Mueller v. Mueller

• Decision Date: 08 December 1958
• Docket Number: No. 2,No. 46649,46649,2
• Parties: Edward J. MUELLER and Lorraine Mueller, his wife, Appellants, v. LeRoy O. MUELLER and Annette M. Mueller, his wife, Respondents
• Court: Missouri Supreme Court

Page 365

318 S.W.2d 365

Edward J. MUELLER and Lorraine Mueller, his wife, Appellants, v. LeRoy O. MUELLER and Annette M. Mueller, his wife, Respondents.

No. 46649.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1958.

Roberts & Roberts, J. Richard Roberts, Farmington, for appellants.

Maurice L. Stewart, St. Louis, for respondents.

STOCKARD, Commissioner.

Plaintiffs have appealed from a judgment in favor of the defendants in their suit for the cancellation of a deed.

Henry L. Mueller and his wife, Louisa Mueller, owned a two-family flat at 3309 Winnebago Street, St. Louis, Missouri. In September 1953, they conveyed this property without consideration to their sons, Edward J. Mueller and LeRoy O. Mueller, each receiving an undivided one-half interest. Apparently the two sons were not aware of this transfer until sometime after the deed was executed and recorded. In September 1954, Edward and his wife were at his parents' home, which was the lower apartment in the above referred to property, and at that time they executed the general warranty deed which they now seek to have set aside. By this deed they purported to convey to LeRoy all right, title and interest in and to the property. Neither LeRoy nor his wife was present. Edward testified that his mother was then sick and his father had been in the hospital and they were in need of funds, and that his father 'asked me to sign a deed of trust which I understood my brother would also execute * * * so that funds could be obtained whenever necessary for a loan on the property.' He stated that he thought he was signing a deed of trust so his father 'could obtain money to pay hospital bills or anything that was necessary if he needed it.' Edward handed the deed to his wife and told her to sign it and she did so. He did not tell her it was a deed of trust. No note was signed, but Edward testified that he knew a note usually accompanied a deed of trust.

The instrument consisted of a single sheet of paper and was the usual printed form of a general warranty deed. Edward and his wife signed at the bottom of the paper, but according to them the deed was folded so that only a small portion thereof was visible and they could not see the words 'General Warranty Deed' printed in large letters at the top. Edward demonstrated to the trial court the manner in which he contends the deed was folded when he signed it. He stated that the 'blank' places in the part he could see were not filled in, and that he did not know if LeRoy was named as grantee, apparently because the place for the name of the grantee was covered. Edward testified that he knew and understood the difference between a warranty deed and a deed of trust, and that a warranty deed evidenced a conveyance of property. He also stated that if he had opened the folded instrument he would have seen that it was a warranty deed, but that he did not do so and did not read the instrument because his 'father had requested me to sign it and told me that that's what he wanted the money for, and I trusted him explicitly at that time.'

Edward and his wife both testified that no notary public was present when they signed the deed. However, Erwin A. Koehler testified that he was a notary public, that he prepared the deed at the request of Henry Mueller and gave it to him, and that several days later, at the request of Mr. Mueller, he went to his home, witnessed the signing of the deed by Edward and his wife and took 'the acknowledgment at that time.' For some reason he was not asked if he noticed that the deed was folded at the time Edward and his wife signed it.

Subsequent to September 15, 1954, Edward frequently saw LeRoy but he never mentioned to him that he had signed what he thought was a deed of trust on the property. He first learned, according to his testimony, that LeRoy claimed to own all the property in September or October of 1956 when he called LeRoy to tell him that he could not raise the necessary money to take care of hospital and funeral expenses (apparently for his mother), and LeRoy stated in reference to the property in question, 'Oh, didn't you know that Pop deeded that to me? I've already made a loan on it to pay these expenses.'

Sometime after May 15, 1956, Henry Mueller was admitted to Missouri State Hospital No. 4 at Farmington, Missouri, an institution for the treatment of mental diseases, and he was there at the time of trial.

LeRoy testified that he knew nothing of the deed from Edward and his wife to him until after his father was sent to the State Hospital and when he found a 'recorder's card' among his father's papers. The deed was recorded, apparently by Henry Mueller, on November 16, 1955, and LeRoy testified that he had nothing to do with recording it.

After September 23, 1953, Edward did not contribute anything to the support of his parents because 'my first wife had just passed away; I bought a new home and I was unable to contribute anything.' But, during this period both parents were ill 'a great deal,' his mother was in a hospital 'several times' and was in a nursing home several months prior to her death, and his father was hospitalized in St. Louis before he was taken to the hospital at Farmington. The father had an income of $124 a month and the mother received $35 a month. They also received rent from LeRoy for the upstairs apartment. Hospitalization insurance covered some of the hospital expense but not all. Bills in excess of their income were paid by LeRoy.

The trial court found that Edward and his wife were not entitled to have the deed from them to LeRoy set aside and dismissed their petition.

Plaintiffs, as appellants, contend that the trial court erred in failing to set aside the deed because '(a) The actions of plaintiffs' father, Henry L. Mueller, constituted sufficient fraud to invalidate the deed,' and '(b) The defendants claimed plaintiffs' interest in the real estate because of a gift. They therefore, had the burden of proving this gift. They did not carry this burden and the evidence discloses there was no valid gift.'

We note that although defendants objected to the admission of any testimony concerning conversations between plaintiffs and Henry Mueller on the basis that at the time of trial Henry Mueller was insane, see Section 491.010 RSMo 1949 V.A.M.S., the trial court admitted the testimony. However, respondents make no point of this in their briefs, and the case is submitted to this court for decision on its merits based on the record as made.

In this appeal in an equity case we review the record de novo and determine the credibility, weight and value of the testimony and evidence in the case, but in doing so we give due deference to the trial chancellor's findings as evidenced by his decree and the fact that he heard the testimony and was able to observe the witnesses and thereby judge their credibility. Nixon v. Franklin, Mo.Sup., 289 S.W.2d 82.

The evidence of plaintiffs, if accepted as true, can be said to authorize a finding that Henry Mueller obtained their signatures to the warranty deed by reason of false representations that the instrument was a deed of trust and that he desired their signatures so that he could use the property as security to obtain a loan to pay hospital and medical expenses. However, contrary to the contention of plaintiffs, there is no evidence whatever which would warrant a finding that LeRoy had anything to do with any false representations, if they were in fact made, or that he had any actual or constructive knowledge thereof. No fraud is shown on the part of LeRoy. Plaintiffs contend that Henry Mueller was LeRoy's agent in obtaining the deed, but they admit that he was 'possibly self-appointed.'

Plaintiffs have cited to us no case wherein a deed has been set aside because of fraud in the procurement of the deed by a third person who was not acting with the actual or constructive knowledge of the grantee. They cite 26 C.J.S. Deeds Sec. 56 e, but that section, in its material part, reads as follows: 'An action to rescind a deed will not be sustained merely because of fraudulent representations by a third person who did not act under the authority of defendants, and which they neither participated in, nor had notice of. If, however, the grantee is a party to the fraud, the deed may be set aside. So, the deed may be set aside because of the fraud of one who is acting in the transaction as the agent of the grantee, as where the deed was obtained by a parent for his child.' Plaintiffs rely on the last sentence, but if the general rule as stated in the first sentence is to be accepted, we doubt if the relationship shown in this case, standing alone, was intended to be included in the general statement to the effect that a parent would automatically be the agent for his child. Here the grantee was a 'child' who was a mature married man living separate and apart from the parent. In addition, the grantor in this case was also...