Malloy v. Jones

• Decision Date: 06 December 1943
• Docket Number: 38686
• Citation: 175 S.W.2d 776,351 Mo. 1211
• Parties: C. R. Malloy and Anna M. Malloy, Appellants, v. Dr. C. H. Jones
• Court: Missouri Supreme Court

175 S.W.2d 776

351 Mo. 1211

C. R. Malloy and Anna M. Malloy, Appellants, v. Dr. C. H. Jones

No. 38686

Supreme Court of Missouri

December 6, 1943

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Affirmed and remanded.

W H. Meredith and Phillips & Phillips for appellant.

(1) The defendant knowing that plaintiffs had leased their farm to L M. Church for a period of five years and that he (Church), was in possession, obtained a lease from them on the same land for the same period, by misrepresenting Church's ability to carry out his contract. Plaintiffs were old, worn out, ignorant and sick. Defendant wanted their land and to compel them to sell to him, repeatedly stated that while he didn't want a lawsuit, still, how were they going to take care of his lease, and said that if they would sell him the land that would take care of his lease, inferring that in that event there would be no lawsuit. Defendant's actions and statements lead plaintiffs to believe that if they didn't sell their land to defendant, there would be a lawsuit. This was duress, and plaintiffs are entitled to have the instruments executed under its influence, set aside. 13 C. J., p. 402, sec. 319; Brown v. Worthington, 162 Mo.App. 508, 142 S.W. 1082; Fout v. Geraldine, 64 Mo.App. 165; Am. Brewing Co. v. St. Louis, 187 Mo. 367; Lappin v. Crawford, 221 Mo. 380, 120 S.W. 605; Miss. Valley Tr. Co. v. Begley, 252 S.W. 76, 298 Mo. 684; White v. McCoy, 87 S.W.2d 672, 229 Mo.App. 1019; White v. Scarrit, 111 S.W.2d 18, 341 Mo. 1004; Graves v. Graves, 164 S.W. 496, 255 Mo. 468. (2) Threat of a civil suit is sufficient to establish duress. Miss. Valley Tr. Co. v. Begley, supra. (3) The contracts exacted by defendant are so unfair and unconscionable as to entitle plaintiffs to equitable relief. Sims v. Sims, 101 Mo.App. l. c. 417; Hanson v. Neal, 114 S.W. l. c. 1079, 215 Mo. 256; 21 C. J., p. 111, sec. 87; Hannibal, etc., R. Co. v. Brown, 43 Mo. 294; Holmes v. Fresh, 9 Mo. 201; Nelson v. Betts, 21 Mo.App. 219. (4) Where there is no meeting of the minds there is no contract and equity will grant relief for unilateral mistake. Frederich v. Union Electric, 82 S.W.2d 79, 85, 336 Mo. 1038; Speers v. Lucas, 279 S.W. 736, 221 Mo.App. 414.

Wm. T. Powers for respondent.

(1) Suits or threats to sue in civil action on a good cause of action does not constitute such duress as will avoid a deed. 18 C. J. 235, sec. 160. (2) Threat of a civil suit is insufficient to establish duress sufficient to set aside and cancel a deed or contract. Even though plaintiffs may have testified that threats were made by respondent to bring a suit, which the court below, who had an opportunity to see and hear the witnesses, did not find, a threat to perform a lawful act and what one has a legal right to do cannot constitute duress. 13 C. J., p. 399, sec. 314; Wood v. K. C. Home Tel. Co., 223 Mo. 537, 123 S.W. 6; Morgan v. Joy, 121 Mo. 677, 26 S.W. 61; Dausch v. Crane, 109 Mo. 323, 19 S.W. 61; Claflin v. McDonough, 33 Mo. 412. (3) There was no intimidation shown by evidence on part of defendant. (4) Even though the court had found that the value of the property was more than that paid and to be paid by respondent, which he did not, no ground for equitable relief is shown by the mere fact that the party invoking the aid of the court has made an improvident contract. 21 C. J. 112, sec. 87. (5) While in an equity case, such as this, the whole record must go up to the appellate court for review in equity so that it may be decided by the reviewing tribunal de novo, nevertheless, where an issue of fact rests on the credibility of the witnesses, the appellate court will, and should, defer to the finding of the chancellor, who has an opportunity of seeing and hearing the witnesses themselves, observing their demeanor while testifying, and of determining the weight which properly attaches to their testimony. Keener v. Williams, 271 S.W. 489; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118. (6) The cancellation of an executed contract is an exertion of the most extraordinary power of a court of equity, which ought not to be exercised except in a clear case and upon strong and convincing evidence. Linneman v. Henry, 291 S.W. 109, 316 Mo. 674; 9 C. J. 1254; Jackson v. Wood, 88 Mo. 76; Bryan v. Hitchcock, 43 Mo. 527; Cochran v. Polk, 252 Mo. 261, 158 S.W. 603.

OPINION

Clark, P.J.

Suit to set aside a deed and contract for the sale of real estate and personal property. The decree was for defendant and plaintiffs appeal.

The petition alleges that the contract and deed are not based on a consideration, are inequitable, were obtained by duress induced by threat of a civil suit, and do not express the true agreement of the parties in that they describe certain promissory notes which plaintiffs did not agree to assign and transfer; and that defendant failed to execute a deed of trust and deliver same to plaintiffs as promised. The petition also alleges that plaintiffs entered into a verbal agreement whereby they rented their Wayne County farm to one L. M. Church for five years from March 1, 1941, at an annual rental of $ 500.00, and Church moved to the farm in September, 1940, and has had possession since; that this lease was acknowledged and recorded in February, 1942; that in March, 1941, defendant, with full knowledge that the farm was rented to Church, came to the home of plaintiffs in Jasper County and falsely and fraudulently represented to them that Church would be unable to carry out his contract and thereby induced plaintiffs to lease the farm to defendant on the same terms upon which they had agreed to rent it to Church, and that this was done by defendant with the fraudulent design to get possession of the land and later cheat plaintiffs out of it.

Defendant's answer admitted the execution of the contract and deed and denied generally and specifically all other allegations of the petition. The answer further states "that the plaintiffs both well knew that the contract was not a note and deed of trust, and further avers that the plaintiffs at the time preferred a contract to a note and deed of trust, on account of, as stated by them, that taxes might be assessed on a note against them, and that under the contract it was possible that no taxes would be assessed against them; but the defendant hereby offers to make, execute and deliver to the plaintiffs a note or notes in the amount and payable at the same time as payments are due as expressed in the contract made between the parties, said notes to bear interest from maturity at the legal rate of interest, and to execute a deed of trust to secure said note or notes, provided plaintiffs will dismiss this lawsuit with prejudice and secure immediate possession of the real estate for defendant, and pay all costs of this suit."

After a trial without a jury the court found the issues for defendant and against the plaintiffs and "ordered and decreed that defendant and his wife execute their promissory note for $ 12,000.00 secured by deed of trust on land and chattel mortgage on personal property described by contract payable as prescribed by contract, defendant at the time by leave of court tenders payment of $ 1,000.00 as deposit. It is ordered by the court that plaintiffs' bill be dismissed".

The plaintiffs are husband and wife. At the time of the trial Mr Malloy was 76 and his wife 67 years of age. His vision is somewhat impaired, but he can sign his name. Mrs. Malloy has been in failing health for several years. She has a common school education and can read and write. The farm in question is located in Wayne County. Plaintiffs resided on the farm for many years until September 15, 1940, when they purchased land in and moved to Jasper County. At that time they entered into an oral agreement purporting to lease the farm to one L. M. Church for a period of five years from March 1, 1941. Later a five year written lease was prepared which was acknowledged by Church on October 28, 1941, by the plaintiffs on February 16, 1942, and filed for record in the recorder's office on February 19, 1942. This lease provided an annual rental of $ 500.00, payable in advance, and plaintiffs agreed to leave all farming tools and machinery on the place for the use of Church during the life of the lease. Failure to pay rent when due would entitle the lessors to immediate possession. On March 17, 1941, the plaintiffs and defendant entered into a written contract, duly signed and acknowledged, whereby the plaintiffs agreed to lease the same land to defendant, for the same period and on the same terms as to rental and the use of farming tools as later specified in the lease to Church. Defendant, when he procured his lease, knew that plaintiffs had orally agreed to lease the same property to Church, but thought the agreement with Church was invalid. One of the plaintiffs testified that defendant procured his lease by representing to them that Church would be unable to carry out his contract and they would lose the rent. Church had given them a note for the first year's rent, which has not been paid. The record is silent as to when this rent note became due, but it must have been before March 14, 1941, because on that date plaintiffs wrote defendant that Church "wants us to take a lien on the crop for what he owes us. As much as I'd like to help him all I can, I don't think we can do that, I feel like the best thing for him and us is to let you finance him. Go to see him and make a deal with him. As we want this matter cleared". Three days later plaintiffs leased the land to defendant. The next day after defendant received his lease, plaintiffs wrote him. This letter is not in the record, but apparently it indicated that plaintiffs desired to let Church go on with...