Snyder v. William Arn
| Decision Date | 14 March 1905 |
| Citation | 86 S.W. 197,187 Mo. 165 |
| Parties | EMMA SNYDER et al. v. WILLIAM ARN and T. B. WALLACE, Guardian of MENIA ARN; WILLIAM ARN, Appellant; and WALLACE, Respondent |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.
Affirmed.
Wilkinson & Wilkinson for appellant.
(1) Plaintiffs' amended petition does not state a cause of action; under the will of Cornelius Arn his widow took the fee. Allen v. Claybrook, 58 Mo. 124; Small v Field, 102 Mo. 104; Holder v. Holder, 59 N.Y.S 204, 40 A.D. 255; Clark v. Leupp, 88 N.Y. 228; Brown v. Perry, 64 N.Y.S. 402; In re Cressler's Estate, 161 Pa. St. 427; Talbot v Hammil, 151 Mo. 292; Balliet v. Veal, 140 Mo. 187. (2) Having found against plaintiffs, the court erred in then proceeding to determine the validity of the deed from Menia Arn, defendant, to her codefendant. The answer of Menia Arn is bad for multifariousness. Defendant's motion to strike out allegations of fraudulent representations should have been sustained. Barr v. Cubboge, 52 Mo. 404; Cheely v. Wells, 33 Mo. 106; Linney v. Martin, 29 Mo. 28; Stuecup v. Turner, 26 Mo. 72. (3) There was a misjoinder of causes of action presented by Menia Arn's answer. The cause of action set out in the petition is statutory; the interest of the plaintiffs, if any, is a legal interest. The interest of the defendant, William Arn, is a legal interest. The interest of the defendant, Menia Arn, if any, is purely equitable. She can not obtain equitable relief against her codefendant. (4) Evidence of undue influence is not admissible where the pleadings do not charge undue influence. Bush v. Bush, 87 Mo. 480. A party can not state one cause of action or defense and recover on a different one. He must stand on the case as made by his pleadings. Hollman v. Lange, 143 Mo. 100; Crawford v. Altman, 139 Mo. 262; Weil v. Posten, 77 Mo. 284; Chapman v. Callahan, 66 Mo. 299. (5) Under the pleadings in this case no evidence of mental incapacity, undue influence or duress should have been admitted or considered. A party is precluded from making proof of a matter not pleaded. Bush v. Bush, 88 Mo. 480; Chitty v. Railroad, 148 Mo. 64; Marty v. Rood, 144 Mo. 397; Field v. Railroad, 76 Mo. 614; Steinberg v. Insurance Company, 49 Mo.App. 255. A court of equity can set aside a deed when procured by fraud or undue influence, but the fraud or undue influence must be charged in the petition, and not only charged, but proved as alleged and charged. Taylor v. Crockett, 123 Mo. 300; Rogers v. Ramey, 137 Mo. 598; Cox v. Esteb, 68 Mo. 110; Turner v. Turner, 44 Mo. 535. There is no issue of undue influence, mental incapacity, or duress in this case. None of these is pleaded. And the burden of proof is on the grantor to prove the particular fraud alleged in the petition. Brown v. Fickle, 135 Mo. 405; Jackson v. Wood, 88 Mo. 76; Kehoe v. Taylor, 31 Mo.App. 588; Clough v. Holden, 115 Mo. 336. And the evidence to sustain the charge of fraud should be clear and unequivocal. There should be no reasonable doubt as to the facts relied on. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Worley v. Dryden, 57 Mo. 226; Brown v. Foster, 112 Mo. 297. If one has love and affection for another growing out of kindred relation, such party may urge and receive a gift of property and the law will not say that it was obtained by undue influence. Thompson v. Ish, 99 Mo. 160; Jackson v. Hardin, 83 Mo. 175; Meyers v. Hauger, 98 Mo. 433. Fraud, when applied to the acquisition of property, usually means a deception practiced on another, whereby he is induced to part with his property or surrender some right therein. Thompson v. Cohen, 127 Mo. 215; Ordway v. Ins. Co., 35 Mo.App. 426. While actual fraud is claimed in the petition, there was no evidence of any fraud. Where it is sought to set aside an instrument on the ground of fraudulent representations, the court must be satisfied from the clearest evidence that the fraudulent representations were made, and made with intent to mislead, and made under such circumstances as to show that the contract was founded on them. Wannel v. Kem, 57 Mo. 150; Bailey v. Schmack, 61 Mo. 213; Dunn v. White, 63 Mo. 181. There must be fraud as distinguished from mere mistake. A court of equity will not relieve against a mistake of law. Anderson v. McPike, 86 Mo. 293; Joliffe v. Collins, 21 Mo. 338; Pomeroy's Equity, 843; Paine v. Jones, 75 N.Y. 593; Price v. Estell, 87 Mo. 378. (6) The consideration for the deed was ample. Cutts v. Young, 147 Mo. 587; Keithley v. Keithley, 85 Mo. 217; Pennington v. Stanton, 125 Mo. 658; Hatcher v. Hatcher, 139 Mo. 614. The whole transaction was fair and equitable and should be upheld. McKinney v. Hensley, 74 Mo. 217; Hatcher v. Hatcher, 139 Mo. 614.
John G. Schaich, Jr., and Wallace & Wallace for respondent.
(1) The court had jurisdiction to determine the validity of the deed in question. The appellant, William Arn, set up this deed and claimed under it in his answer, and his codefendant sought by her answer to have it set aside. The validity and effect of the deed was an issue in the case, and the court was possessed of the whole case and had jurisdiction to pass on it. Hamilton v. Armstrong, 120 Mo. 598; Thompson v. Holden, 117 Mo. 118; Holloway v. Holloway, 97 Mo. 639; Savings Inst. v. Collonious, 63 Mo. 290; Spitts v. Wells, 18 Mo. 468; Stuart v. Caldwell, 54 Mo. 536; 17 Am. and Eng. Ency. Law (1 Ed.), 739. "An action for partition may be united with a bill to set aside and cancel deeds to the property." Hamilton v. Armstrong, 120 Mo. 597; Thompson v. Holden, 117 Mo. 126. The partition suit under our practice is both a legal and an equitable action. Holloway v. Holloway, 97 Mo. 639; Savings Inst. v. Collonious, 63 Mo. 290; Spitts v. Wells, 18 Mo. 468; Stuart v. Caldwell, 54 Mo. 536; 17 Am. and Eng. Ency. Law (1 Ed.), 739. (2) The sole contention of the defendant, William Arn, upon the merits of the case is that in her answer Menia Arn seeks to avoid the deed upon the ground that it was procured by fraudulent representations upon the part of William Arn as to the contents, nature and legal effect of the instrument, and that William represented to her that it was a lease of the farm during her life and she signed it, believing that it was such an instrument and not knowing that it was a deed conveying the fee simple title; and that the evidence does not sustain the case thus stated. It should be borne in mind that William in his answer first sets up and relies upon the deed, claiming to have acquired title thereunder from his mother since the commencement of this suit, and makes the deed part of his answer in the case. This pleading and the deed itself show the confidential relation between the parties -- that of mother and son -- and the deed (prepared by William) stating that it was made "in consideration of the care, kindness and affection of my son, William Arn, in providing for me, the said Menia Arn, and managing my estate up to this time." It was in answer to this pleading that Menia Arn set up the fraud. Under these circumstances the burden was upon William to prove that there was no advantage taken; that there was no unfairness; that there was an adequate consideration; and that the fullest explanations were made to his mother as to the nature and contents of the instrument; and not upon the mother to prove a case of fraud, as in case of parties dealing at arm's length. Ilgenfritz v. Ilgenfritz, 116 Mo. 438. That there were relations of confidence and trust existing between the mother and son is clearly shown by the deed itself, which William incorporated in his answer, for it is upon the express consideration of William's kindness and affection and the fact that he had managed her estate up to this time. The law relating to a deed made between parties sustaining the relation above shown is well settled in this State. Cadwallader v. West, 48 Mo. 483; Stout v. Goss, 62 Mo. 226; Garvin v. Williams, 44 Mo. 465; Rankin v. Patton, 65 Mo. 378; Bradshaw v. Yates, 67 Mo. 221; Ilgenfritz v. Ilgenfritz, 116 Mo. 436; Rothenbarger v. Rothenbarger, 111 Mo. 1; Ryan v. Ryan, 174 Mo. 280. (3) Mrs. Arn's weak mental condition is another fact so obvious and apparent that the court can not help from observing it and taking it into consideration. Of course, Mrs. Arn did not plead her own infirmity of mind; that would have been a proper plea if her heir or guardian had brought a proceeding to avoid the deed; but such a plea on her part would have been improper and a just ground of suspicion as to her good faith in the suit. But no one can read her testimony without being impressed with the fact and it is a circumstance which can not be eliminated from the case. Cadwallader v. West, 48 Mo. 483.
In the year 1880 Cornelius Arn died leaving an eighty-acre farm in Jackson county, Missouri. By his last will he devised all of his property, real and personal, to his wife, Menia Arn, "to have and to use for the benefit of herself and my children as hereinafter provided." The will contains but one other clause, which appoints Ferdinand Arn, a brother, "as executor of this my will and also guardian for my children, who shall hold, use, and control all of my property and effects as stated in this will." Six children -- four daughters and two sons -- survived the father; one son died before he became of age.
After all the children had become of full age, the widow, Menia Arn, and the four daughters brought suit for the partition of the eighty acres, making William Arn, the only son defendant. The suit was brought on the theory that the mother, Menia Arn, and her children, by virtue of the will, became tenants in common. The suit was commenced in March, 1901. At that date ...
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