Smith v. Smith

• Decision Date: 19 July 1921
• Docket Number: No. 20937.,20937.
• Citation: 233 S.W. 183,289 Mo. 405
• Parties: SMITH v. SMITH et al.
• Court: Missouri Supreme Court

233 S.W. 183

289 Mo. 405

SMITH v. SMITH et al.

No. 20937.

Supreme Court of Missouri, Division No. 2.

July 19, 1921.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Action by Matilda S. Smith against Thomas R. Smith and others. From a judgment reforming a deed and a lease and an order overruling plaintiff's motion for a new trial, plaintiff appeals. Reversed and remanded.

Sutton & Huston, of Troy, for appellant.

Creech & Penn, of Troy, for respondents.

HIGBEE, P. J.

Plaintiff brought this suit September 9, 1916, to cancel a lease which she had executed August 24, 1918, of her farm of 217 acres in Lincoln county, Mo., to her oldest son, Thomas R. Smith, and a deed of the same date conveying said farm to her children, Thomas R., Hugh B., George W., Grover C., Edward B., and Josephine S. Williams, subject to said lease and two deeds of trust, one for $1,700 to Zula Thurman, dated July 18, 1913, the other for $021.50 to her daughter Josephine S. Brady, now Williams, dated August 19, 1914.

The plaintiff's first husband died in 1888. She was beneficiary in life insurance policies on the life of her husband and another relative in the total sum of $4,500. She lived on and managed the farm indifferently for some years after her husband's death. She later married a man by the name of Luckett, who had a large pack of hounds, built a race track on the farm, exhibited a freak animal at county fairs, squandered nearly all of her insurance money, and grossly mistreated her. All of her grown children advised her to divorce him. She did so in 1903, and paid him $1,000 by way of settlement. She had poor health, and suffered a paralytic stroke. Her children advised her to move to St. Louis, where Thomas, Josephine, George, and Hugh lived. She did this in 1003, after selling off her live stock, farm machinery, and household goods, and leased her farm to a Mr. Hughes at an annual rental of $620, subject to abatement on account of droughts and floods. During the subsequent years to 1915, she did not receive over $400 per year out of the rents. This was inadequate for her support and payment of taxes, and her medical bills. Some of the time, when able, she kept boarders. The leasing of her farm, then estimated to be worth at least $15,000, was the subject of many conferences for two or three years between Mrs. Smith, Thomas, and some of her other children. There was a fairly good house on the farm but the barn, other outbuildings, and fences were falling into decay. Owing to its distance, her age, and the impairment of her health and mental faculties, it was believed she was unequal to the task of looking after her property and protecting her interests. After paying the taxes and interest on the mortgages, there was little left to her out of the rents.

At that time there was $1,000 arrears of rent due her from Hughes. Thomas insisted that the farm could be rented for $500 per year, but they failed to secure a tenant who would pay that sum. She talked the matter over with him and Hugh, and probably with some of her other children. Finally, Thomas said he would take a lease on it for 10 years at $500 per year, and pay her that sum each year, and that whatever amount it should be necessary for him to pay for permanent improvements, to the extent of $1,500, and for taxes and other fixed charges over the said $500 a year, should be a lien in his favor on the land, and should be taken to extend the term of the lease after his mother's death at $500 per year for such time as should be covered by any sum he should so advance during her lifetime, or for her benefit, or upon said property in excess of said $500 per year. This appeared to be satisfactory to Mrs. Smith and .Hugh, and accordingly she and. Thomas on the evening of August 24, 1916, took the train for Troy, the county seat of Lincoln county, arriving there after midnight. The following morning they called upon Mr. Charles Martin, who had been her attorney for many years, who had secured her divorce in 1903, and attended to the settlement of her first husband's estate and other business matters. They talked the matter over with Mr. Martin, who made memoranda, and told them he was busy, and for them to go to see the farm and return the next day, which they did. Mr. Martin had written the lease and his son, Robert, the deed. They were read over, signed, and acknowledged by Mrs. Smith. Robert Martin had them recorded, and mailed them to Thomas in St. Louis, who showed them to Hugh and to Josephine in her mother's presence. Josephine, who had been a stenographer in a law office for four years, said:

"Why Mamma, you deeded everything away; you haven't got a penny, and Tom is the only one that could give it back."

Mrs. Smith was then and had been for some time living with her daughter, Josephine.

The second amended petition charges that plaintiff was without any means of support except as derived from her land, and was afflicted with physical and mental infirmities due to old age and disease, and was without previous business experience, and wholly incapable of resisting the influence of those about her, and particularly of Thomas R. Smith, who was her confidential business adviser and had an irresistible influence over her, and that by reason thereof she was induced against her will to execute the lease and deed which were set out in the petition; that she did not understand the terms and conditions of said instruments, and that they failed to reserve to her a life estate in said land, and the rents thereof during her life, but she believed said instruments were se drawn as to reserve to her a life estate in said lands and the rents accruing thereon during her life; that she did not understand that by said lease defendant was permitted to deduct the value of improvements made by him from the annual rents, but that she believed that, by the terms of said lease, she should receive $500 annually in cash, without deductions for improvements, or any other account, and believed said lease provided that defendant should have the privilege of making permanent improvements not to exceed $1,500, and, in case the annual rental of $500 was insufficient to maintain plaintiff in a suitable manner, then that defendant should advance plaintiff adequate funds for that purpose during her life, and in case of such advancements being made to plaintiff, or of such improvements being made upon said land by defendant, then that this should operate as an extension of the terms of said lease after plaintiff's death for a period sufficient to reimburse defendant for such advancements and improvements at a rental of $500 per annum, and that defendant should keep all buildings on the premises insured and pay the premiums thereon, and pay all taxes on the premises as further rental in addition to the $500 per annum aforesaid, and believed that the children should assume and pay the debts secured by said deeds of trust aforesaid; that plaintiff did not understand that the taxes and insurance on the premises should be taken as credits on the annual rents received; that she was induced to execute the said instruments by the undue influence of the said Thomas amounting to overpersuasion and coercion, and by false representations, pretenses, and deception practiced upon her as aforesaid, and relied upon by her, and by reason of the fiduciary relation existing between them, and her implicit confidence in...