Ulrich v. Zimmerman

• Decision Date: 01 July 1942
• Docket Number: 38013
• Parties: Augusta Ulrich, Amelia Beyer, Walter Werner, Ella Werner, Amanda McDaniel, Lona Whaley, John Whaley, Ida Brown, Christ Guenzler, Edward Guenzler, Wilhemena Guenzler, Lena Guenzler, Alice Guenzler, Arvil Guenzler, Archie Guenzler, Myrtle Guenzler, Melvin Guenzler, Virginia Wilson, Eula Bell Wilson, Belle Fisher, Albert Henderson, Mary C. Drinner, Walter D. Drinner, Archie W. Drinner, Jerome G. Drinner, Elroy L. Drinner, Alty Drinner Jones, Annie Drinner Gunn, Guy Frazier, Joe Frazier, Harvey Frazier, Jessie Frazier, Albert McDaniel, Edna McDaniel, Cora Ryan, Ray McDaniel, Lee McDaniel, and Daisy Fox, Plaintiffs-Respondents, v. Anton Zimmerman and Laura Zimmerman, his wife, Defendants-Appellants
• Court: Missouri Supreme Court

163 S.W.2d 567

349 Mo. 772

Augusta Ulrich, Amelia Beyer, Walter Werner, Ella Werner, Amanda McDaniel, Lona Whaley, John Whaley, Ida Brown, Christ Guenzler, Edward Guenzler, Wilhemena Guenzler, Lena Guenzler, Alice Guenzler, Arvil Guenzler, Archie Guenzler, Myrtle Guenzler, Melvin Guenzler, Virginia Wilson, Eula Bell Wilson, Belle Fisher, Albert Henderson, Mary C. Drinner, Walter D. Drinner, Archie W. Drinner, Jerome G. Drinner, Elroy L. Drinner, Alty Drinner Jones, Annie Drinner Gunn, Guy Frazier, Joe Frazier, Harvey Frazier, Jessie Frazier, Albert McDaniel, Edna McDaniel, Cora Ryan, Ray McDaniel, Lee McDaniel, and Daisy Fox, Plaintiffs-Respondents, v. Anton Zimmerman and Laura Zimmerman, his wife, Defendants-Appellants

No. 38013

Supreme Court of Missouri

July 1, 1942

Appeal from Jefferson Circuit Court; Hon. Taylor Smith Judge.

Reversed and remanded (with directions).

R E. Kleinschmidt for appellants.

(1) Even in an equity case, where trial is de novo and appellate court can render its decision regardless of erroneous rulings on the evidence, a mass of irrelevant matter tends to becloud the chancellor's mind and mar serenity of judgment, and may, in and of itself, compel a reversal of the decree rendered. Walther v. Null, 233 Mo. 104; Farmers & Merchants Bank v. Funk, 92 S.W.2d 587. (2) Equity case is heard de novo on appeal and Supreme Court passes on the weight of the evidence. The rule that deference will be given to the findings of the chancellor applies mainly in cases where there is conflicting verbal testimony involving credibility of witnesses who appeared before him, and when such findings are clearly against the weight of the evidence the judgment will be reversed. Shaw v. Butler, 78 S.W.2d 420; Lastofka v. Lastofka, 99 S.W.2d 46. (a) Supreme Court, in equity cases, has a distinct advantage over trial court in that it can view all the evidence in perspective from the printed record, and read, re-read, and retain before the eye and mind for a comparison the various parts of each witness' testimony and that of each witness with the others. Smith v. Lore, 29 S.W.2d 91. (3) In suit to cancel a deed, burden is on the plaintiff to show undue influence as well as mental incapacity. Reaves v Pierce, 26 S.W.2d 611. (a) Even where a fiduciary relationship is shown, the burden of proving undue influence continues to rest upon the contestant of the will or deed, the rule now being that a mere fiduciary relationship raises no presumption of undue influence. Loehr v. Starke, 56 S.W.2d 772; Shaw v. Butler, 78 S.W.2d 420; Larkin v. Larkin, 119 S.W.2d 351; Walter v. Alt, 152 S.W.2d 135. (4) In numerous cases where the evidence as to both mental incapacity and fraud or undue influence has been immeasurably stronger than in this one, the deeds have been upheld by this court. McCollum v. Watts, 5 S.W.2d 420; Reaves v. Pierce, 26 S.W.2d 611; Blackiston v. Russell, 44 S.W.2d 22; Fessler v. Fessler, 60 S.W.2d 17; Clark v. Skinner, 70 S.W.2d 1094; Shaw v. Butler, 78 S.W.2d 420; Lastofka v. Lastofka, 99 S.W.2d 46; Franklin v. Moss, 101 S.W.2d 711; Kingston v. Mitchell, 117 S.W.2d 226; Platt v. Platt, 123 S.W.2d 54; Lowery v. Goslin, 137 S.W.2d 555; Lynn v. Coates, 142 S.W.2d 1014. (5) A promise by even an insolvent grantee to support grantor is a sufficient consideration to support a deed. Anderson v. Gaines, 156 Mo. 664; Cutts v. Young, 147 Mo. 587. (6) Cancellation of a deed, especially one based on a valuable consideration and where suit is not filed until after death of the grantor, is exertion of equity court's most extraordinary power, which ought not be exercised except in a clear case. Lastofka v. Lastofka, 99 S.W.2d 46; Cohron v. Polk, 158 S.W. 603.

Matthes & Weier, James Booth and James L. Anding for respondents.

(1) In equity cases, notwithstanding altogether that this court has the unquestionable right to review and weigh anew the evidence, the usual practice is to follow the findings and judgment of the chancellor on disputed questions of fact. Morris v. Morris, 4 S.W.2d 459; Dimity v. Dimity, 62 S.W.2d 859; Manahan v. Manahan, 52 S.W.2d 825; Finley v. Williams, 29 S.W.2d 103; Vining v. Ramage, 3 S.W.2d 712. (2) A fiduciary relationship existed between the grantor and the grantees in the deed in question. Patton v. Shelton, 40 S.W.2d 706; Dimity v. Dimity, 62 S.W.2d 859; Heflin v. Fullington, 37 S.W.2d 931; Dingman v. Romine, 141 Mo. 466. (a) Undue influence need not be shown by direct proof, but may be inferred from the facts and circumstances in evidence. Manahan v. Manahan, 52 S.W.2d 825; Dimity v. Dimity, 62 S.W.2d 859; Hershey v. Horton, 15 S.W.2d 801; Fowler v. Fowler, 2 S.W.2d 707; Massey v. Young, 73 Mo. 260. (b) Where the grantees stand in a fiduciary relationship to grantor, and were active in causing the execution of the deed to themselves, a presumption arises that the deed was obtained by the exercise of undue influence. Pulitzer v. Chapman, 85 S.W.2d 400. (3) Under the pleadings and evidence in this case, the plaintiffs were entitled to a finding and decree in their favor. Dingman v. Romine, 141 Mo. 466; Martin v. Baker, 135 Mo. 495; Ennis v. Burnham, 159 Mo. 494; Hurley v. Kennally, 206 Mo. 282; Jones v. Belshe, 238 Mo. 524; Cook v. Higgins, 290 Mo. 402; Kroening v. Goehri, 20 S.W. 661; Morris v. Morris, 4 S.W.2d 459; Hershey v. Horton, 15 S.W.2d 801; Manahan v. Manahan, 52 S.W.2d 825; Stone v. Hohmann, 146 S.W.2d 551; Heflin v. Fullington, 37 S.W.2d 931; Soureal v. Wisner, 13 S.W.2d 548. (4) The answers to interrogatories made by appellants were properly received in evidence as admissions. 22 C. J., sec. 389, p. 342; Federal Surety Co. v. City of Staunton, 29 F.2d 9; Gay v. Rogers, 109 Ala. 624, 20 So. 37; Sizer v. Melton, 129 Ga. 143, 58 S.E. 1055; Dowzelot v. Rawlings, 58 Mo. 75. (a) A wide range of evidence is admissible on an issue of fraud and undue influence. Johnson v. Johnson, 216 S.W. 913; 26 C. J. S., sec. 200 (c), p. 624; Fairbank v. Fairbank, 92 Kan. 45, 139 P. 1011.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action in equity to set aside a warranty deed, dated June 20, 1939, executed by Edward McDaniel (now deceased) to defendants, and purporting to convey (subject to certain conditions and a life estate in the grantor) 256 acres of land in Jefferson County. Plaintiffs, some thirty-eight collateral heirs of the deceased, charge that the grantor lacked mental capacity to make the deed and that it was procured by undue influence of the grantees. The trial court found for plaintiffs and defendants have appealed.

Edward McDaniel (hereinafter referred to as deceased) was a single person and resided on the described real estate. A part of it had been deeded to him by his parents (in 1935) and the balance was inherited from his father. His father died April 15, 1938, his mother died May 27, 1939, and deceased died September 30, 1939, at the age of about 51 years. Deceased was the only child of his parents and he died intestate, leaving only collateral heirs. The farm in question was improved with a three-room house, a barn and machine shed and, according to the one witness who would express an opinion on its value, was worth about $ 6000.

For more than twenty-five years deceased had suffered with some sort of nervous trouble which resulted in a palsied condition. He was nervous, couldn't hold his head still, trembled, jerked and shook all over. He required assistance in eating, drinking and smoking. After 1929 he was unable to walk. His limbs were atrophied and semiparalyzed, so that he was unable to use crutches, but "he would scoot around on the floor by the use of his arms and hands." According to Dr. A. L. Hertel, deceased was suffering from carcinoma of the liver and anterior poliomelitis or degeneration of the posterior cord of the spinal column, both progressive diseases which grew steadily worse. There was no connection between the two diseases. He also suffered from ascites or fluid in the abdominal cavity, caused by carcinoma of the liver, and had to be "tapped" occasionally. Dr. John F. Roesser described deceased's trouble as inflammation of the kidney, "nephritis" or Bright's disease, which caused his feet to swell and later caused his death. He did not treat deceased for his nervous condition and found nothing wrong with the spine or liver. According to Dr. Martin Dalton, deceased suffered from a nervous or palsied condition and carcinoma (cancer) of the liver which caused abdominal dropsy. By reason of his nervous affliction, deceased was unable to talk plainly. He talked like a tongue-tied person and would repeat words, or there would be delay between words. Persons who were well acquainted with him had no difficulty understanding him, as "he could make himself understood to anybody used to him." Witnesses described his general physical condition as "awful bad," "pretty bad," "pitiful," "critical," "helpless" or the worst they "had ever seen a living man." On the other hand, many of these same witnesses said he was "mentally all right;" and that he had a sound mind and was mentally able to transact his own business.

His father and mother had taken care of him for many years. After the mother died an uncle stayed with deceased about a week, and then Ray McDaniel, one of the plaintiffs, and Hattie, his wife, both cousins of deceased (who had rented part of the farm from him), looked after him for about three weeks. Deceased then sent for defendants and made some oral arrangements with them to come and take care of him. On the eleventh day after the defendants came to live with deceased, the deed in question was executed.

The deed, upon an ordinary warranty deed form, recited a consideration "of $ 1.00 and covenants and agreements hereincontained." The grantor...