Lee v. Lee

• Decision Date: 02 June 1914
• Docket Number: No. 16773.,16773.
• Citation: 258 Mo. 599,167 S.W. 1030
• Parties: LEE et al. v. LEE et al.
• Court: Missouri Supreme Court

167 S.W. 1030

258 Mo. 599

LEE et al. v. LEE et al.

No. 16773.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. APPEAL AND ERROR (§ 847)—QUESTIONS REVIEWABLE—RULINGS ON INSTRUCTIONS IN SUIT IN EQUITY.

Error cannot be predicated in a suit in equity on the giving or refusal of instructions.

2. DOWER (§ 44)—OUTSTANDING DOWER— CONVEYANCES.

Where a wife did not join her husband in a conveyance, her dower remains outstanding.

3. DEEDS (§ 196)—VALIDITY—MENTAL CAPACITY OF GRANTOR—PRESUMPTIONS.

In a suit to set aside a deed on the ground of the grantor's mental incapacity, the grantee may rely on presumption of the grantor's mental capacity; the burden being on the plaintiff to rebut the presumption.

4. DEEDS (§ 68)—MENTAL CAPACITY OF GRANTOR.

Sickness and old age do not in and of themselves amount to incapacity to execute a deed.

5. EVIDENCE (§ 501)—MENTAL CAPACITY— OPINIONS OF NONEXPERTS.

The opinion of a nonexpert as to the mental capacity of one to execute a deed is admissible only in connection with the facts on which the opinion is based, though a nonexpert need not give all the minute details.

6. DEEDS (§ 211)—MENTAL CAPACITY OF GRANTOR—EVIDENCE—SUFFICIENCY.

Evidence held to show that a grantor had mental capacity to execute a deed.

7. PLEADING (§ 8)—SUFFICIENCY—CONCLUSION OF PLEADER—FRAUD.

A petition charging fraud which merely charges fraud without specifications is, as a general rule, insufficient for stating a mere conclusion.

8. DEEDS (§ 196)—FRAUD—PRESUMPTIONS.

The presumption is that a grantee obtaining a deed was not guilty of fraud inducing the execution of the deed.

9. DEEDS (§ 70)—FRAUD—ACTS CONSTITUTING.

The fraud of a grantee which will vitiate a deed are acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, and which are injurious to the grantor or by which undue advantage is taken of him.

10. DEEDS (§ 211)—FRAUD—EVIDENCE—SUFFICIENCY.

Evidence held not to show that a deed was procured by the fraud of the grantee.

11. DEEDS (§ 211)—UNDUE INFLUENCE—EVIDENCE.

Evidence held to not show that a deed was procured by the undue influence of the grantee.

12. DEEDS (§ 17)—CONSIDERATION—SUFFICIENCY.

A deed executed by a father to a child in consideration of love and affection, and the agreement of the child to support the grantor for life, is supported by a good and valuable consideration.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by Henry Lee and another against Mary Lee and others. From a judgment for plaintiffs, defendant Nettie Beasley appeals. Reversed and remanded, with directions to dismiss.

Barrett & Farrar, of Ozark, for appellant.

LAMM, J.

Henry and James, two sons of John Lee, deceased, sue his other heirs in equity in the Christian circuit court to set aside a certain conveyance made by him to his daughter, defendant Beasley, and to vest title in the heirs of Lee as tenants in common, joining a count in partition. Mrs. Beasley on this record alone answered. For some undisclosed reason, the count in partition fell out of the case. A decree in plaintiffs' favor stops short with vesting title in the widow and heirs of said John Lee. Mrs. Beasley alone of the defendants appealed, and plaintiffs rested content without partition, taking no appeal.

The land in controversy is the W. ½ of the N. E. ¼ of section 31, township 28, range 19, in Christian county.

The substance of the allegations of the bill is this: Long prior to the 6th of June, 1910, and on that day, John Lee was "weak and feeble-minded, sickly and diseased, and of unsound mind and incapable of transacting his ordinary business affairs"; that, "while visiting with, and under the influence of, Nettie Beasley," he executed the assailed deed, conveying said land to her "without any valuable consideration," on the 6th of June, 1910. The deed (copied into the bill) recites that said John Lee, "in consideration of love and affection and the agreement on the part of party of the second part to furnish the party of the first part a home and give him personal attendance his lifetime, do by these presents grant," etc. (The deed is in conventional warranty form.) The bill goes on to allege as follows:

"There was no consideration, and that said deed was obtained by fraud and through undue influence exercised upon said John Lee deceased, with a view to deprive the plaintiffs and defendants herein of their rights in said land. Wherefore plaintiffs pray," etc.

The foregoing is a fair summary of a loose and impoverished bill—a bill making no specification of fraud, no allegation of intestacy, and no charge of a fiduciary relation; alleging no fact from which undue influence sprang in fact or by presumption; giving no value to the land; making no averment of the import or effect of the conveyance, but contenting itself with merely copying the instrument; not even directly alleging ownership in John Lee, or making any averment relating to the remaining estate of Lee or the proportion conveyed, or directly charging Mrs. Beasley with the possession or the exercise of any undue influence over him.

However, as the bill is not now questioned, nor was it challenged below by appellant's counsel, we earmark its imperfections and pass them by on the assumption that the cause was tried on the theory the bill impliedly stated a cause of action. If that was an erroneous assumption, then the maxim "Communis error facit jus" helps clear the situation a bit.

Mrs. Beasley answered, admitting the alleged relationship of the parties to each other and to John Lee, admitting the execution of the deed, averring it "was made for a good and valuable consideration" (setting it forth as does the deed itself), and averring that defendant faithfully performed her agreement "to care for and board decedent" until his death. The answer next alleged that John Lee was not of unsound mind, and was not incapable of transacting his business affairs, but "was a very shrewd dealer, and fully understood his business affairs"; that the deed "was not made under undue influence of any one, but was made by said John Lee of his own free will and accord for the purposes set forth, wherefore," etc.

Treating the suit as one at law, instead of in equity, as it was, appellant, at the close of the evidence for plaintiffs, and again at the close of the case, asked an instruction in the nature of a demurrer to the evidence, and on its final refusal her counsel asked a series of instructions declarative of those propositions of law they deemed pertinent to the facts. The chancellor refused them, and the exceptions then saved to his ruling they bring here for review and make much of. However, one of the grounds of their motion for a new trial was to the effect that the decree was not supported by the evidence, but was contrary to it, and error is assigned on the overruling of that motion.

The facts lie in small compass, and will appear in connection with the disposition of the question whether plaintiffs made a case for equitable relief under the bill and proofs. The appeal may be disposed of under two heads, to wit: (1) Of the instructions (and herein of the demurrer); (2) of the sufficiency of the proofs.

I. Of the Instructions (and Herein of the Demurrer).

It was taken in ancient times, so a scholarly brother tells me, as within a limbo of unreason to do so useless a thing as to carry owls to Athens. To offer instructions in a cause in chancery is like carrying owls to Athens, coals to Newcastle, herring to Holland, or gilding refined gold. The unbending rule of practice is that instructions fill no office at all in an equity case; hence, for appellate purposes, error cannot be predicated or assigned upon the giving or refusing of them. In chancery the question is not what the chancellor instructed himself to do, or how he talked the matter over with himself; the question is: Did he seek equity and do it? We have always so written the law, and doubtless always shall. Doubtless, too, iteration and reiteration are necessary even to so learned a profession as the law, for is it not written by a great authority on the way to promulgate good doctrine:

"For precept must be upon precept, precept upon precept; line upon line, line upon line; here a little, and there a little?" (Vide Isaiah xxviii, 10).

What is true of instructions in general in equity is true of demurrers to the evidence in equity. They amount to the same thing, to wit, nothing. Troll v. Spencer, 238 Mo. loc. cit. 93, 141 S. W. 855, Ann. Cas. 1913A, 276 et seq.

It is in law as in life, one should look about him and be careful to avoid negligence. Doth not the proverb say: If one lie down with a beggar, one gets up lousy? So, if one rely on instructions in equity, he leans on a broken staff, and gets the worst of it in a fall. We put the matter in the homely similitudes of the fireside because the learned discourse in the venerable language of case law in that regard (blazoned and embalmed in nearly every volume of our reports) seems, like the seeds in the parable, to fall by the wayside or on stony ground.

Fortunately for appellant in this case, she also challenged the sufficiency of the evidence to support the decree; hence the fact that the instructions before us must be put behind us and that the exceptions saved to the instructions bring nothing up for review is not fatal to her appeal.

II. Of the Sufficiency of the Evidence.

The case on the facts is this: Henry Lee, one of plaintiffs, testified that his father lived with him in Christian county for a month and a half until the 15th of March, 1910, when he left for Illinois. He describes him as "mighty poorly, and had been for some time," with the consumption and asthma. In the spring he would "get mighty low, and in the warm weather he would pick up again." He was not as well as usual when he left for Illinois, and would be bedfast a little...