Turnmire v. Claybrook

• Decision Date: 04 June 1918
• Docket Number: No. 19399.,19399.
• Citation: 204 S.W. 178
• Parties: TURNMIRE et al. v. CLAYBROOK et al.
• Court: Missouri Supreme Court

204 S.W. 178

TURNMIRE et al. v. CLAYBROOK et al.

No. 19399.

Supreme Court of Missouri, Division No. 1.

June 4, 1918.

Appeal from Circuit Court, Adair County; Chas. D. Stewart, Judge.

Action by Sarah E. Turnmire and others against Samuel H. Claybrook and others. From judgment sustaining demurrer to plaintiffs' petition, plaintiffs appeal. Affirmed.

C. E. Murrell and Campbell & Ellison, all of Kirksville, for appellants. H. F. Millan and Higbee & Mills, all of Kirksville, for respondents.

GRAVES, J.

Action in equity to set aside two deeds. To plaintiffs' petition the defendants interposed a demurrer, which was sustained, and from a judgment appropriate to such action sustaining said demurrer, the plaintiffs have appealed. From the petition we gather the facts as follows: Plaintiffs and the defendants Samuel H. Claybrook and one William H. Claybrook are the children and sole heirs of Sarah E. Claybrook and James H. Claybrook, deceased. The father, James H. Claybrook, died January 23, 1903, and Sarah E., the mother, died October 10, 1913. The present suit was brought January 2, 1914. The petition avers that Sarah E. and James H. Claybrook owned 320 acres of land in Adair county, Mo., the record title to which was in the wife, Sarah E. Claybrook. The petition then thus proceeds:

"And plaintiffs say that on the 1st day of May, 1900, said Sarah E. Claybrook and her husband made and executed what purports to be a warranty deed purporting to convey to defendant Samuel H. Claybrook and William J. Claybrook all of said real estate, to wit, one deed purporting to convey to Samuel H. Claybrook the west half of the southeast quarter and the east half of the southwest quarter of said section 32, said deed to defendant Samuel H. Claybrook reciting a consideration of $1 and love and affection, and being recorded in recorder's office of Adair county, Mo., in Book 48 at page 374, on October 2, 1900, but plaintiffs say that said deeds were procured by defendant Samuel H. Claybrook by fraud and undue influence of said defendant Samuel H. Claybrook and William J. Claybrook, exercised by them upon and over said Sarah E. Claybrook and James Claybrook, and were without any consideration whatever; that said Sarah E. Claybrook and her husband, James H. Claybrook, were then both old and infirm and feeble in body and mind, and not capable of realizing the nature of said transaction, and so continued until their respective deaths, and that Samuel H. Claybrook was, and for a long time prior thereto had been, the trusted adviser and counselor of his said parents and their agents in the transaction of their business, and that they looked to and depended upon him for counsel and advice and for the management of their business, he being their confidential and trusted adviser and their agent in all their affairs; that said defendant for the purpose of procuring the said property and depriving these plaintiffs of any share in said estate by overpersuasion, and by taking advantage of the trust and confidence reposed in him as aforesaid, induced the said Sarah E. Claybrook and her said husband to make and execute said deeds; and that the same were not the free act and deed of the said Sarah E. Claybrook and the said James H. Claybrook, her husband; that said confidential relation continued to exist as aforesaid till the respective deaths of said James H. and Sarah E. Claybrook; that said Samuel H. Claybrook, for the purpose of carrying out said design of getting all of said property, and to continue said undue influence over his said parents and Keep them and each of them from becoming advised that they had made said purported conveyances and as to the nature and effect thereof and to prevent them from becoming informed and advised and taking any steps, or having action taken to set aside said conveyances and transactions, as would have been done had they realized or been advised as to the nature and effect thereof, kept his said parents, and after the death of said James H. kept said Sarah E. Claybrook, constantly with him, the said Samuel, and refused to permit and prevented them and her from seeing any of the plaintiffs or talking with them except in the presence of said Samuel, and said acts and conduct of defendant and his said undue influence so continued until the death of said James H. and Sarah Claybrook, who died without knowing or discovering the fraud so practiced upon them.

"Plaintiffs say that afterwards, on August 11, 1906, said Samuel H. Claybrook conveyed to defendant Charles E. Claybrook, who is his son, 80 acres of said 160 conveyed to him, to wit, the west half of the southeast quarter of said section 32, by deed which is recorded in the recorder's office of Adair county, Mo., in Book 65 at page 215, but that said deed and conveyances to said Charles E. Claybrook were taken and received by him with full knowledge of all the facts hereinbefore stated and with full knowledge that his said father did not have title to same."

Defendant Mills and Dockery are made defendants because of two deeds of trusts given by defendant Chas. E. Claybrook and wife to Mills as trustee for Dockery. These it is sought to have declared liens on the interest of Samuel H. Claybrook, the prayer for relief reading thus:

"Wherefore plaintiffs pray that said deed to the defendant Samuel H. Claybrook and said deed from said defendant to said Charles Claybrook be canceled, set aside, and for naught held; that said deeds of trust given by Charles H. Claybrook be declared liens against the interest of Samuel H. Claybrook as heir of Sarah E. Claybrook in said described real estate, and that, if said interest of Samuel H. Claybrook as heir is not sufficient to pay same, the residue of same be charged against Samuel H. Claybrook; that plaintiffs be adjudged the owners of an undivided one-fifth each in and to said real estate; and for all further and proper relief."

The demurrer which the court sustained is bottomed upon the following two grounds, as staked therein:

"Because the face of said petition shows that the cause of action therein stated did not accrue within ten years next before the commencement of this action.

"Because the face of said amended petition shows that the deed sought to be set aside was executed May 1, 1900; that Sarah E. Claybrook was at that time a married woman; that her husband, James H. Claybrook, died January 28, 1903; and that Sarah E. Claybrook died October 10, 1913, and said cause of action did not accrue within ten years next before the death of said Sarah E. Claybrook, and is barred by the statute of limitations."

This states the case.

I. It is urged by respondents that, excluding a consideration of the facts bearing upon the statute of limitation, the petition fails to state a cause of action. This on the theory that the allegations as...