Kroenung v. Goehri

• Decision Date: 12 December 1892
• Citation: 20 S.W. 661,112 Mo. 641
• Parties: Kroenung et al., Appellants, v. Goehri et al
• Court: Missouri Supreme Court

20 S.W. 661

112 Mo. 641

Kroenung et al., Appellants, v. Goehri et al

Supreme Court of Missouri, First Division

December 12, 1892

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Reversed and Remanded.

A McElhinney for appellants.

(1) The court ought to have set aside the deed, upon the gross inadequacy of the consideration named therein, and the unconscionableness of the transaction. Railroad v Brown, 43 Mo. 294; Durfee v. Moran, 57 Mo. 374; Nelson v. Betts, 21 Mo.App. 219; 1 Story's Equity Jurisprudence, sec. 246. Fraud may be presumed on account of the gross inadequacy of the consideration named. Kerr on Fraud & Mistake, pp. 186, 187; Butler v. Haskell, 4 Des. 651, and other cases referred to in Bump's notes. (2) The court erred in the written opinion, that laches can be imputed to the infant plaintiffs, during their minority, and within the period of limitation. Littleton, secs. 402, 726; Chambers on Infancy, top p. 416; Tyler on Infancy [2 Ed.] top p. 167; Small v. Dee, 2 Salk. 416; Stowell v. Zouch, Plowden's Reports, 364; Whaley v. Elliot, 1 A. K. Marshall; Ware v. Brush, 1 McLean, C. C. 533; State v. McKnight, 1 Bay. 65; Pugh v. Ball, 1 J. J. Marshall, 399; Gillespie v. Bailey, 12 W.Va. 399; Washington v. Huger, 1 Des.; McMillan v. Rushing, 80 Ala. 406.

R. H. Stevens for respondents.

(1) The consideration for the conveyance is the most valuable known to the law. Cadwallader v. West, 48 Mo. 499; Jackson v. Wood, 88 Mo. 76; Callery v. Miller, 1 N.Y.S. 88; Rankin's Adm'rs v. Wallace, 14 S.W. 79. (2) The appellants are barred by laches; after a silence for ten years, and after all the material witnesses for defendants are dead, a court of equity will grant no relief. Burdett v. May, 100 Mo. 15; Lenox v. Harrison, 88 Mo. 498; McCartin v. Adm'r, 11 A. (N. J.) 156; Sebring's Adm'r v. Sebring's Adm'r, 10 A. 193; Sanchez v. Dow, 2 So. 842; Allen v. Colburn, 17 Mo.App. 1090; In re Gardner, 41 N.W. 505; Champion v. Woods, 21 P. 534; Sheffield Iron & Land Co. v. Neill, 6 So. 1; Johnson v. Standard Mining Co., 39 F. 304; Lynch's Adm'r v. Venneman, 18 A. (N. J.) 468.

OPINION

Black, J.

Casper Kroenung died in the latter part of June or the first of July, 1880, leaving as his devisees and heirs at law two grandsons, the sons of a deceased son. These grandsons were minors at the time of the death of their grandfather, being then of the age of five and eight years respectively. They brought this suit by their guardian on the twenty-sixth of February, 1890, to set aside a deed and bill of sale, both executed by their grandfather to John Goehri. The deed bears date the eleventh of May, 1880, and conveys one hundred and seventeen acres of land shown to have then been of the value of $ 2,000 or $ 3,000. It was made upon the following consideration as therein expressed: "That whereas the said John Goehri has and does hereby agree and covenant with the said Casper Kroenung to board, wash for and wait on the said Casper Kroenung, and perform such other duties as may be required by the said Kroenung during the natural life of said Casper Kroenung; in addition to which the said John Goehri agrees to pay to the two grandsons of the party of the first part, namely, Albert and Martin Joseph Kroenung, when the youngest of them becomes of legal age, the sum of $ 1,200." The bill of sale bears date the eighteenth of May, 1880, and by it the vendor sold to the vendee all of his farming implements, carpenter tools and household furniture, the title to vest in the vendee upon the death of the vendor, for the consideration of $ 160 to be paid to the two grandsons when the youngest should become of age.

It will be seen from the dates before mentioned that Casper Kroenung died in 1880, three or four weeks after the date of the deed. John Goehri, the vendee, continued in the possession of the land down to his death in 1889. He and his wife died about the same time, leaving several minor children, who with the administrator of the Goehri estate are made defendants in this suit. The grounds upon which the plaintiffs seek to set aside the deed and bill of sale are inadequacy of consideration, fraud and undue influence practiced by the vendee.

The evidence discloses the following facts: Casper Kroenung was seventy-five years of age at the date of the transaction now in question, and had been a widower for several years, having no relative in his household. John Goehri had been his tenant for three or four years. Goehri and Kroenung resided in the same house, though the latter occupied a separate room and cooked for himself until three or four months before he died, during which time he boarded with Goehri. Kroenung executed a will in November, 1879, by which he devised and bequeathed his property, real and personal, to his two grandsons, the plaintiffs in this case. In the summer or fall of the same year, the exact date is not given, he took his deeds to a justice of the peace and requested the latter to prepare a deed conveying this land to Goehri upon substantially the same terms as those stated in the deed now in dispute. The justice advised him not to make the deed on such terms, and at the same time advised him to consult his brother and a nephew who resided some five or eight miles distant. These relatives also advised against the proposed transaction. Thus matters stood until the eleventh of May, 1880, at which time Goehri requested the same justice to go to the Kroenung residence and prepare a deed. The justice obeyed the request, and it was then the deed now in question was signed and delivered to Goehri. At that time Kroenung was confined to his bed, and was in a helpless condition from paralysis of the right side. He had been in this condition for one, two or three weeks, the exact date is not stated. The evidence shows that Goehri had been endeavoring to get a deed to the land for one or two years, but Kroenung had resisted all such efforts through the advice of friends. After Kroenung was stricken with paralysis, he requested Goehri to inform his, Kroenung's, brother and nephew, and have them come to his assistance. They did not come, and it is clear that he made the deed laboring under the false impression that they had been informed of his helpless condition, and declined to aid him in his hour of distress.

All this is shown by the testimony of the justice of the peace and several neighbors. It also appears that Goehri did not see or even send word to this brother and nephew, who resided five and eight miles distant. The property described in the deed and bill of sale constituted the entire property of the vendor, except some notes of the face value of $ 2,100, but much less in real value.

William Kramer testified: "I saw Goehri down at the creek and asked him how the old man was getting along; he said he was in a bad condition, and added that he wished the old man would live a year or two longer so he could make a better trade. I asked him if he went to see the old man's brother and nephew to tell them how the old man was. He said he did not go; that he started and got as far as Hoppenburg's and went back; that he wanted to make a trade with the old man and that was a good time to do it; that he wanted to make a bargain with the old man and that was a good time to do it." It appears Kroenung fell from a chair on which he was sitting at the time he was stricken with paralysis, and that Goehri spoke of this incident in the conversation just recited. The witness being asked what Goehri said about it answered: "He said he told him if he did not get up and make a bargain with him he would let him lay there in his dirt and die." "Q. He said what?" "He said if he, meaning the old man, did not get up and make a bargain with him he would let him lay there and die in his dirt. I do not know that he particularly used the words 'get up.' I don't suppose the old man could get up, but he did say that he told him if he did not make a bargain then he would let him lay in his dirt and die."

This witness says Mr. Wardenburg was there, and heard the conversation. Wardenburg being called, testified "I asked Goehri how it happened that he got the land so cheap. He said the old man was compelled to sell it to him. He said he told the old man if he did not sell it to him on his own terms he would leave him there to die in his own dirt. He said that when Kramer was present. He said the same...