Platt v. Platt

• Decision Date: 20 December 1938
• Docket Number: 35513
• Citation: 123 S.W.2d 54,343 Mo. 745
• Parties: Joseph Platt, Carl Platt, Pearl Ludwig, June Casey, Martin Platt, Robert Platt and Daisy Platt, by and through her Next Friend, Sam Weber, v. Tillie A. Platt and N. Rebecca Campbell, Appellants, William Platt, Respondent
• Court: Missouri Supreme Court

123 S.W.2d 54

343 Mo. 745

Joseph Platt, Carl Platt, Pearl Ludwig, June Casey, Martin Platt, Robert Platt and Daisy Platt, by and through her Next Friend, Sam Weber, v. Tillie A. Platt and N. Rebecca Campbell, Appellants, William Platt, Respondent

No. 35513

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Eugene L Padberg, Judge.

Reversed.

Max Haas and Henry H. Furth for appellants.

(1) Evidence to impeach a deed or divest a title must be clear cogent, positive and convincing so as to leave no room for reasonable doubt. Robinson v. Field, 117 S.W.2d 315; Norton v. Norton, 43 S.W.2d 1024; Gaugh v Gaugh, 321 Mo. 414, 11 S.W.2d 746; LaRue v. LaRue, 317 Mo. 207, 294 S.W. 783; Chamers v. Chambers, 227 Mo. 284, 127 S.W. 86. (2) The petition charges that the deed was obtained from William Platt by "fraud, trickery, artifice and deceit," but sets out no specific act constituting fraud or deceit. A general charge of fraud, without alleging any specific acts constituting the fraud, is a mere conclusion and presents no issuable facts. Klaber v. Unity School of Christianity, 51 S.W.2d 30; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 287; Thompson v. Road District, 19 S.W.2d 1049; Bondurant v. Raven Coal Co., 25 S.W.2d 566; Hoester v. Sammelmann, 101 Mo. 619. The finding that the deed was obtained by fraud, trickery, artifice and deceit is error. There was neither a sufficient allegation of fraud in the petition, nor any evidence whatever offered in support of the allegations. Fraud must be both alleged and proved. Jones v. Ry. Co., 79 Mo. 92; Wheeler v. Mo. Pac. Ry. Co., 33 S.W.2d 179; Price v. Kansas City Pub. Serv. Co., 42 S.W.2d 51, affirmed 51 S.W.2d 1047; Southwest Lbr. Co. v. Crommer, 202 Mo. 504.

Patrick A. Marcella for respondents.

(1) There was substantial evidence to the effect that the grantor did not have mental and physical capacity to make a deed or transact any business at the time the deeds in question were executed. Vining v. Ramage, 3 S.W.2d 712; Kadlowski v. Schwan, 44 S.W.2d 639. (2) There was substantial expert testimony to show that the grantor had no capacity to make a deed on October 11, 1936. Fields v. Luck, 74 S.W.2d 49. (3) Pearl Ludwig was a competent witness to testify as to the mental and physical condition of William Platt. State v. Speyer, 194 Mo. 469. (4) A party calling a witness may not impeach his own witness, nevertheless, when the testimony of such witness is contradicted by other testimony, the party calling such witness is not bound by the testimony of such contradicted witness. United Factories, Inc., v. Brigham, 117 S.W.2d 662.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Proceedings to cancel certain deeds from William Platt and Tillie A. Platt, his wife, to N. Rebecca Campbell and from said Campbell conveying said property back to said Platts, as husband and wife.

William Platt died from cancer of the prostate gland November 1, 1935, at the age of sixty-two. The Platt-Campbell transactions were had on October 11, 1935. The court nisi decreed the cancellation of the deeds.

William Platt was twice married. He and his first wife owned the real estate involved as tenants by the entirety. The first Mrs. Platt died in 1926. No children were born of the second marriage. The parties in interest are: The children of Mr. Platt by his first wife, respondents here; and the second Mrs. Platt, as his widow and grantee in the Campbell-Platt deed, and N. Rebecca Campbell, appellants here.

Appellants contend respondents adduced no substantial evidence to sustain the decree nisi; in fact, that said decree is against all the probative evidence in the case.

The purpose of the Platt-Campbell transactions was to create an estate by the entirety in Mr. and Mrs. Platt. Mrs. Platt makes no contention that the transaction is supported by a valuable consideration. There is no legal presumption against the validity of any provisions a husband may make in his wife's favor (White v. McGuffin (Mo.), 246 S.W. 226, 231(2); Chadwell v. Reed, 198 Mo. 359, 379, 98 S.W. 227, 233); and a conveyance is not invalid solely because it was executed during the grantor's last illness (consult Hamilton v. Armstrong (Banc), 120 Mo. 597, 622, 623, 25 S.W. 545, 550). Respondents say some of the circumstances attending the transactions seem strange; referring to the failure of Mrs. Platt to inform respondents thereof, and Mr. Platt's failure to make provision for a minor daughter. However, respondents expressly disavow having adduced any sufficient evidence to make an issue on fraud, trickery, undue influence, et cetera. The case, therefore, is not one where a grantor by reason of mental weakness, not amounting to mental incapacity, was taken advantage of through some inequitable incident, which, when considered in connection with such mental infirmity, would be sufficient for the intervention of a court of equity to cancel the instrument involved. Respondents seek to sustain the instant decree solely upon the issue of Mr. Platt's mental incapacity to make a deed as of the time of the transaction. [Consult Chadwell v. Reed, supra.]

Respondents, without directing our attention to specific passages from the cases mentioned, say respondents' lay witness Pearl Ludwig [Vinning v. Ramage, 319 Mo. 65, 82(II), 3 S.W.2d 712, 719(3)]; Kadlowski v. Schwan, 329 Mo. 446, 456, 44 S.W.2d 639, 642(6) and respondents' expert witness Dr. Schoetter [Fields v. Luck, 335 Mo. 765, 775(2d), 74 S.W.2d 35, 39(3)], gave substantial, affirmative, and probative evidence that Mr. Platt was mentally incapacitated at the time of the Platt-Campbell transactions. In each of the cited cases there was affirmative testimony (sufficiently indicated by our local citations, supra) that the person whose mental capacity was questioned was mentally incapacitated as of the time of the transaction involved.

Appellants' abstract presents the testimony largely in narrative form, but respondents have not filed an additional abstract or attempted to point out wherein appellants' abstract is insufficient, if so; and we understand they do not question its sufficiency. The record before us does not contain a showing of mental incapacity on a parity with that found in the cases relied on by respondents.

Dr. Schoetter attended Mr. Platt from June 15, 1935, until Mr. Platt's death. The first hypodermic was administered June 26, and we understand from this witness the administration of narcotics steadily increased; that Mr. Platt had plenty of time in which to form the narcotic habit; that he was under the influence of narcotics and they were gradually affecting his body more and more until he died. Dr. Schoetter testified he saw Mr. Platt almost daily from the middle of September; but, when asked, refused to give an opinion as to Mr. Platt's mental condition on October 11, 1935, stating that would be difficult for him to say and all he knew was that he had a lot of narcotics. He affirmatively testified: ". . . he [referring to Mr. Platt] would be delirious and the like, and he would have his lucid moments. . . . There are lucid moments, even under heavy narcotics."

Pearl Ludwig, Mr. Platt's daughter, upon being asked how her father acted around October 11, 1935, replied: "I don't know if he knew me or not; sometimes I think he did and then again I don't. . . ." Witness tells of her father's physical condition; how he lost strength and gradually became weaker. She also narrates facts justifying the conclusion he was delirious at times. Asked if her father knew what was going on around him, she testified: "Well I was there at times, only the times I gave him narcotics, upstairs from the shop. . . . I don't recall his condition on that particular day, the 11th day of October, 1935." Speaking of his "previous" condition, she said: "Well, every day he appeared just about the same to me. He was not delirious every day." And, asked if he was "talking" around two weeks previous to his death: "No, that was around three weeks, and he really wasn't...