Shafer v. Hatfield

• Decision Date: 12 September 1949
• Docket Number: 41128
• Citation: Shafer v. Hatfield, 223 S.W.2d 396, 359 Mo. 673 (Mo. 1949)
• Parties: Walter Shafer, Respondent, v. O. D. Hatfield, Appellant
• Court: Missouri Supreme Court

223 S.W.2d 396

359 Mo. 673

Walter Shafer, Respondent, v. O. D. Hatfield, Appellant

No. 41128

Supreme Court of Missouri

September 12, 1949

Rehearing Denied October 10, 1949.

Appeal from Jasper Circuit Court; Hon. Walter E. Bailey Judge.

Affirmed.

SYLLABUS

Plaintiff's deed is set aside on the ground of undue influence. Interruption of cross-examination by plaintiff's counsel did not require plaintiff's deposition to be suppressed.

Roy Coyne for appellant.

(1) That the court erred in failing to sustain defendant's motion to dismiss after plaintiff's evidence was submitted, for the reason that John H. Flanigan, Sr., picked said lawsuit out of thin air, and for the reason that John H. Flanigan, Sr., because of picking said lawsuit out of thin air, did not have the right nor authority to file the suit for the plaintiff. (2) That the court erred in finding for the plaintiff on the theory of a unilateral contract, for the reason John H. Flanigan, Sr., had repeatedly stated in open court that the petition was founded and based only on fraud and undue influence; and for the further reason that the court took into consideration the contract, which contract had not been pleaded in plaintiff's petition, and that the court stated in open court that he was not finding for plaintiff on the grounds of fraud and undue influence, as stated in the petition, but because of a unilateral contract; which is not pleaded. Roll v. Fidelity Nat. Bank & Trust Co., 115 S.W.2d 148; Jeffries v. Economical Ins. Co., 89 U.S. 47; Banner Creamery Co. v. Judy, 47 S.W.2d 129; Yippenfield v. Morgan, 168 S.W.2d 971; Hays v. Equitable Life Assur. Society, 150 S.W.2d 1113. (3) The court erred in failing to sustain a motion to quash and suppress the deposition of Walter Shafer taken on July 26, 1945, because of the conduct and action of the attorney representing the plaintiff who undertook to and did dictate to the witness the answers to be made to questions asked on cross-examination by counsel for the defendant and did interfere with and prohibit the said witness, Walter Shafer, from being cross-examined by defendant's attorney, and the court erred in permitting said deposition to be read in evidence in this case. (4) Because upon the face of the pleadings neither the supposed plaintiff nor John H. Flanigan, Sr., was entitled to any affirmative relief. (5) Because the court erred in filing his memorandum opinion which sets out that he finds the judgment on a unilateral contract, not pleaded, and fails to find fraud or undue influence practiced in this case. (6) Because the court erred in denying defendant's motion to dismiss at the close of plaintiff's case.

McReynolds & Flanigan, Laurence H. Flanigan and John H. Flanigan for respondent.

(1) The warranty deed was properly cancelled on the ground that it had been obtained by undue influence. 12 Am. Jur. 641, sec. 148; Holland v. Anderson, 196 S.W.2d 175; Turner v. Turner, 44 Mo. 535; Martin v. Baker, 135 Mo. 495; Jones v. Belshe, 238 Mo. 525; 13 C.J. 407, sec. 332; 26 C.J.S., pp. 294, 295; 17 C.J.S. 540, sec. 181; 17 C.J.S. 543, sec. 185; Dingman v. Romine, 141 Mo. l.c. 475. (2) Where, as here, a fiduciary relationship exists between a grantee who is active in procuring execution of deed, and grantor, the grantee has the burden of disproving undue influence. Holland v. Anderson, 196 S.W.2d 175; Hatcher v. Hatcher, 139 Mo. l.c. 624; Street v. Goss, 62 Mo. 226; 26 C.J.S. 609-611.

Bradley, c. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to cancel and set aside a deed to 8-1/3 acres of land in Jasper County on the ground of alleged undue influence; there was a second count in ejectment to recover possession and damages. The trial chancellor cancelled and set aside the deed; entered judgment for plaintiff for $ 750.00 damages and for possession; defendant appealed.

Respondent died after the appeal was taken, and on motion here Guy W Shafer, administrator of the estate, and Michael M. Shafer and Anna King were substituted as respondents as to the judgment on count one, and the administrator was substituted respondent as to the judgment on count two. Deceased left no widow or lineal heirs; Michael M. Shafer and Anna King are brother and sister of deceased and his only heirs; Guy W. Shafer, administrator, is the son of Michael and nephew of deceased. To accommodate the situation the term respondent throughout this opinion has reference to deceased unless otherwise noted.

Respondent had owned 160 acres of land; the land was sold and the proceeds invested in two houses and lots in Carthage, and the 8-1/3 acres place here involved. The title to each of these properties was in respondent and his wife by the entirety. Respondent was born in 1881; the deed here involved was executed by him April 13, 1948, on same day that he and his wife were divorced on the cross bill of the wife; the deed was subsequent to the divorce. Also, on same day and subsequent to the divorce, respondent, pursuant to a property settlement, conveyed to his divorced wife his undivided interest in the two houses and lots in Carthage and she conveyed to him her undivided interest in the 8-1/3 acres and gave him her check (cash) for $ 800.00. At the time of the separation which we may say was September 5, 1944, respondent and his wife resided on the 8-1/3 acres place.

For some years prior to the execution of the deed here involved respondent had been in poor health; he had a paralytic stroke in 1936 and in 1940. His wife, before the marriage, was Charlotte Buckingham; they were married in 1918. Appellant, with his family, resided across the road from the 8-1/3 acres place. September 5, 1944, respondent was taken to what is termed a mental institution; remained for a month; was taken back home by his nephew, Guy W. Shafer, now the administrator. While respondent was at the mental hospital his wife locked up the house and went away. After returning home respondent's brother Michael and his nephew Guy, and another, stayed with him some; appellant and his wife also looked after him. Respondent unsuccessfully sought to make arrangements for his keep with a Carthage convalescent home. Appellant and his family were kind and attentive to respondent and he entered into some kind of a verbal agreement or contract with appellant respecting his care and keep.

Respondent filed suit for divorce December 12, 1944, and on December 15th a contract between respondent and appellant was reduced to writing. The written contract provided that appellant and family would move into the home of respondent; look after and care for him; provide for his meals, etc.; that until property settlement was made between respondent and his wife, respondent would pay appellant $ 60.00 per month for his board and services to him; that appellant would pay respondent $ 20.00 per month for rent. The contract provided that respondent would convey to appellant "all of the property owned by him" after the property settlement was made, costs of divorce suit paid, etc. As stated, exchange of property settlement deeds was made on April 13, 1945, date of divorce, and on same day respondent conveyed the property in question to appellant. John H. Flanigan, Jr. and R. A. Mooneyham, attorneys, represented respondent in the divorce case and property settlement; the property settlement deeds were signed by respondent in Mr. Flanigan's office in Carthage; Mr. Mooneyham was present; but the deed to appellant was signed at his (respondent's) home later in the day (evening). Mr. Mooneyham prepared the deed and took it out to respondent's home. This deed was not mentioned at Flanigan's office.

Mr. Mooneyham drew the contract dated December 15, 1944, between respondent and appellant, but according to Mr. Flanigan, Jr., he did not know about that contract and appellant's deed until June 7, 1945. Mr. Flanigan had told respondent that he would prepare his will, and in ten days or two weeks after April 13th respondent called Flanigan about the will. If appellant's contract and deed were valid respondent had no property to dispose of by will. Guy W. Shafer, respondent's nephew, had ascertained that appellant was trying to get insurance on the house on the 8-1/3 acres place; told Mr. Flanigan, who made investigation and ascertained about the contract and the deed. On June 7th or 8th, respondent went to his brother Michael's home and this cause was filed June 9, 1945.

Respondent's health remained bad and his counsel, fearful that he might die, served notice to take his deposition on June 22, 1945. Appellant sought and obtained a continuance on the taking of the deposition. Respondent's counsel then sought from a judge of this court a commission to take depositions to perpetuate evidence. See Secs. 1953 et seq. R.S. 1939, Mo. RSA Secs. 1953 et seq. The commission was not issued but respondent's deposition was taken July 26, 1945. Respondent was not able to attend court at the time of the trial and his deposition was read in evidence. As to the contract respondent testified:

"I had an understanding with Mr. Hatfield to pay him $ 50.00 per month; I was to take out $ 20.00 for rent; I rented the place to him; he was to take care of me; he paid the taxes and for what doctors I had (with respondent's money); he paid the insurance with my money; he drew checks on my bank account he remained in charge of my business until I left June 7th or 8th 1945; no one nursed me and took care of my person; I was able to take care of myself; no one had to bathe me; I shaved myself; my meals were served at the table. Mr. Hatfield and his wife were kind and considerate of me. Mr. Hatfield suggested that I go see Mr. Mooneyham (about the divorce); he took me to see him; he thought Mooneyham was a good...