Lack v. Brecht

• Citation: 65 S.W. 976,166 Mo. 242
• Court: United States State Supreme Court of Missouri
• Decision Date: 26 November 1901
• Parties: LACK v. BRECHT.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 976

166 Mo. 242

LACK v. BRECHT.¹

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

CONVERSION—FRAUD—REFERENCE—FINDINGS OF REFEREE — CORRECTION — EVIDENCE — SUFFICIENCY — COUNTERCLAIM — INNOCENT PURCHASER—REPUDIATION OF CONTRACT— ESTOPPEL—RATIFICATION — DAMAGES — INTEREST—APPEAL.

1. Where defendant in an action for conversion sets up a counterclaim for services and goods furnished plaintiff, a referee's finding which specifically allows a portion of the items thereof is sufficient to show that the referee passed on the counterclaim.

2. The court may amend and correct the findings of a referee in a cause in which a compulsory reference is authorized.

3. Evidence that real estate is reasonably worth over $19,000, and has yielded a net income of $2,000 for one year, is sufficient to support a referee's finding, in an action for damages for fraudulently procuring a deed to the property and selling the same for $16,500, that the property owner has been damaged in the sum of $2,500 in addition to such selling price.

4. The nephew of a person of unsound mind induced the latter to convey her real estate to him, and he conveyed the property, before the insanity of the original owner was adjudicated, to one having no knowledge of the facts. Held, that the guardian of such insane person could not repudiate the sale, but could only recover the purchase price and damages from the nephew.

5. The nephew of an insane person, who has charge of the latter, is not entitled to compensation from her estate for services rendered in carrying out a fraudulent purpose of acquiring her property for his own benefit.

6. The guardian of an insane person may maintain an action against a person who induced the ward to convey her property to him before she was adjudicated insane, and who sold the same, to recover the purchase price and damages therefor, even though the guardian is entitled to repudiate the latter sale.

7. The acceptance by a guardian of an insane person of the proceeds of a sale of the property of the latter, by one who fraudulently induced the insane person to make a conveyance thereof, is not a ratification of the sale which will estop the guardian from suing the party guilty of the fraud for damages resulting from such disposition of the ward's property.

8. Where the guardian of an insane person brings action against the person formerly having care of such insane person for money of the latter procured and converted by the defendant, who pleads a counterclaim, the judgment bears interest from the date of the conversion at 6 per cent. as authorized by Rev. St. 1899, § 3705, on judgments for conversion, as the action is for conversion, and not for an accounting.

9. Under Rev. St. 1889, § 4430 (Rev. St. 1899, § 2869), providing that the jury, on the trial of an issue or any inquisition of damages, may give damages in the nature of interest over and above the value of the goods at the time of the conversion, interest may be allowed by a referee on a sum recovered for damages for fraudulently obtaining a conveyance of plaintiff's real estate, and selling the same, and converting the proceeds, as the statute, being remedial, is not strictly limited to the conversion of goods.

10. The common-law rule, authorizing damages in the nature of interest in actions of conversion, is not limited to actions for the conversion of goods by Rev. St. 1889, § 4430 (Rev. St. 1899, § 2869), authorizing such damages for the conversion of goods, as the statute is merely declaratory of the common law.

11. A widow, who was the aunt of defendant, resided with the latter in a house partly furnished by him. She was possessed of considerable property, and defendant collected and retained the rents thereof, and obtained possession of money belonging to her. The widow was thereafter adjudged insane, and, in an action by her guardian to recover the rents, profits, and money from the defendant, the latter testified that the widow had agreed to pay for the furnishing of the house; but there was evidence that she never regarded the furniture as belonging to her. Held sufficient to sustain a finding that defendant was not entitled to a credit for the cost of the furniture.

12. Where there is evidence to support a finding of fact by a referee and trial court, it will not be disturbed on appeal.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action of conversion by Emilie Lack, an insane person, by Charles Scudder, as guardian, against Gus A. V. Brecht. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Lubke & Muench, for appellant. John M. Wood and M. Kinealy, for respondent.

GANTT, J.

This action was commenced by the guardian of Mrs. Lack, an insane person, in her lifetime, and proceeded to judgment; but since the appeal has been pending in this court she has died, and by proper proceedings the cause has been duly revived in the name of George H. Bowles, her administrator with the will annexed. The petition contained two counts. The first stated that upon inquest duly made Mrs. Lack had been found and adjudged of unsound mind, and Charles Scudder appointed her guardian, by the probate court of the city of St. Louis; that prior to the inquisition for that purpose she was of weak mind, and unable to attend to business, and lived with the defendant, Gus A. V. Brecht, who was her nephew; that defendant, taking advantage of her condition, without her authority or consent, took charge of her affairs, and collected the rents of her real estate to the amount of $1,985.37, and the rents of other real estate, in which she had a life estate, to the amount of $1,199.17, and certain life insurance to the amount of $69.45, and converted the same to his own use, and also a certain note of $2,000 executed by his father to Mrs. Lack,—for all of which she asked judgment by her guardian. For a second cause of action the petition alleged that defendant, taking advantage of her mental infirmity, induced her without any consideration to sign a conveyance of her real estate in the city of St. Louis to one Nunn for the recited consideration of $15,000, on pretense that the document was a paper relating to her taxes, and then caused said Nunn to convey said real estate to Mrs. Henriette Parsons for $16,500 cash, which moneys he received and converted to his own use; that this transaction became known to the sister of Mrs. Lack, and upon her complaint and demand the defendant executed two notes, one for $15,000 and the other for $1,500, which he secured by a deed of trust on certain real estate, which notes eventually came into the hands of the guardian of Mrs. Lack; that by said conveyance her real estate was lost to her, and she was damaged $38,000,— for which sum, less the amount, if any, which might be collected on said notes for $1,500, she prayed judgment. To this amended petition appellant filed an amended answer, in which, as to the first count, he denies all the allegations not expressly admitted by him, and states that the total amount received on account of the matters therein set forth was $4,272.94, and that he expended for respondent the sum of $5,144.88, a statement of all which receipts and expenditures is on file in this case; that respondent, on December 22, 1891, presented him with all the income of her property and all her cash on hand, and presented to him on a later day all her household effects; and that, if these gifts be held invalid, she owes him a balance on the above account of $869.94, for which he asks judgment. As to the second count, appellant says that he denies all the allegations thereof, not expressly admitted; that the real estate in question was sold by appellant, at respondent's instance and request, for the sum of $16,500; that the $1,500 and the $15,000 notes were in full of all demands of respondent against appellant; and that since the commencement of the suit plaintiff received full payment of those notes. For reply to this answer respondent filed general denials. On motion of defendant the cause was referred to a referee to try and report on all the issues. The referee, on the first count and the answer thereto, stated an account and reported a balance in favor of plaintiff for $1,471.04, with interest at the rate of 6 per cent. per annum from February 9, 1892; and on the second count he found in favor of plaintiff for $2,500, with interest at 6 per cent. per annum from February 9, 1892. On exceptions to the report by plaintiff the court disallowed an item of $140 which the referee allowed defendant for personal services to Mrs. Lack, and overruled defendant's exceptions to the report, and rendered judgment for $5,451.22, the sum of the findings on both counts,—principal and interest to date of judgment.

The referee's report states the facts developed in the evidence and his findings thereon. The report shows a clear grasp of the evidence and its probative effect, and, but for the great space it would occupy, would be set out in full. Suffice it to say that, from it, it clearly appears that Mrs. Lack, prior to her marriage, was Miss Emilie Brecht, and had accumulated property in her own right. In 1875 she married Frederick Lack, a clergyman and a widower, with children, and superintendent of the Provident Association, a St. Louis organization engaged in relieving the poor. Here he and his wife resided until his last illness. Some months before his death Mr. Lack was removed to a hospital, where he died in February, 1891. By his will he bequeathed all his personal property to his wife absolutely, and his real estate to her for life, remainder to his two children by a former marriage. He appointed his wife executrix without bond. Mrs. Lack had no children,—her relatives being a brother of the whole blood, Gustav V. Brecht, the father of defendant; a sister of the half blood, Mrs. Ida A. King; and two children of Oscar Brecht, a deceased brother of the half blood....