Thierry v. Thierry

• Citation: 298 Mo. 25,249 S.W. 946
• Decision Date: 05 March 1923
• Docket Number: No. 23140.,23140.
• Parties: THIERRY v. THIERRY et ux.
• Court: United States State Supreme Court of Missouri

249 S.W. 946

298 Mo. 25

THIERRY v. THIERRY et ux.

No. 23140.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Motion for Rehearing Denied April 6, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Suit by Charles W. Thierry against Charles W. Thierry, Jr., and wife. From judgment for plaintiff, defendants appeal. Affirmed.

John B. Reno, of St. Louis, for appellants.

William F. Smith and Thomas E. Mulvihill, both of St. Louis, for respondent.

SMALL, C.

I This is a suit in equity filed October 17, 1919, by the plaintiff, Charles W. Thierry, against his son, Charles W. Thierry, Jr., and his son's wife, Helen M. Thierry, to set aside a deed made by the plaintiff and his wife purporting to convey to his said son, for a consideration of $1, seven lots of real estate in said city, and to invest the title thereto in the plaintiff. Said deed was dated July 27, 1910, and recorded February 28, 1911.

The amended petition uopn which the case was tried states: That at the time, of said conveyance the title to one piece of said real estate was in the name of plaintiff, and the remainder was carried in the name of plaintiff's wife, Annie, and was hold in trust by her for the plaintiff, who had earned and purchased and paid for said land with his own money, but had the title put in his wife's name as a matter of convenience; that the defendant Charles W. Thierry, Jr., who was a physician, a short time prior to the date of said deed, with the intent to defraud plaintiff, deceitfully suggested to plaintiff the advisability of plaintiff and his wife conveying to said defendant all of said real estate, which was all the property possessed by plaintiff, stating that plaintiff's wife, the mother of said defendant, was falling into mental and physical decline, and was liable to be incapacitated from signing deeds at any time, so that, if a buyer should be found for any of said property, a sale and transfer could not be made; that relying upon the advice of said defendant, said deed was executed to said defendant in the trust and upon the agreement that he would hold title to said real estate for the sole use, benefit, and convenience of plaintiff, and would convey such lands at the request and for the use and benefit of plaintiff, as he might from time to time direct, and that plaintiff should at all times retain the possession, use, and ownership of said land and receive the rents and pay the taxes and repairs and expenses incident thereto, and to manage and dispose of the property as his own; that said defendant paid no consideration whatever for said lands; that the plaintiff's wife's health did fail, and she was afterwards placed in an asylum, where she died October 21, 1920; that the plaintiff sold two of the tracts of ground conveyed by said deed, which had formerly stood in his wife's name (selling one in 1911 and the other in 1914), for $2,500, and conveyance thereof was made by defendants to the purchasers, plaintiff receiving the whole purchase price as agreed when said deed of July 27th was made; that the remaining five tracts mentioned in said deed of July 27, 1910, have not been sold or conveyed, and the record title still stands in the name of said defendant; that plaintiff is, and ever since said deed was made has been, in possession of all of said lands and received the rents, issues, and profits thereof, and paid all taxes and expenses thereof in pursuance and execution of the trust agreement, and understanding between the plaintiff and said defendant at the time said deed was made; that shortly before this suit was commenced, and while his wife was still alive, plaintiff requested the defendant to reconvey said unsold property to him, but said defendant refused to do so, in disregard of his agreement and duty, and in fraud of plaintiff's rights in the premises.

The answer nut the allegations of the petition in issue, and pleaded defect of parties, in that it appeared from the face of the petition that plaintiff's wife, Annie Thierry, was a necessary party; also pleaded that said conveyance was intended as a gift or advancement "by way of anticipation of defendant Charles W. Thierry, Jr.'s, share of the estate of his father and mother, and that at the time said conveyance was executed plaintiff had a quarrel or dispute with his daughter Annie, then and now the wife of one john Scherrer, and that then and there, in order to cut off said daughter Annie from any share in the enjoyment or participation of the properties described in the petition, he executed, together with his wife, the instrument of July 27, 1910, without solicitation, advice, or request on the part of the defendant, and as a gift by way of advancement, and in order to prevent his said daughter Annie from receiving any share of the estate."

For a further defense the answer states that the plaintiff induced his wife to join in said conveyance to said defendant In order to defraud plaintiff's wife out of her interest in said property. Further answering, defendants say, they have no knowledge "as to whether plaintiff paid the consideration for the purchase of property, the title to which was taken in his wife's name, but state that the same was given her absolutely as a gift," and "at the time of the purchase of the properties described in plaintiff's petition, the title to which was in. Annie Thierry, plaintiff was accustomed to become surety for various contractors," and, "in order to escape the enforcement of" liability on such bonds, "the title to the various properties described it plaintiff's petition was taken in the name of his wife, Annie Thierry."

The reply put the new matter In the answer in issue.

There were three witnesses who testified on behalf of the plaintiff—the plaintiff himself, his daughter Mrs. Annie Scherrer, and the plaintiff's brother, Theodore Thierry. Plaintiff also read in evidence the deposition of the defendant Charles W. Thierry, Jr.

The following facts and circumstances, without any serious dispute, seem to be established by the evidence: At the time of the trial plaintiff was over 78 years old, and had lived in St. Louis 70 years; born in Kentucky; had been in plumbing business and contracting business for 40 or, 50 years; was in business with his brother, Edward Thierry, from 1880 to 1912; in addition to the plumbing and contracting business, he for over 30 years was engaged in buying and selling real estate and building houses; during that time he handled from 25 to 30 pieces of real estate; that he purchased and paid for all of said real estate with his own money; that the title to a large number of the pieces of real estate pun chased and sold by him was by him placed in his wife's name, including six of the seven pieces of property described in the petition; that the plaintiff always received and retained as his own the price for which any real estate was sold, and always collected and appropriated all the rents and income thereof, without accounting to his wife; his wife neither received nor claimed any; that he always paid the taxes and insurance and for the repairs on all of the property; that his wife never at any time claimed to own any of the property which stood in her name; that she always, without hesitating, at the request of her husband, signed or had her daughter, Mrs. Scherrer, sign for her, as she could write only in German, all deeds and other instruments relating to the selling and conveyance of the land which stood in her name; she made the deed in suit at the request of her husband; had no conversation with the son regarding it; that the buying and selling of real estate was part of her husband's business, and that she never attended to any of her husband's business whatever; she did nothing to earn any money; she only attended to her household duties; that she had no money whatever, except small slums (how much not shown) which she might have saved from the money her husband gave her for household expenses; that plaintiff and his wife were married in 1873; they had three children, Carrie and Annie (Mrs. Scherrer) and one son, the defendant Charles W. Thierry, Jr.; that he gave his, children a good education, educating the girls in a convent, and his son in the University of St. Louis, as well as in the Medical College of St. Louis, from which the son graduated in 1898, plaintiff paying all of the expenses. The daughter Annie, the youngest of the children, was married in 1906 to Mr. Scherrer. She and her husband lived at her father's house until the spring of 1910. They had been paying but $40 per month board after her marriage up to that time, when her father asked them to pay $60 a month, which they took as an invitation to leave, and Mr. and Mrs. Scherrer then moved away to another place, but Mrs. Scherrer returned from time to time to visit her father. The son, who was 43 years old at the time of the trial, married about the year 1906. He had lived at his father's house up to that time. He then left the paternal roof, because his parents were not pleased with his marriage. But he sent up relations with his parents, but did not visit them at their home until about April, 1910. We are also satisfied from the testimony that after the conveyance of July 27, 1910, the plaintiff remained in possession and continued to receive and appropriate and manage and control all the rents and profits of said real estate, the same as he had always done before. He sold two pieces of the property, one in 1911, and one in 1914, for which he received the whole consideration, which was about $2,500 for both pieces. The defendants executed a deed to the purchasers at the request of the plaintiff. Plaintiff also continued to pay all the taxes and make all the repairs, the same as he had always done before said deed was made. He also purchased and paid $200 for a single strip of land to add to one of the lots, and had deed made to his son, because the title to the lot was in...