Summers v. Coleman

• Decision Date: 31 October 1883
• Citation: 80 Mo. 488
• Parties: SUMMERS v. COLEMAN et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

80 Mo. 488

SUMMERS

v.COLEMAN et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

Smith & Krauthoff and Louis Wagner with L. F. Wood and Thomas B. Wright for appellants.

There are mainly two points presented in this case for adjudication in this court. 1st, Can a conveyance of a bare possibility or an expectancy be upheld and enforced in equity. 2nd, If such a contract can be upheld and enforced in equity, are there any circumstances of fraud surrounding this transaction of a character to vitiate the contract. In equity contracts relating to expectancies, have long been upheld. Fonblanque's Eq., 170, 171, note E; Fry on Specific Perform., 496, 500; Cook v. Field, 15 Q. B. 460; Wiseman v. Roper, 1 Rep. in Ch. 154; Beckley v. Newland, 2 P. Wms. 182; Lewis v. Madison, 1 Munf. 303; Stover v. Eycleshimer, 3 Keyes 620; s. c., 46 Barb. 84; Field v. Mayor, 2 Seld. 179; Carleton v. Leighton, 3 Meriv. 671; Dodd v. Williams, 3 Mo. App. 278, 286. The consideration expressed in the deed, the love and affection respondent bore to her mother, is sufficient to uphold the deed. Wright v. Wright, 1 Ves. Sen. 411, 412; Bogy v. Shoab, 13 Mo. 365; R. S. 1879, § 3940. There are no circumstances of fraud connected with the execution of the deed of a character to vitiate it. Fraud will never be presumed, but must be clearly established by the proof. Story on Contracts, § 625; Story Eq. Jur., § 490; 3 Greenleaf Ev., § 254. The law will not assist one capable of taking care of his own interest, except in cases where he has been imposed upon by deceit, against which ordinary prudence could not protect him. Story Eq. Jurisp., § 237; Blatchford v. Christian, 1 Knapp R. 77; Forrester v. Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423. The plaintiff read the deed and knew the meaning of the words she was reading, or must be presumed to have understood them, which is the same in law. Brooms Legal Maxims, 252, 262, note 5, 276. The plaintiff's mistake, if made, was one of law, and she cannot claim relief. Pomeroy's Eq., § 843; Toops v. Snyder, 70 Ind. 554; Zane v. Cawley, 21 N. Y. Eq. 130; Paine v. Jones, 75 N. Y. 593; Nelson v. Davis, 40 Ind. 366; Lanning v. Carpenter, 48 N. Y. 408; 18 Cent. Law Jour. 8, note 2; Ib., 9, note 6; 17 Ib., 422. If the language of a deed is that intended to be used by the grantor, his mistake as to the legal effect of the language will afford no ground for relief in equity. Burt v. Wilson, 28 Cal. 632; McMurray v. St. Louis, etc., 33 Mo. 377 Hendrix v. Wright, 50 Mo. 310.

Cosgrove & Johnston with Rice & Walker for defendants in error.

The evidence shows that the deed from plaintiff to her mother was procured through fraud, and will be set aside. All contracts and conveyances, whereby benefit are secured by children to their parents, are objects of jealousy, and if not entered into with scrupulous good faith and reasonable under the circumstances, they will be set aside. Baker v. Bradley, 35 Eng. L. and Eq. Rep. 449; 1 Story's Eq. Jurisp., p. 292. There is a presumption of fraud in law from the confidential relation of the parties. Garvin v. Williams, 50 Mo. 206; Street v. Goss, 62 Mo. 226; Cocking v. Pratt, 1 Ves. 400; Slocum v. Marshall, 2 Wash. C. C. R. 397. It devolves on defendants to show the utmost good faith, and that the contract was a reasonable and provident one. Davis v. Duke, etc., 2 Swan. 436; Edwards v. Burt, 2 DeGex, Mac. & G. 55; Garvin v. Williams, 50 Mo. 206. The conveyance, by reason of its subject matter, was fraudulent in law. Boynton v. Hubbard, 7 Mass, 112; Chesterfield v. Jaussen, 1 Atkyns, top page 301. Fraudulent representations as to the legal effect and operation of a contract, are sufficient to avoid the same. 2 White & Tudor's Eq. Cases, pt. 1, 559, 567, and cases cited; Berry v. Whitney, 40 Mich. 65; Mitford's Eq., 149. Where the minds of the parties do not meet, and the conveyance does not xepress their intention, it should be set aside. Story's Eq. Jurisp., (9 Ed.) § 164; Lertensdorfer v. Delphy, 15 Mo. 160; Johnson v. Huston, 17 Mo. 58; Hook v. Craighead, 32 Mo. 405; Young v. Coleman, 43 Mo. 179; Cassiday v. Metcalf, 66 Mo. 519. Plaintiff's deed attempting to convey a mere possibility or hope of inheritance in the lifetime of her ancestor, is a nullity. Alvis v. Schlesing, 16 Reporter 780; Beard v. Griggs, 1 J. J. Marsh. (Ky.) 22; Nicoll v. Railroad Co., 12 N. Y. 121; Lamb v. Kamm, 1 Sawyer (U. S. C. C.) 238; Bayler v. Com.,40 Pa. St. 37; Dart v. Dart, 2 Conn. 250; Jones v. Roe, 3 D. & E. 42; Boynton v. Hubbard, 7 Mass. 112; Kercheval v. Triplett, 1 J. J. Marsh. (Ky.) 22; 1 P. Wms., 312, 313; 3 Ib., 293; 1 Wils. 323; 2 Vesey 144. The conversations had with Virginia Summers, and her declarations as to the purpose and effect of the deed prior to, at the time of and subsequent to its execution, were competent; were a part of the res gestae. Thomas v. Wheeler, 47 Mo. 363; Darrett v. Donnelly, 38 Mo. 492; Potter v. McDowell, 31 Mo. 62; Gamble v. Johnson, 9 Mo. 605.

EWING, C.

On the 13th day of December, 1877, the plaintiff filed in the Cooper county circuit court a petition stating her cause of action as follows:

That Lewis A. Summers died at Cooper county on the 4th day of May, 1877, intestate, seized of certain real estate situate in said county, and also of personal property valued at $10,000, leaving the plaintiff as his only heir at law and legal representative. Plaintiff was the daughter and only child of John Fenton Summers and Virginia Summers, and John Fenton Summers was the only son and child of Lewis A. Summers. John Fenton Summers died intestate, in the year 1857, leaving plaintiff and his widow Virginia Summers his only representatives and heirs at law. Virginia Summers died testate at Cooper county, December 1st, 1876.

In the year 1873, and prior and subsequent to that time, the plaintiff resided at Ottumwa, Iowa, and for some time before and a long time after that time, plaintiff's mother, Virginia Summers, resided there also with her daughter, the plaintiff. During that time, and while Lewis A. Summers was yet living, the said Virginia Summers being possessed of little or no estate, requested the plaintiff to convey to her an undivided half interest in the estate of her grandfather, said Lewis A. Summers, to which she would be entitled upon his death, for the period of the natural life of the said Virginia Summers only, and for her maintenance and support, and plaintiff consented to make such conveyance to her mother as a free and voluntary gift for the period of her natural life only. Afterward, about the 22nd day of November, 1873, said Virginia Summers went to the plaintiff at Ottumwa and took with her a deed already drawn up for plaintiff to sign, and represented to plaintiff that it was a deed from plaintiff to her of an undivided half interest in all the estate which plaintiff expected to inherit as the only heir of the said Lewis A. Summers, for the use and support of the said Virginia Summers during her natural life.

Plaintiff was reared by her mother, and had always lived with her until a short time prior to the date last mentioned, and entertained great love, respect and affection for her, and imposed in her implicit confidence, and so believing what her mother told her as to the nature and effect of the deed, viz.: That it was a deed to an undivided half interest in the estate of expectancy which was to descend to her from her grandfather Lewis A. Summers at his death, for the natural life of her mother for her support, plaintiff executed and delivered the deed to her mother, on the 22nd day of November, 1873.

The deed purported to convey, in consideration of $1, and love and affection, “the undivided half of all her interest in expectancy of whatsoever nature of, in and to all the real estate, personal property, moneys and effects which may hereafter descend to her by right of inheritance from Lewis A. Summers of Cooper county, Missouri, at the time of his death, whenever that may happen,” etc.

Plaintiff then alleged that this deed was obtained by the fraudulent acts and representations of her mother, Virginia Summers, with the necessary averments, and asked the deed to be held void, etc.

Upon proper pleading, on part of the defendants, to show that they claimed the property by virtue of the will of their Aunt Virginia Summers, the case was tried. The evidence is voluminous, much of it irrelevant; not a little incompetent, and which should have been excluded; much of it upon the question of the insanity of Lewis A. Summers, the grandfather of plaintiff. For the purposes of this decision, however, it will not be necessary to refer to any of the testimony upon the question of insanity. The substance of the evidence upon the question of the fraudulent representations on the part of plaintiff and defendant, is as follows:

The testimony, offered by the plaintiff, shows that plaintiff (the only child of John Fenton and Virginia Summers), was the only heir of Lewis A. Summers, who died in Cooper county, Missouri, intestate, May 4th, 1877, seized of real estate worth from $10,000 to $12,000, and some personal property. Virginia Summers died December 1st, 1876; the deed to her from plaintiff was recorded December 6th, 1876.

Mary Augusta Scott, testified: I am Mother Superior of the Convent of Visitation at Ottumwa, Iowa; I remember the execution of a deed from Mary E. Summers to Virginia Summers, in the parlor of the convent at Ottumwa, Iowa, sometime in the fall of 1873; I was present at the execution of the deed; Mrs. Virginia Summers brought the deed to the convent; the deed was executed a short time after she came; she brought it with her already drawn up; I had conversation with Virginia Summers on the morning of the day on which the deed was executed, and prior to its execution; Mrs. Summers said she had asked sister, Mary Rose (plaintiff) to give her...