by defendant, and also for certain personal property of plaintiff described in the petition and alleged to be the property of plaintiff and to have been unlawfully taken and converted to his own use by the defendant.
"It further states that the defendant was the husband of plaintiff's sister; that the plaintiff had lived with them many years; that the plaintiff trusted him implicitly, and that he had full charge of plaintiff's business affairs and property; that for a long time prior to said date the plaintiff was of weak mind and incapable of managing his own affairs, and was dominated and controlled by the stronger will of defendant and his wife, until at said date he was insane and afflicted with delusions and hallucinations; that, taking advantage of said mental condition, and in the exercise of such control, defendant caused and compelled the plaintiff to make said deed, which was entirely without consideration and a cloud upon plaintiff's title; that defendant took possession of said land, and proceeded to farm the same and to collect the rents and profits, which were of the yearly value of $300, while the personal property so taken (which was not described) was worth about $2,000.
"The answer, after the general denial, pleads, in substance, that the deed was executed for a consideration of $5,300, to be satisfied by permitting the plaintiff to make his home permanently with defendant and his family free from cost; the defendant should provide the plaintiff with all the necessaries of life and with such money as he might from time to time require of defendant, all of which was fully agreed between them, and the deed placed of record at the special instance and request of plaintiff; that the plaintiff was then of sound mind, and perfectly free and able to control, and did control, all his own business affairs without the aid of any person; and that defendant has at all times and ever since faithfully performed all the terms of his said agreement, and for six years remained in the quiet possession and enjoyment of the land, openly asserting his ownership, paying all taxes, and making valuable improvements to the amount of several thousand dollars, in good faith and in reliance upon his title under said deed, without any claim on the part of plaintiff, whereby the plaintiff is estopped from asserting title as against his said deed.
"It asks that the court adjudge the defendant to be the absolute owner of the land and that the plaintiff has no interest therein except as to such portion of said consideration, if any, as the court shall find due to him by the terms of said agreement; and that, if the court should find the plaintiff entitled to the cancellation of said deed, the defendant be reimbursed in the reasonable value of such improvements, and for the reasonable value of his care, expenditures, and services under said agreement up to the time plaintiff was adjudged insane, and for general affirmative relief.
"The cause was duly taken by change of venue to the circuit court for Greene county, where, upon trial, the court entered its judgment and finding that at the time of the execution and date of said deed the plaintiff was of unsound mind and incapable of understanding the nature and effect of the act; that the defendant had, since that time, made permanent improvements on said land of the value of $1,500; and that the value of the yearly rents and profits is $300. The judgment concluded as follows:
"`Wherefore, it is ordered, adjudged, and decreed that the said deed dated October 28, 1912, purporting to convey from the plaintiff to the defendant the foregoing described lands, be set aside and for naught held, and that the plaintiff recover of and from the defendant the possession thereof, and that a writ of restitution issue thereof, and that there be declared and established in favor of defendant a lien against said lands for the sum of 41,500, the value of said improvements, and that a
special execution issue to enforce said lien, and that plaintiff recover from defendant his costs in this cause incurred and expended.'
"Both parties, after the necessary steps in the trial court, have appealed to this court. The only questions raised relate to the propriety of the judgment upon the facto in evidence; the plaintiff appealing from the allowance to the defendant of $1,500 for improvements and refusing an accounting as asked, and the defendant from the provision of the judgment canceling the deed.
"The deed in question is a warranty deed in ordinary form made on October 28, 1912, and purports to convey the 110 acres of land in Newton county here in question, with the usual covenants of warranty, for the consideration of $5,300. The grantor (plaintiff) is described as a single man. It was acknowledged on the day of its date before the probate judge of Newton county at Neosho, and filed for record on October 25, 1913. There seems to be little question about the facts upon which the findings of the court were predicated. Albert Kisling, the plaintiff, was, at the time of the conveyance, about 40 years old, and the farm in question had been the homestead of his father and of his mother, who survived her husband, and had come to him by devise from her, and he had resided on it, farming it himself, the most of the time. One of his brothers (Godfrey) had become insane and was sent to an asylum. After his mother's death one of his sisters kept house for him, but she married, and he then lived alone, doing his own housekeeping. He was tidy in habit and usually clean-shaven. During this time he formed the acquaintance of one Adele Buechner, a young woman of the neighborhood, who was afterward the complainant in the proceeding in the probate court in which he was adjudged to be of unsound mind. Mr. Kempf was appointed his guardian, with his brother Samuel Kisling and his brother-in-law Mr. Eck as sureties upon his guardian's bond. His acquaintance with Miss Buechner was such that after her removal with her family to Iowa he addressed her in letters written for him by his sister, the wife of the defendant, as his sweetheart, and urged her to come to Missouri and marry him. He was unable to write, though he could sign his name.
"As early as 1910 he became obsessed with the idea that his relatives were endeavoring to poison him so that they might have his property. This he told to numerous persons who testified in the case. His habits changed. He became untidy, permitting his hair and whiskers to grow uncared for, and paid little attention to his dress or to the care of his person. Judging from the number of witnesses who testified to conversations with him on that subject, it must have been well grounded in his consciousness. The first of his letters to Miss Buechner, written December 17, 1912, says he has still been able to take care of the stock; had about 35 acres plowed for spring crops; his wheat is looking fine; and that he liked to hear the talking machine for it made nice music. On May 14, 1913, he again writes to her. He asks for her phone number, and says that if there is none at her house to give him that of one of her neighbors, so that if he should wanshould want to come he could call them up and they could tell her. On the 17th of the same month he wrote that he was not very well, but: had to work whether able or not, and `don't like to take the trip,' and asked, `Why can't you come if you want to be my sweetheart for the rest of my life I will make a home for you,' and reminds her that she is the first girl he ever fell in love with and that he thinks it would be best for him to get married, `and when I get sick I would have some one to care for me and I think it would be best for you,' and proposed to send her the money. On June 2d he again writes, urging her to come, telling her that he has a good farm and money in the bank and is going to build a house as soon as he gets married, and if she wants to be his wife to come and help him harvest his wheat and bring one of her brothers; that if she cannot get ready at once to get one of the boys to come. On June 21st he wrote again, urging her to come, and reminding her that she knows he can make a good home for her, and promising to pay her expenses if she should not desire to stay, telling her, among other things: `Some of my folks would like to see me die. I think they would like to get my farm and money.' He also says: `I did not like to tell you about this trouble for I thought you would not believe it for there is quite a number of my neighbor feels sorry for me one told me that I should get merit and this trouble would all stop for I believe that myself for I would have somebody for proof for the put the medison in my water well I took a drink of water some weeks ago and got very sick so you know...
