Urban v. Nevins, 37265.

• Decision Date: 18 April 1941
• Docket Number: No. 37265.,37265.
• Citation: 149 S.W.2d 861
• Parties: URBAN et al. v. NEVINS et al.
• Court: Missouri Supreme Court

149 S.W.2d 861

URBAN et al. v. NEVINS et al.

No. 37265.

Supreme Court of Missouri, Division No. 1.

April 18, 1941.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

Action in equity by William Urban and Barbara Urban against Viola Murphy Nevins, Ada Butcher, as guardian of the person and estate of Viola Murphy Nevins, a person of unsound mind, and Martin Nevins, to have a conveyance in the form of a warranty deed declared to be in fact a mortgage and for its foreclosure, wherein Viola Murphy Nevins by her guardian sought cancellation of the deed on the ground of mental incompetency. From a decree in favor of plaintiff, Viola Murphy Nevins by her guardian appeals.

Decree affirmed.

Scott Peters, of Jefferson City, for appellant.

Russell T. Keyes, H. P. Lauf, John O. Bond, all of Jefferson City, for respondents.

HYDE, Commissioner.

This is an action in equity to declare a conveyance, in the form of a warranty deed, to be in fact a mortgage and for its foreclosure. Defendant Viola Murphy Nevins, by separate answer filed by her guardian, sought affirmative relief of cancellation of this warranty deed (and also a note to plaintiffs signed by her) on the ground that she was mentally incompetent to make a deed. Defendant Martin Nevins did not file answer but made default. The court found in favor of the competency of this defendant, on the date the deed was made, and entered the decree sought by plaintiffs, from which this defendant by her guardian has appealed.

Defendant Viola Murphy Nevins (hereinafter referred to as Mrs. Nevins) died during the pendency of this appeal and revival in the name of her administratrix (who is the same person as her guardian) has been ordered. (We hereinafter refer to the administratrix as defendant.) Defendant makes an assignment of error concerning striking out parts of the answer originally filed. No such ground was stated in the motion for new trial and, therefore, this matter is not preserved for appellate review.

Defendant's remaining assignments all amount to the contention that the court's finding as to the mental competency of Mrs. Nevins was erroneous and that we should make a contrary finding, and hold the deed (which conveyed her homestead) to plaintiffs to be void ab initio. While we are not bound by the trial chancellor's findings in an equity case, but consider the evidence in the record de novo, nevertheless we usually defer to his findings on conflicting oral evidence of witnesses who appeared before him, unless the evidence is overwhelmingly against them and we consider them clearly erroneous.

Plaintiffs' evidence showed that they loaned Mr. and Mrs. Nevins $930 in 1933 to pay off a deed of trust on the land where they lived, made in 1930, upon which this amount was due. The record title was then in the name of Mr. and Mrs. Nevins as an estate in entirety. (However, Mrs. Nevins inherited this land from her father.) The note secured by the trust deed was paid by plaintiffs' loan and the trust deed released. Plaintiff, instead of taking a new trust deed, took a warranty deed (which is the deed defendant seeks to have declared void ab initio) and gave Mr. and Mrs. Nevins a bond for a deed upon payment of the amount loaned within five years. It is this transaction they seek to have declared a mortgage and ask for foreclosure thereof including additional amounts for taxes and insurance paid and repairs made. The deed of trust paid off by plaintiffs' loan was made to pay off a $900 loan made by Warren Miller of California in 1928, which transaction was also made in the form of a warranty deed with bond for deed upon payment. Mr. Miller made his loan to pay off a prior loan of about this amount made to Mr. and Mrs. Nevins by the Bank of Centertown. When the Bank's loan was made or how it was secured does not appear. However, it was used to build a barn and other buildings on this land. Mr. and Mrs. Nevins were married in 1927. They were separated not long after plaintiffs' loan was made. Mrs. Nevins was 72 years old at the time of the trial.

It was shown that Mrs. Nevins did not have much education but could read and write; that "she has always been deaf or hard of hearing"; and that, prior to her marriage, she depended upon the advice of her brother, Lafe Murphy (who died before the trial and who was described as a good business man) before making any business transaction. It was also shown that in 1923, another brother, Minor Murphy, filed an information in the Probate Court of Cole County claiming that she was "of unsound mind and incapable of managing her affairs." There was a trial, in which both parties were represented by counsel, that resulted in a finding in favor of her sanity and costs were taxed against the complainant. Defendant Ada Butcher, a sister of Mrs. Nevins, was appointed her guardian on August 8, 1938,...