Rothenbarger v. Rothenbarger

• Citation: 111 Mo. 1,19 S.W. 932
• Parties: ROTHENBARGER et al. v. ROTHENBARGER et al.
• Decision Date: 20 June 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 932

111 Mo. 1

ROTHENBARGER et al. v. ROTHENBARGER et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1892.

EQUITY — BILL TO CANCEL DEED — FRAUD.

On a bill to cancel a quitclaim deed for fraud and undue influence, it appeared that plaintiffs, two sisters, were each given by their father, on a division of his property, 80 acres of land worth $50 per acre; that the deeds were delivered by the father on the understanding that they were to be kept in his trunk until after his death; that, after the father's death, defendant, plaintiffs' older brother, took possession of the deeds, and refused to give them up; that defendant represented to plaintiffs that the deeds were not good, and he could have them canceled; that, unless plaintiffs made a quitclaim deed of the land, he would drive them from home; that the deed was made without consideration or advice, and without knowing the value of the land. Held, that plaintiffs were entitled to the relief sought.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Bill to cancel a deed by Sarah E. Rothenbarger and another against John F. Rothenbarger and others. Plaintiffs had decree, and defendants appeal. Decree modified and affirmed.

McReynolds & Halliburton, for appellants. Thomas & Hackney, for respondents.

BRACE, J.

This is an action to set aside a quitclaim deed executed by plaintiffs, Sarah Ellen and Susan M. Rothenbarger, dated January 3, 1885, whereby, for the consideration of one dollar, they conveyed all the interest acquired by them, by two deeds made to them by their father, Solomon Rothenbarger, and his wife, in the S. E. ¼, and the S. E. ¼ of N. E. ¼, of section 36, township 28, range 33, in Jasper county, to the heirs of said Solomon, deceased, to take in accordance with the provisions of the will of said Solomon, dated March 15, 1881, on the ground of fraud and undue influence. From the decree of the circuit court setting aside said quitclaim deed the defendants appeal.

It appears from the evidence that in October, 1883, Solomon Rothenbarger, of advanced age and in feeble health, was living on his farm in Jasper county, of which the premises in question formed a part; that his family consisted of his wife, Jane, his oldest son, Jacob, a younger son, John, and his two single daughters, the plaintiffs, Sarah Ellen and Susan M.: that he had been an invalid for some years, and his business was being managed by his oldest son, Jacob, who was a strong-willed and imperious man, to whom the younger children were in the habit of yielding obedience; that Sarah Ellen and Susan M., the youngest of the children, were raised on the farm, and had no business education or experience other than such as falls to the lot of girls whose whole time is engaged in household duties and in attendance upon their sick father; that previous to the 6th of October, 1883, he had conveyed 80 acres of his farm to his son Jacob; that on that day he duly executed and acknowledged, before a notary public by the name of Webb, four deeds, — one to his wife for 80 acres, one to his son John for 90 acres, one to his daughter Sarah Ellen for 80 acres, and one to his daughter Susan M. for 80 acres. Sarah Ellen testifies: "The first I knew anything about the deeds, father had B. T. Webb in the house making the deeds. He said: `Ellen, which piece of land do you want?' I said: `I want the piece Turkey creek ran through.' He said: `No, I will not give that to you. I will give that to Susan.' After the deeds were signed and acknowledged [she continues] father said: Ellen, here is your deed, and here is Susan's, and here is your mother's deed, and there is John's. Place them in that trunk till after my death. After my death they are to be recorded, and they are to be yours, and there is to be a division of the land.'" Susan M. testifies: "I saw father hand sister Ellen the deeds, and he said: `Take these deeds. Here is Susan's and your mother's and John's deed. Place them in that trunk until after my death, and then you girls will have that land; it will be divided then." Mrs. P. J. Ware, one of the defendants and a sister of the plaintiffs, testified that she had a conversation with her father about the deeds a short time after they were executed, in which he said: "`I made Sue and Ellen and John and mother a deed. I have given their deeds to Ellen until my death.' He said: `I gave the east part of the farm to Susan;' the next was Ellen's; the home place where the house was, he said was ma's, and next adjoining Jake's was John's. He said: `I deeded Jake his land several years ago.'" These are the only witnesses who undertake to give the language of the grantor in respect of the disposition he desired made of the deeds which he had signed and acknowledged, and their evidence is set out so far as they undertook to give his words on that subject. John Rothenbarger, one of the defendants, who it seems was not present when the deeds were signed and delivered, testifies that he received his deed from his mother, — he thinks, the same day it was executed, — at his father's bedside, who told him to take it and keep it, but not to put it on record until after his death, and that he had made the other deeds. Jacob Rothenbarger, for the defendants, testified as follows on this branch of the case: "Question. What was done about signing and acknowledging? Answer. I was not in the house, and know nothing about it. Q. Were you there when they were put away after they were signed and acknowledged? A. I was. Q. What was done with them? A. I can't say what was done with John's; it was left on the table. The girls' deeds were put in the old man's trunk. The old lady's deed was put in my trunk by myself. Q. Who took the two deeds to the girls, and put them in your father's trunk? A. I did. Q. Why did you? A. The old man told me to. Q. What did he say about what was to be done with them? A. They were to be left there until after his death. That is all he said at that time. Q. Who did he tell to put them in the trunk? A. He told me." The deeds of the girls remained in the trunk in their father's room from the time of their execution until after the death of their father, unless perhaps taken out temporarily by some member of the family, all of whom had access to the trunk, which was either unlocked, or, if locked, the key was put in the clock on the mantel. It does not appear that Solomon Rothenbarger ever rose from his bed after the execution of these deeds, but thereafter he had to be "bathed, rubbed, waited on, and lifted" in bed by his attendants. This daughter Sarah Ellen was his nurse, gave him all his medicine, and was in immediate charge of him and his surroundings, while the other members of the family attended to the duties of the farm and household, and rendered such assistance from time to time as the exigencies of his situation demanded, until his death, which occurred in the summer or fall of 1884. It...