Mentzer v. Mentzer

• Citation: 30 S.W.2d 146,325 Mo. 941
• Decision Date: 09 July 1930
• Docket Number: 28555
• Parties: Nils Peter Mentzer v. Albert Mentzer and Loonetta Mentzer, Plaintiffs in Error
• Court: Missouri Supreme Court

30 S.W.2d 146

325 Mo. 941

Nils Peter Mentzer v. Albert Mentzer and Loonetta Mentzer, Plaintiffs in Error

No. 28555

Supreme Court of Missouri

July 9, 1930

Rehearing Overruled July 9, 1930.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Wilbur F. Hall, Charles P. Dallam and Bruce Barnett for plaintiffs in error.

(1) The evidence shows that the deed was either a voluntary gift, as defendants testified, or was in consideration of a promise to support plaintiff, as plaintiff alleges and testified. (a) If the deed was a voluntary gift, it required no consideration. Doherty v. Noble, 138 Mo. 25. (b) If the deed was given in consideration of a promise to support plaintiff there should be no decree canceling the deed, or setting it aside, or holding it for naught or divesting title out of defendants or into plaintiff, because the deed contains no provision making the performance of such promise a condition subsequent upon the title or estate conveyed, and there is no word of evidence of any agreement to such effect, or that such was the intent. Kohnke v. Kohnke, 250 S.W. 53; Alward v. Boatwright, 193 S.W. 570; Graham v Graham, 249 S.W. 40; Roberts v. Crume, 173 Mo. 572; Henry v. Mineral Water & Bottling Co., 277 Mo. 508; Shafer v. Shafer, 190 S.W. 323; Lackland v. Hadley, 260 Mo. 539; Stoutimore v. Ry. Co., 215 Mo.App. 194, 256 S.W. 121; Studdard v. Wells, 120 Mo. 25; Haydon v. Ry. Co., 222 Mo. 145; Anderson v. Gaines, 156 Mo. 670. (2) At the close of the evidence plaintiff abandoned the theory of his petition and all his allegations, and elected to stand upon the proposition that the deed was without consideration, and on that alone and as the want of consideration constitutes no ground for setting aside the deed, the plaintiff's bill should be dismissed. Plaintiff's said action was tantamount to a withdrawal of all evidence, as well as all allegations, to the effect of a promise to support plaintiff, or of an understanding that a deed of trust should be executed, or of non-delivery. (3) Plaintiff's testimony that he did not deliver the deed should not be accepted as true, because: (a) Plaintiff's petition alleges a delivery and that same was procured by means of promises. (b) Plaintiff's own lawyer testified that when plaintiff consulted him in regard to undertaking to get the son to agree to pay so much a week he made no suggestion that the deed had been wrongfully obtained or as to the son's right to the possession of the deed. (4) There should be no decree declaring a deed of trust and foreclosing the same, because: (a) Plaintiff's testimony that there was to be a deed of trust is incredible in view of the testimony of his lawyer that when, long subsequently to the delivery of the deed, plaintiff consulted said lawyer about interviewing his son relative to an agreement for the payment of so much per month, no mention was made that defendant had agreed to execute a deed of trust. (b) There is no allegation and no word of evidence as to the amount, if any, of plaintiff's damage resulting from the breach of the promise to support plaintiff, if any such promise there was. (5) The evidence shows no such total failure to support plaintiff as would justify a finding of an abandonment of the contract, if there was any contract to support plaintiff, and therefore, under no authority in this State could the deed be set aside for total failure of consideration. (6) Aside from all of the foregoing, the deed was executed to a husband and wife. There is not a word of evidence that the wife entered into any character of agreement, and accordingly her estate by the entirety cannot be disturbed because of any breach of agreement of which her husband might be guilty.

C. H. Rucker, J. Harold Olson and Frank H. Backstrom for defendant in error.

(1) The evidence supports the finding that the deed was not a voluntary gift. (a) By defendant giving checks during row. (b) By defendants offering to convey life estate to plaintiff. (c) By offering surety bond to guarantee support and maintenance of the plaintiff. (d) The burden of proof is on the donee of a gift to prove all facts essential to its validity. This, the defendants have failed to do. Wilkerson v. Wann, 16 S.W.2d 72. (2) If the deed was given in consideration of a promise to support plaintiff, as plaintiff alleges and testifies, the defendants failed to support plaintiff, then the decree setting aside the deed should be upheld. 18 C. J. 166, 169, 4 R. C. L. 509, par. 22; 39 Cyc. 1366; 5 Pomeroy Equity (4 Ed.) 4755, sec. 2108; 8 R. C. L. 927, sec. 7; Putnam County Supply Co. v. Mendota Mining Co., 285 S.W. 409; Wilkerson v. Wann, 16 S.W.2d 72; Dingman v. Romine, 141 Mo. 466; Bruer v. Bruer, 109 Minn. 260; Shafer v. Shafer, 190 S.W. 323; Storey v. Gaisford, 240 P. 9, 136 Wash. 378; De Costa v. Bischer, 122 N.E. 819, 287 Ill. 598; Hegge v. Hegge, 184 N.W. 800, 44 S.D. 555; Moran v. Beson, 225 Mich. 144, 195 N.W. 688; Lewandowski v. Nadolny, 183 N.W. 85, 214 Mich. 350; Glocke v. Glocke, 113 Wis. 303, 89 N.W. 118; Miller v. Rhea, 292 S.W. 128; Edwards v. Locke, 134 Ark. 80, 203 S.W. 286; De Atley v. Streit, 263 P. 967, 81 Mont. 382; 10 R. C. L. 328, sec. 74. (3) The offer of plaintiff's attorney to amend petition at close of evidence does not constitute an abandonment of the theory of his petition and an election to stand on the proposition that the deed was without consideration, for the reason that said offer was not accepted or rejected by the court; no demand being made on the court to rule on same, this question is not before the appellate court. (4) The testimony of plaintiff below that he did not deliver the deed should be considered by the court. (5) The deed was executed to husband and wife, but the evidence of the wife shows that she had conversation with her father-in-law relative to this conveyance and understood why it was conveyed to her and her husband. (6) The fact that plaintiff is seventy-six years old, and by this conveyance placed all his earthly possession in the hands of the defendants, his son and daughter-in-law, is sufficient reason for the court to inquire into and scrutinize all facts and circumstances surrounding the execution and delivery of said deed and the performance and non-performance of any and all obligations, whether oral or written, forming the basis for the execution of the deed.

OPINION

Atwood, P. J.

This is a suit in equity to set aside a general warranty deed wherein defendant in error, Nils Peter Mentzer, is named as grantor, and plaintiffs in error, Albert Mentzer and Loonetta Mentzer, who are husband and wife and the son and daughter-in-law, respectively, of grantor, are named as grantees. The deed bears date of December 24, 1923, recites a consideration of "one dollar and other valuable consideration," and purports to convey certain lots in Kansas City, Missouri. Nils Peter Mentzer was plaintiff below and his petition, after alleging his ownership of said lots on the day of , 1923, of the value of not less than $ 10,000, further alleged:

". . . that said land is subject to a deed of trust securing a note for $ 1500; that upon said premises is one five-room residence and one two-room residence; that the son and his wife has occupied the five-room residence and this plaintiff the two-room residence for some time and now reside there; that the defendants, desirous of obtaining possession of said property, fraudulently and wickedly devised a scheme by which they might obtain possession thereof and acquire the title thereto without paying to the plaintiff the value thereof; that the plaintiff was willing and desirous to convey said property to these defendants, retaining for himself a life estate therein; that said son and his wife prevailed upon this plaintiff not to retain a life estate in said property, but fraudulently induced this plaintiff to execute a deed to these defendants without any reservations, promising and agreeing that they preferred to execute a note to be secured by a deed of trust equal to the value of the equity in said place, and that they did agree with this plaintiff and have continuously promised to execute said deed of trust and note; that said deed of trust and note should be given in lieu of surety or bond to the plaintiff that they would furnish him all the necessities of life; that they would care for him, pay any and all bills for necessities, medical attention and medicine, and that if said defendants should fail and refuse at any time to provide all of said necessities as the same might be demanded and needed, that said mortgage or deed of trust could be foreclosed and the property sold to satisfy the indebtedness; that they now threaten to throw this plaintiff out of the premises, and have ordered him to leave the premises and refuse to care for this plaintiff and provide for him the necessities of life; that they have positively refused in any manner to carry out the terms of their contract, and that there was no consideration paid for the execution and delivery of said deed, and that the said deed was obtained by misrepresentations and with the avowed purpose of obtaining the property without any obligations and without any considerations being paid therefor; that this deed so executed by this plaintiff has been recorded in said County in Book 2457, page 207."

Defendants' answer was a general denial. Judgment was for plaintiff setting aside the deed and holding title to said property well vested in him. The case is before us on writ of error sued out by defendants as plaintiffs in error.

The first point urged in brief of plaintiffs in error is stated thus:

"The evidence shows, either that the deed was a voluntary gift as defendants testified, or that it was in consideration of a...