Nelson v. Hammett

• Decision Date: 02 July 1945
• Docket Number: 39342
• Parties: Clarence L. Nelson and Edgar F. Nelson, Respondents, v. Evan H. Hammett, Ella Dudley Hammett and Frances B. McKee, Appellants
• Court: Missouri Supreme Court

189 S.W.2d 238

Clarence L. Nelson and Edgar F. Nelson, Respondents, v. Evan H. Hammett, Ella Dudley Hammett and Frances B. McKee, Appellants

No. 39342

Supreme Court of Missouri, First Division

July 2, 1945

From the Circuit Court of Jackson County Civil Appeal Judge Emory H. Wright

Appeal dismissed

OPINION

Dalton C.

Action in equity to set aside a deed on the ground of fraud and undue influence and to quiet title in plaintiffs. Defendants have appealed from an order granting a new trial to plaintiffs after a finding for defendants.

The cause is presented for review upon the pleadings, judgment motion for a new trial, order sustaining the motion and certain exhibits. No evidence is included in the record.

The petition alleged the following facts, towit, that plaintiffs were sons of Christina B. Rieger, deceased, and the devisees of the described real estate under her duly probated last will; that no order had been made upon the executor of said estate to take charge of said real estate; that plaintiffs had an interest in and were the owners of the described real estate; that, for many years prior to her death on December 1, 1943, Mrs. Rieger was the client of defendant Evan H Hammett; that a relationship of trust and confidence existed between them; that she was old and feeble and weak, and without mental or physical capacity to attend to her business affairs; that she was completely under the direction and control of defendant Evan H. Hammett, and from and after July 1, 1942 boarded and roomed in his home; that she was prevented from seeing her children and friends; that defendant Evan H. Hammett and Frances B. McKee took over the management of her affairs and conspired to procure her property for themselves and defraud plaintiffs; that by undue influence said defendants caused Mrs. Rieger to convey the described real estate to Frances B. McKee, an office associate of defendant Evan H. Hammett; that the conveyance was dated June 28, 1941 and was without consideration; that the deed was not recorded until November 27, 1941; that on December 4, 1941, Frances B. McKee executed a deed of trust on the property to secure a note for $750 payable to Dorothy H. Carmichael; and that on December 3, 1943, Frances B. McKee, without consideration, conveyed the described real estate to Ella Dudley Hammett, the mother of Evan H. Hammett; that title was placed in the name of Ella Dudley Hammett to defraud Mrs. Rieger and plaintiffs; and that Evan H. Hammett and Frances B. McKee had owned, controlled, and possessed the described real estate as if legal title stood in their names.

The answer filed by defendant Frances B. McKee disclaimed any interest in the property, but admitted her conveyance to Ella Dudley Hammett on December 8, 1943, and alleged that she had never been "other than a bare title holder of said real estate."

The answer of defendant Ella Dudley Hammett denied generally the allegations of the petition, disclaimed any interest in the property since December 4, 1943, when she alleged she had conveyed the property to another.

The answer to Evan H. Hammett denied generally the allegations of the petition and then admitted that he was the friend and attorney of Mrs. Rieger from May, 1935 until June 28, 1941; and that the conveyance of June 28, 1941 was in fact made to him, "title being taken for convenience in the name of Frances B. McKee." He further alleged that the conveyance was made for a valuable consideration; that Mrs. Rieger had offered to convey all of her property, real, personal and mixed to him to defeat the terms of her purported will of August 1, 1934; "that it was her expressed desire to reward her friend and attorney, Evan H. Hammett, for many past favors and kindnesses; * * * that Evan H. Hammett accepted said offer of Christina B. Rieger and agreed to furnish her upon demand with necessary food, shelter, clothing, medical attention * * * for the remainder of the life, * * * and to furnish last rites and a decent funeral in Elmwood Cemetery, Kansas City, Missouri, beside her deceased husband, James C. Rieger; that in compliance with said offer and acceptance, Mrs. Rieger conveyed all of her property, real, personal, and mixed, to Evan H. Hammett, title being taken for convenience in the name of Frances B. McKee; * * * that on January 13, 1942, Mrs. Rieger came to the office of Evan H. Hammett, attorney at law, defendant herein, and requested permission of him and his wife to make her home permanently with them, which request was promptly granted; that Mrs. Rieger resided continuously in the home of her fried, Evan H. Hammett, under the above described agreement with defendant Hammett, from January 13, 1942, until to and including December 1, 1943, the date of her death; * * * that Evan H. Hammett, defendant, paid Mrs. Rieger's funeral expenses of $472.86, and the cemetery lot expense of $75; * * * that on December 8, 1943, Evan H. Hammett, defendant, caused Frances B. McKee, record title owner of 1510 East 41st Street, Kansas City, Missouri, to convey same by deed of gift to his mother, Mrs. Ella D. Hammett"; and that his mother had conveyed to Elizabeth Harverty.

On August 5, 1944 (during the May term) the court found that plaintiffs were not entitled to the relief prayed and entered judgment for defendants. Plaintiffs, in due time, moved for a new trial and assigned error on the admission and exclusion of evidence, on the judgment being for defendants when it should have been for plaintiffs, and on the ground the judgment was against the law and evidence and against the greater weight of the credible evidence. On September 12, 1944 (during the September term) the motion was "sustained for the reason that the court erred in not applying the equitable rule which shifted the burden of proof to defendants."

The printed abstract of the record includes a bill of exceptions covering proceedings subsequent to the trial of the cause, towit, the filing of defendant's motion for a new trial, the motion for a new trial and the order of the court sustaining the motion and assigning the ground on which it was sustained. The record shows that the attorneys for plaintiffs and defendants were present in court when defendants' bill of exceptions was approved, signed, ordered filed, filed and made a part of the record in the cause, as the bill of exceptions "taken and saved by defendants."

Appellants have set out in their brief two letters of the trial judge purporting to give his reasons for finding for defendants and his reasons for granting a new trial. Appellants and respondents refer to and rely upon the matters contained in these letters as if the letters were a part of the record presented for review.

The first letter, dated when the judgment was entered, states that it was conceded by Evan H. Hammett in the trial that, at all times, he "was the legal advisor and intimate friend of Mrs. Rieger; * * * that the conveyance in question and the other real estate transactions and loans mentioned in evidence were personally handled" by him; that "Frances B. McKee was at all times acting as a mere conduit for the purpose of passing title"; and that he (Evan H. Hammett) "received personally the moneys derived from loans procured on Mrs. Rieger's property." It is further stated that plaintiff had shown the fiduciary relationship existing between Evan H. Hammett and Mrs. Rieger, the conveyance of the described property to the agent of Evan H. Hammett and the further appropriation by him of Mrs. Rieger's property through loans. It was also indicated that defendant Evan H. Hammett had first pleaded a gift of the property to him and had then pleaded an agreement with Mrs. Rieger to support and maintain her and to provide and pay the expenses of her burial. The court found Evan H. Hammett had failed to prove either a gift or the contract alleged. The letter, after reference to certain authorities, proceeds: "From the evidence, I have concluded that Mrs. Rieger was a woman of strong convictions, possessing tenacity, and was vigorous in carrying out her desires. All the evidence indicates that at the time of executing the instrument in question her mind was in excellent condition for a woman of her age; and that she was capable of knowing with exactness as to what she was doing. The evidence would indicate that for a number of years Mrs. Rieger had implicit confidence in this defendant, and had a personal interest in him and his affairs. * * * With the confidence reposed in the defendant by Mrs. Rieger there was every opportunity for imposition. * * * There is but little evidence which, to my mind, indicates that defendant Hammett or anyone else actually dominated and controlled Mrs. Rieger's mind. * * * I am of the opinion that the evidence in this case * * * does not show by clear, cogent and convincing evidence that defendant Hammett's will and will power was substituted for that of Mrs. Rieger's. * * * The evidence falls short of establishing a domination over Mrs. Rieger by defendant Hammett."

The second letter dated when the motion for a new trial was sustained states: "In deciding this case I followed the general rule of law that where there are circumstances which are sufficient to make a prima facie case, or * * * circumstances sufficient to justify an inference of negligence or guilt, such facts do not impel a conclusion of negligence or guilt, but may with all of the evidence in the case establish the ultimate fact. In such situation the burden of proof does not shift, and there must be sufficient evidence (the quantity to be determined by the character of the case) to establish the allegations of plaintiffs' petition. I have concluded that I was in error in deciding the case upon the foregoing theory. ...