Plummer v. Lasson
| Decision Date | 03 January 1944 |
| Docket Number | 38309 |
| Citation | 177 S.W.2d 455,352 Mo. 316 |
| Parties | Ella D. Plummer v. Joseph Randolph Lasson and Grace Lasson, Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied February 7, 1944.
Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.
Affirmed.
R C. Southall for appellants.
(1) The decree of the court was against the law, against the evidence and against the weight of the evidence as applicable to the rules of equity. Home Trust Co. v. Shapiro, 64 S.W.2d l.c. 733; Remmers v. Remmers, 117 S.W. 1117 217 Mo. 541; Shannon v. Crabtree, 71 S.W.2d l.c. 710; 13 C.J. 612. (2) The decree was contrary to the rule of equity that "in an action to divest defendants' title to real estate, the evidence must be so positive as to leave no ground for hesitancy." Forrester v. Scoville, 51 Mo. 268; Bailey v. Smock, 61 Mo. 213; Ferguson v. Robinson, 167 S.W. 453; Ray County Bank v. Hutton, 123 S.W. 47, 224 Mo. l.c. 72; Brechle v. Pechan, 21 S.W.2d l.c. 907; Jones v. Nichols, 216 S.W. l.c. 664, 280 Mo. l.c. 664; Roundtree v. Gordon, 8 Mo. 19; Bartlett v. Glascock, 4 Mo. 62; Hewes v. Musick, 13 Mo. 395; Johnson v. McGruder, 15 Mo. 365. (3) Equity will not aid one who fails to exercise ordinary prudence to protect himself from fraud. McCaw v. O'Malley, 249 S.W. 44; Brown v. Railroad, 187 Mo.App. l.c. 109; Foundry Co. v. Heskett, 102 S.W. 1050, 125 Mo.App. l.c. 530; Cooley on Torts (2d Ed.) 570; Lewis v. Land Co., 28 S.W. 324, 124 Mo. 672; Bradford v. Wright, 123 S.W. 108, 145 Mo.App. 623; Davis v. Insurance Co., 81 Mo.App. 266; Hines v. Royce, 106 S.W. 1091; Goodrich Rubber Co. v. Bennett, 281 S.W. 75; Thompson v. Lindsay, 145 S.W. 472, 242 Mo. 75; Jones v. Rush, 57 S.W. 118; Ark. Light & Power Co. v. Bauer-Poguey Co., 110 S.W.2d 529; Drown v. Tough, 38 S.W.2d l.c. 739; Ensler v. Mo. Pac. R. Co., 23 S.W.2d 1034, 324 Mo. 530; Brennecke v. Ganahl Lbr. Co., 44 S.W.2d l.c. 630; State ex rel. St. Louis Car Co. v. Hughes, 152 S.W.2d 193; Gwin v. Waggoner, 11 S.W. 227, 98 Mo. 315; Rau v. Robertson, 260 S.W. 751; Donnelly v. Mo. Lincoln Trust Co., 144 S.W. 388, 239 Mo. 370; Hannah v. Butts, 14 S.W.2d 31; Bispham's Principles of Equity, p. 407; Woolsley v. Wells, 281 S.W. 700; Anderson v. Drug Co., 130 S.W. 829, 149 Mo.App. l.c. 573. (4) There was no fiduciary relationship between plaintiff and defendants at the time Exhibit 8 was executed. Fernbaugh v. Clark, 163 S.W.2d 999; 7 C.J.S., sec. 108, p. 940; Bispham's Principles of Equity, p. 407; In re Conrad, 105 S.W.2d 1; Foster v. Abrahams, 241 P. 274, 72 Cal.App. 521; Korte v. Brown, 255 P. 1103, 124 Okla. 282; Johnson v. Mound City State Bank, 58 S.D. 622. (5) The decree was inconsistent with plaintiff's admitted intention to convey title by some form of conveyance. Mangold v. Bacon, 141 S.W. 650, 237 Mo. 496; Johnson v. United Rys. Co., 152 S.W. 362, 247 Mo. 326. (6) The decree disregards that rule of equity that "the consideration expressed in deeds is open to explanation by parol evidence in proper cases, but cannot be denied for the purpose of defeating the operating or granting clause of a conveyance." Blackiston v. Russell, 44 S.W.2d 27, 328 Mo. 1164; Masterson v. Sheahan 186 S.W. 524; 2 Tiffany on Real Property, p. 1624; Cadwallader v. West, 28 Mo. 483; Clark v. Skinner, 70 S.W.2d l.c. 1097. (7) The decree disregards the equitable maxim that "he who seeks equity must do equity." Dalpine v. Lume, 122 S.W. 776, 156 Mo.App. 549; Cravens v. Moore, 61 Mo. 178; Bates v. Dana, 133 S.W.2d 326; Walker v. James, 85 S.W.2d 876; Home Trust Co. v. Shapiro, 64 S.W.2d 717; Rupple v. Sav. & Loan Assn., 59 S.W. 1000; Hanson v. Neal, 114 S.W. 1073; Walsh v. Walsh, 226 S.W. 236; Shuee v. Shuee, 100 Ind. 477; Jones v. McGonigle, 37 S.W.2d l.c. 895; Kisling v. Yoder, 236 S.W. 860; Groff v. Longsdon, 239 S.W. 1087; Callahan v. Shotwell, 60 Mo. 398. (8) The decree was the result of bias and prejudice against the defendants and sympathy for the plaintiff. 1 Pom., Eq. Jur., sec. 47; Sells v. West, 28 S.W. 969.
David R. Derge and Robt. M. Murray for respondent.
Answering appellants' Point (1). Home Trust Co. v. Shapiro, 64 S.W.2d 717; Shumate v. Hoefner, 147 S.W.2d 640; Bick v. Mueller, 142 S.W.2d 1021; O'Meara v. New York Life Ins. Co., 169 S.W.2d 116; Langwell v. Willbanks, 106 S.W.2d 417; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Hershey v. Horton, 322 Mo. 334, 15 S.W.2d 801; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Blackiston v. Russell, 328 Mo. 1164, 44 S.W.2d 22; McClure v. Lewis, 72 Mo. 314; Barrett v. Ball, 73 S.W. 865; Morton v. Forsee, 155 S.W. 763; In re Conrad, 105 S.W.2d 1. Answering appellants' Point (2). Answering appellants' Point (3). White v. Whitaker, 171 S.W.2d 684. Answering appellants' Point (4). Barrett v. Ball, 73 S.W. 865. Answering appellants' Points (5) and (6). Answering appellants' Point (7). Kisling v. Yoder, 236 S.W. 860; Kadlowski v. Schwan, 329 Mo. 446, 44 S.W.2d 639. Answering appellants' Point (8).
Action to set aside a warranty deed executed by the plaintiff which conveyed to the defendants, husband and wife, the title to the west forty feet of Lot 402 in Marlborough Heights, an addition to Kansas City, Mo. The consideration stated in the deed is "one dollar and other good and valuable considerations". The chancellor set aside the deed. Judgment accordingly and defendants appealed.
In substance the petition alleged that the deed was without consideration and that by misrepresentation and fraud the defendants induced the plaintiff to execute the deed.
In substance the joint answer of the defendants alleged that plaintiff deeded the property to the defendants in payment of legal services rendered to plaintiff by defendant Joseph R. Lasson, an attorney of Kansas City, Mo., and in consideration of his promise to continue rendering legal services to plaintiff during her life time, and in consideration of a continuation of the services being rendered to plaintiff by the defendant Grace Lasson. The reply denied the allegations of the answer. Plaintiff will be referred to as Ella. Defendants will be referred to as Joseph and Grace.
Ella and husband were in business in St. Louis for thirty-eight years. They sold building material and constructed fronts on store buildings. She was interested in the business and it was her part of the work to "figure the balances and take off the discounts". She made loans on real estate both in St. Louis and Kansas City.
On being divorced, she moved to Kansas City. At the time of the trial she was sixty-nine years of age, had resided in Kansas City five years, and had only a limited income. She became acquainted with Joseph and Grace in 1940. At that time she resided at 2420 Linwood and had two women roomers. Seemingly Ella, Joseph and Grace became close friends. Grace owned an automobile. On her invitation, Ella frequently made trips with her about the city and surrounding counties. On these trips Ella attended to shopping and other personal matters. In the course of the association Ella stated that she would like to purchase a lot on which both could build a home and reside as neighbors. In view of the suggestion, Grace, who was in the real estate business, from time to time exhibited to Ella lots in different parts of the city. Ella was not satisfied with the lots. In this situation Grace suggested that she purchase the property on which Joseph and Grace resided at 1485 E. 77th Street, known as Lot 402 Marlborough Heights. The lot is one hundred feet in width and the residence is located on the west forty feet of the lot. They paid $ 20.00 a month rent. Ella thought favorably of the suggestion and stated she would pay $ 2500.00 for the property. Grace arranged for a sale of the property to Ella. She requested Ella to permit Joseph to attend to the matter. Ella signed a check for $ 2500.00 payable to Joseph which she delivered to him to pay for the property. He drew the contract for the sale and purchase of the property. There were many liens against the property which was owned by the Findlay-Marlborough Realty Co. On satisfaction of the liens, the Kansas City Title Insurance Co. guaranteed the title. Joseph paid the owner and received a warranty deed, which was recorded on February 14, 1941. On receiving the deed, Ella expended $ 300.00 in repairing the house in which Joseph and Grace resided.
In the meantime Ella decided to purchase the vacant lot at 1483 E 77th Street, known as Lot 403 Marlborough Heights. It adjoined the lot on which Joseph and Grace resided. At Grace's request Ella also permitted Joseph to attend to this matter. Lot 403 was owned by a woman residing in Illinois, who offered to sell the same for $ 400.00, if Ella would pay the taxes, including a sewer tax. Later she offered the lot for $ 350.00 if Ella would pay the taxes, including a sewer tax. Ella accepted the offer, received a deed for the lot and paid all the taxes. She built a house on the lot and moved to same April 1, 1941. On May 10, 1941, she manifested her friendship by deeding to Grace as a gift the east sixty feet of Lot 402, of the value of $ 500.00, on which to build a house and reside next to Ella. In June, 1941, Grace stated to Ella that they liked the home in which they resided and also stated that the house needed some repairs. She inquired what Ella would take for the property. Ella stated $ 2300.00. Grace stated they had a lot of money invested in an invention of Joseph's from which they had an income. There was nothing more said about the matter until in September. At that time Grace stated they would likely be able to buy the property and again inquired of Ella how much she would take for the property. Ella stated $ 1900.00 in its present condition. Grace stated that was reasonable. She further stated that they would...
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