Smith v. Smith
| Decision Date | 19 July 1921 |
| Citation | 233 S.W. 183,289 Mo. 405 |
| Parties | MATILDA S. SMITH, Appellant, v. THOMAS R. SMITH, et al |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Reversed and remanded. (with directions).
Sutton & Huston for appellant.
(1) (a) The execution of the lease and deed was the result of undue influence. There existed between plaintiff and defendant, at the time of the execution of the instruments sought to be set aside, a confidential or fiduciary relation, which relation alone raised a presumption of undue influence and devolved upon defendant the burden of showing that the plaintiff was of sound mind, capable of making the deed and lease, and that the instruments in question were made by plaintiff as her free act, uninfluenced by any improper conduct upon the part of defendant, and of showing by clear and convincing proof that he acted with perfect good faith and did not abuse or betray the confidence reposed in him, and of showing that all was fair, open, voluntary and well understood. McClure v Lewis, 72 Mo. 320; Youtsey v. Hollingsworth, 178 S.W. 107; McKissock v. Groom, 148 Mo. 467; Jones v. Belshe, 238 Mo. 539; Jones v Thomas, 218 Mo. 536; Cornet v. Cornet, 248 Mo 234; Wing v. Havelik, 253 Mo. 508; Martin v. Upson, 189 Mo.App. 636; Naylor v. McRuer, 248 Mo. 459; Roberts v. Bartlett, 190 Mo. 700; Grundmann v. Wilde, 255 Mo. 115; Wendling v. Bowden, 252 Mo. 687; Stahl v. Stahl, 214 Ill. 131; Horner v. Bell, 102 Md. 535; Stepp v. Frampton, 179 Pa. 284. (b) The relation of parent and child is a confidential one, and should be taken into consideration upon the issue of undue influence, and when to this relation is added evidence of actual confidence and trust, as in this case, the burden of showing fair dealing and the absence of undue influence is shifted to the defendant. Youtsey v. Hollingsworth, 178 S.W. 107; Jones v. Belshe, 238 Mo. 539; McClure v. Lewis, 72 Mo. 314; Ennis v. Burnham, 159 Mo. 494; Jones v. Thomas, 218 Mo. 536; Wendling v. Bowden, 252 Mo. 687; Stahl v. Stahl, 214 Ill. 131; Horner v. Bell, 103 Md. 535; Stepp v. Frampton, 179 Pa. 284; Ryan v. Ryan, 174 Mo. 286. (c) The rule that the existence of a confidential relation between the contracting parties raises the presumption of undue influence, is not confined to technical fiduciary relations, such as parent and child, guardian and ward, trustee and cestui que trust, principal and agent, but its application extends to all those informal relations in which confidence is reposed or which exist whenever one person trusts in or relies upon another. Stahl v. Stahl, 214 Ill. 131; Horner v. Bell, 102 Md. 135; Stepp v. Frampton, 179 Pa. 284; Ryan v. Ryan, 174 Mo. 286; Jones v. Thomas, 218 Mo. 536; Jones v. Belshe, 238 Mo. 539; Cornet v. Cornet, 248 Mo. 234. (d) Whether the evidence of mental incapacity considered by itself and disconnected with the question of undue influence is sufficient to justify the cancellation of the instruments executed by the plaintiff on that ground or otherwise, yet such incapacity is so interwoven with the question of undue influence as to make it a factor in the case until the controversy as to undue influence is settled. Grundmann v. Wilde, 255 Mo. 115; McKissock v. Groom, 148 Mo. 567; Jones v. Belshe, 238 Mo. 539. (e) Defendant's answer admits that plaintiff at the time of the execution of the instruments sought to be set aside, was "in an aged and feeble condition of mind and body, and without business experience and incapable of resisting the influence of those who might have sinister and selfish aims against her property, and who might seek to defraud her of the same." This, without more, casts the burden upon defendant to show the absence of undue influence and fraud in the procurement of the execution of these instruments. Holser v. Beard, 54 Ohio St. 398. (2) If a grantor has not capacity equal to a full and clear understanding and comprehension of the nature and consequences of the act, the conveyance is invalid. 22 Cyc. 1170; McKissock v. Groom, 148 Mo. 469; Chadwell v. Reed, 198 Mo. 379; Ellis v. McNally, 177 S.W. 658; Turner v. Anderson, 236 Mo. 544-545; Naylor v. McRuer, 248 Mo. 562. (3) In the case of mutual mistake in the making of a contract, equity will reform the instrument. In case of unilateral mistake, equity will cancel or set aside the contract. This is the universal rule where a relation of trust or confidence exists between the parties, or the parties were not dealing at arm's length, or where any fraud was practiced in the procurement of the execution of the contract. Albany City, etc. v. Burdick, 87 N.Y. 46; Story v. Cammel, 94 N.W. 982; Ward v. Speltz, 39 Neb. 809; Hamilton v. Carpenter, 64 N. E. (Ind.) 939; Loyd v. Phillips, 101 N. W. (Wis.) 1092; Cherry v. Brezzolan, 89 Ark. 315; Moffett & Co. v. Rochester, 178 U.S. 385; Keene v. Demelman, 172 Mass. 222-3; Nelson v. Carlson, 54 Minn. 90; Crowe v. Lewin, 95 N.Y. 423; Deman v. Providence & C. Railroad, 5 R. I. 130; Brown v. Lampluar, 35 Vt. 252. (4) Four of the grantees in the deed declined acceptance of the deed, and the deed not having been accepted by all of the grantees becomes void as to all, and this situation vitiates the entire transaction. McNear v. Williams, 166 Mo. 358. (a) Delivery and acceptance of a deed are essential requisites to cause it to operate as a complete and effectual conveyance. Hall v. Hall, 107 Mo.App. 101; Wells v. Hobson, 91 Mo.App. 379; Pullis v. Somerville, 218 Mo. 624; Seibel v. Higham, 216 Mo. 121; McNear v. Williams, 166 Mo. 358; Rogers v. Carey, 47 Mo. 232. (b) There can be no delivery without the consent of the grantee. Turner v. Carpenter, 83 Mo. 333; Schooler v. Schooler, 258 Mo. 83. (c) There can be no delivery of a deed without acceptance of the grantee. Miller v. McCaleb, 208 Mo. 562; McNear v. Williams, 166 Mo. 358; Cravens v. Rassiter, 116 Mo. 338; Schooler v. Schooler, 258 Mo. 83. (d) No title passes until the deed is accepted by the grantee. Cravens v. Rassiter, 116 Mo. 338; Rogers v. Carey, 47 Mo. 232, 236. (e) The filing of a deed made to an adult grantee for record and the recording of the same unauthorized by the grantee, does not constitute a delivery or acceptance. Miller v. McCaleb, 208 Mo. 562; Cravens v. Rassiter, 116 Mo. 338; Allen v. Degroodt, 105 Mo. 442; Rogers v. Carey, 47 Mo. 232. (f) The filing for record of a deed raises a rebuttable presumption of acceptance by the grantee. McLean v. Goodwillie, 204 Mo. 306; Miller v. McCaleb, 208 Mo. 562; Peters v. Berkemeier, 184 Mo. 393; Whittaker v. Whittaker, 175 Mo. 1; Chambers v. Chambers, 227 Mo. 262.
Creech & Penn for respondents.
(1) When Mrs. Smith caused, or permitted the deed to her lands to be recorded, conveying her property to her children, there was a presumption of delivery, which can only be overcome by evidence adduced by plaintiff, which removes all reasonable doubt that the grantor thereby intended to deliver the deed. Hall v. Hall, 107 Mo. 108; Burkey v. Burkey, 175 S.W. 624; Chambers v. Chambers, 227 Mo. 284; Tobin v. Bass, 85 Mo. 658; Standiford v. Standiford, 97 Mo. 239; Sneathen v. Sneathen, 104 Mo. 210; Devey v. Fielder, 216 Mo. 192. Acceptance of a deed may be proved by direct or circumstantial evidence, and the presumption of acceptance is stronger where the deed is voluntary, than where there is a sale of the land. Burkey v. Burkey, 175 S.W. 624; Schooler v. Schooler, 258 Mo. 921, 167 S.W. 444; Chambers v. Chambers, 227 Mo. 284. (2) The assumption that Tom Smith bore a confidential or fiduciary relation to his mother, from which undue influence might be presumed, merely because he was her son, and the natural esteem and affection which should characterize the relation existing between mother and son, unaffected by any other relationship, cannot be maintained by reason or on authority. McKinney v. Hensley, 74 Mo. 332; Hamilton v. Armstrong, 120 Mo. 615; Maddox v. Maddox, 114 Mo. 46; Doherty v. Noble, 138 Mo. 32; Bousall v. Randall, 192 Mo. 531; Huffmann v. Huffmann, 117 S.W. 3, 217 Mo. 182; Stanfield v. Hennegar, 259 Mo. 51; Beanland v. Bradley, 2 Smale & G. 339; Mackall v. Mackall, 135 U.S. 167; Jones v. Thomas, 218 Mo. 508; McLeod v. McLeod, 145 Ala. 269; Francis v. Wilkinson, 147 Ill. 370; McCord v. McCord, 136 Iowa 53; Cooper v. Moore, 55 Misc. 102; Teter v. Teter, 59 W.Va. 449; Wessell v. Rathjohn, 89 N.C. 377; Townson v. Moore, 173 U.S. 17; Prescott v. Johnson, 91 Minn. 273; Rader v. Rader, 108 Minn. 139; Stanfield v. Johnson, 159 Ala. 546; Sears v. Vaughan, 230 Ill. 572. The deed and lease contemporaneously executed are part and parcel of one transaction and should be read together as one instrument, and when so read makes it clear that a life tenancy was reversed in the lands to Mrs. Smith. Cook v. Newly, 213 Mo. 471. (3) When there is a mutual mistake in the execution of an instrument or instruments, in that the written instrument does not express the contract which the parties actually entered into, whether the mistake be of law or fact, equity will reform the contract, and this, too, whether the proceeding to reform be by way of a bill to correct a mistake, or by way of an answer as a defense asking affirmative relief. Corrigan v. Tiernay, 100 Mo. 280; Williamson v. Brown, 195 Mo. 332. (4) The mental incapacity of Mrs. Smith to comprehend and understand the nature of the transaction entered into by her and her son, Tom, is not alleged in plaintiff's petition as a ground for setting aside the deed and lease, but is alleged only as an incident to the susceptibility of Mrs. Smith to undue influence, and the evidence as to her mental incapacity to execute the deed and lease, not being within the pleadings, should be ignored by the court.
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