Lauffer v. Smith

• Decision Date: 09 July 1935
• Citation: 85 S.W.2d 94,337 Mo. 22
• Parties: Christina Lauffer, Executrix of Frank Lauffer, Josephine Sunner, Frances Morrison and Christina Lauffer v. P. A. Smith and Cora Smith, Husband and Wife, Appellants
• Court: Missouri Supreme Court

85 S.W.2d 94

337 Mo. 22

Christina Lauffer, Executrix of Frank Lauffer, Josephine Sunner, Frances Morrison and Christina Lauffer v. P. A. Smith and Cora Smith, Husband and Wife, Appellants

Supreme Court of Missouri

July 9, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Jerry Mulloy, Judge.

Affirmed.

T P. Hukriede and James Booth for appellants.

(1) If one be capable at the time to know the nature, character and effect of the particular act, that is sufficient to qualify him for the execution of a warranty deed. Chadwell v Reed, 198 Mo. 382. (2) In an equitable action the appellate court, on appeal, will try the facts de novo and will reverse the judgment of the lower court on the facts when convinced that the findings of the chancellor are against the weight of the evidence. Shaw v Butler, 78 S.W.2d 420; Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 117; Manahan v. Manahan, 52 S.W.2d 825; Scott v. Hill, 330 Mo. 490, 50 S.W.2d 110; Norton v. Norton, 43 S.W.2d 1024. (3) Even conceding the truth of respondents' evidence, no fiduciary relationship or relationship of trust was shown in this case, and the burden of such showing was on respondents. Elzea v. Dunn, 249 S.W. 936; Shaw v. Butler, supra. (4) Fraud is never presumed and while it may be proved by circumstantial evidence, yet if the transaction relied upon to prove fraud is as consistent with honesty and good faith as with a fraudulent purpose, it will be referred to the better motive. Walsh v. Walsh, 285 Mo. 181. (5) The deed was one not absolutely void but voidable at the election of plaintiffs, provided that the evidence justified such holding. Restatement of the Law on Contracts, secs. 13, 475, 476; Bispham's Principles of Equity (3 Ed.), sec. 1472, p. 521. (6) The deed being voidable and not void, the parties seeking to cancel the deed, as a condition precedent to such relief, must be required to place the defendants in statu quo. Wood v. Telephone Co., 223 Mo. 567; Restatement of the Law of Contracts, sec. 480; Implement Co. v. Ellis, 125 Mo.App. 696. (7) Defendants' evidence having tended to prove that at times Frank Lauffer possessed a normal mind and was capable of the transaction of business, the burden was on plaintiffs to prove that he did not have such a mind at the particular time complained of. Silber v. Silber, 249 S.W. 390; Hamlett v. McMillian, 223 S.W. 1069. (8) When a later contract is entered into between the same parties relative to the same subject matter as an earlier one and fully covering all the terms of the first, then the second contract supersedes the first. Herroth v. American Radiator Co., 123 S.W. 533; Chrisman v. Hodges, 75 Mo. 413; Tuggles v. Callison, 143 Mo. 527; Fulk v. Williams, 37 S.W.2d 511; Employees Indemnity Corp. v. Garrett, 38 S.W.2d 1049. (9) By retaining the consideration paid and standing by and witnessing defendants making valuable improvements and paying taxes on said land for four and one-half years, without objection on part of plaintiffs, they were guilty of such laches as to bar any right of relief in this case; and by retaining the consideration paid, they affirmed and ratified the conveyance complained of, and are now estopped to deny its validity. Ebel v. Roller, 21 S.W.2d 216; Implement Co. v. Wally, 268 S.W. 912; Restatement of the Law of Contracts, sec. 484; Hatcher v. Hatcher, 139 Mo. 614.

Adolph G. Schumacher, D. W. Breid, Jesse H. Schaper and Randolph H. Schaper for respondents.

(1) There was substantial evidence introduced at the trial to support each count of the amended petition of plaintiffs and, therefore, the trial court did not err in rendering its finding and judgment for plaintiffs and against defendants on each count of said petition. Bispham's Principles of Equity (4 Ed.), sec. 230, pp. 290, 291; 27 C. J., sec. 171, p. 46. (a) Deed result of mistake and fraud. The deed sought to be reformed in this case was executed by Frank Lauffer and Christina, his wife, by mistake made on their part and by fraud practiced upon them by defendants by concealing their knowledge from them to the effect that said deed did not embody the actual agreement theretofore made in writing between the parties thereto but that said description of all that part of Block 1 of George M. Schmich's Subdivision in the City of Union, Missouri, situated north of said highway was incorrectly embodied in said deed so as to describe and convey to defendants all that part of Block 1 of George M. Schmich's Subdivision in the City of Union, Missouri, situated north of State Highway No. 12 in addition to the lands described in the contract of sale February 17, 1927, and, therefore, the trial court was justified in reforming said deed by striking out of the same all that part of Block 1 of George M. Schmich's Subdivision in the City of Union, Missouri, situated north of State Highway No. 12. 2 Pomeroy's Eq. Jur., sec. 870; Kerr on Fraud and Mistake (Am. Ed.), p. 409; Browne on Parol Evidence, sec. 43; Koffman v. Southwest Mo. Elec. Ry. Co., 95 Mo.App. 459; McGhee v. Bell, 170 Mo. 121. (2) The trial court did not err in finding and holding that defendants made the improvements on the premises sued for without authority from plaintiffs and with full knowledge of plaintiffs' superior title to said premises, and, therefore, said improvements were not made by the defendants in good faith.

OPINION

Hays, J.

This is a suit brought by the life tenant and the remaindermen who took under the last will of Frank Lauffer, deceased, to reform a deed and to quiet title to a plot of ground conveyed by Frank Lauffer and his wife on February 25, 1927, to the defendants, husband and wife, purporting to convey to them all of blocks 1 and 2 of George Schmich's subdivision in the city of Union, Franklin County, except United States Highway No. 50 (60 feet in width) which runs east and west diagonally across said property.

Prior to the execution of the deed the grantors had given the defendant an option contract in writing, executed by themselves and the defendants, for the purchase by the latter of that part of said blocks lying south of the highway, the contract containing a description of the property by metes and bounds. The agreed consideration was $ 2250 of which $ 100 was paid as earnest money and the remainder was to be paid on delivery of the deed.

The petition, framed in two counts, charged that the part of said blocks lying north of the highway was included in the deed under mistake on the part of the grantors and fraud was practiced upon them by the grantees by taking advantage of the grantors and by inducing them to believe that the property described in the deed was the same as that described in the prior contract of the parties, and no more. By the first count the petition prayed that the deed be reformed by voiding and striking out that part of it purporting to convey that part of said property lying north of the highway. The second count was designed, by the adoption of the constitutive allegations of the first count and by the prayer of the second, to ascertain, determine and quiet title of plaintiffs to said ground north of the highway. The petition stated at great length the condition of Frank Lauffer and the surrounding facts upon which the allegations of mistake and fraud were bottomed. Substantially as pleaded they were as follows:

At the time of the execution of the deed Mr. Lauffer was old (84 years of age), infirm, almost blind, and could not read or write, except his own name, he was also partially paralyzed and had nervous spells. Both he and his wife were suffering from loss of the sense of hearing, and were incapable of understanding the description in the instruments, particularly the description by metes and bounds. Undue advantage was taken of them by defendants in the execution of the deed, in that it was drawn by the defendants through their agent, and Lauffer and his wife were not advised nor were they aware that the description therein included the property not described in the prior contract, but were of the belief that the deed conveyed the same property that was described in the contract, and none other. This mistaken belief was induced by the fraud of the defendants in concealing from the grantors their own knowledge that the deed did not correspond with the prior contract but did include also that part of said blocks north of the highway.

The answer admitted the execution of both the contract and the deed and denied generally all other allegations of the petition. It then set up laches and estoppel in pais. It stated that between the execution of the written contract of date February 17, 1927, and the execution of the deed, February 25, 1927, defendant, P. A. Smith orally contracted with Lauffer and his wife that that part of said blocks lying north of Highway 50, as well as the part lying south of the highway, was to be included in the deed and without obligation for payment of any consideration additional to that stated in the written contract; that after the execution of the deed the defendants proceeded to make valuable improvements north of the highway, viz., a concrete retaining wall, dirt fills, a filling station and concrete work; paid the subsequent taxes on the property, and occupied, used and claimed the land in suit as their own -- all with the knowledge of the plaintiffs -- without assertion by plaintiffs of claim of title.

By reply the plaintiffs admitted the making of said improvements and averred that they at the time of such improvements gained their first knowledge that defendants made claim to the land north of the highway, and that it was thereafter plaintiffs learned that they had been defrauded by defendants in the manner set out in the petition. Plaintiffs denied all other...