Wallace v. Brown

• Decision Date: 12 November 1942
• Docket Number: No. 37698.,37698.
• Parties: WALLACE et al. v. BROWN.
• Court: Missouri Supreme Court

165 S.W.2d 408

WALLACE et al. v. BROWN.

No. 37698.

Supreme Court of Missouri, Division No. 2.

November 12, 1942.

Appeal from Circuit Court, Jasper County, Division No. 2; Wilbur C. Owen, Judge.

Action by Mildred Wallace and others against Ella Z. Brown to cancel a deed and for a decree of title in themselves, wherein defendant filed answer and cross-complaint. Decree for defendant and plaintiffs appeal.

Affirmed.

William H. Burden and Emerson Foulke, both of Joplin, for appellants.

R. A. Mooneyham, of Carthage, for respondent.

BOHLING, Commissioner.

Mildred Wallace, Thelma Norsworthy, Lula Sage, children, and Clarance Hicks, grandson of James W. Wallace, deceased, seek to cancel a warranty deed from Mr. Wallace to Mrs. Ella Z. Brown conveying lots 65 to 70, George F. Davis' Addition, Sarcoxie, Jasper county, Missouri, a decree of title in themselves, and other relief. Mrs. Brown filed an answer and cross-complaint, asking a decree of title in herself. The answer to the cross-complaint was a general denial. The decree was in favor of Mrs. Brown, and the heirs appealed.

Appellants' sole assignment of error is that appellants were entitled to the decree under the evidence. Appellants' points, supported by citation of authority, are to the following effect: 1. Undue influence may be inferred from facts and circumstances adduced in evidence and the burden is on a fiduciary grantee to show there was no undue influence. 2. A conveyance by one unable to understand the nature and consequences of his acts is void. And, 3, when coupled with the exercise of an undue influence or mental incapacity, a failure of consideration readily warrants the rescission of an instrument. The issues are thus restricted. Scott v. Missouri Pac. Rd. Co., 333 Mo. 374, 389[14], 62 S.W.2d 834, 840 [18].

The abstract sets out appellants' exhibits, but is in narrative form, with the subject matter of respondent's exhibits briefly referred to. Their detail might have been helpful. A statement of all details in evidence would unduly extend this opinion. We shall restrict our narration to the determinative facts. They are sufficient to preclude our overturning the chancellor's findings.

Margaret Wallace and James W. Wallace were husband and wife. Margaret Wallace and respondent were half-sisters. They were not on friendly terms during the latter part of Mrs. Wallace's life. Mrs. Wallace died in 1929. At the time of her death the real estate stood in the names of Mildred Wallace Blackburn and Walter Blackburn, an estate by the entirety. Among the assets of Mrs. Wallace's estate was a $500 note of Mr. and Mrs. Blackburn, secured by a deed of trust on the real estate, which became the property of James W. Wallace in the course of the administration. James W. Wallace lived with Mr. and Mrs. Blackburn on the property. Mr. Blackburn never paid the $500 note but had possession of it and the deed of trust. Respondent operated a farm near Wyandotte, Oklahoma, her husband having died in 1918. There was no enmity between respondent and Mr. Wallace. Mr. Wallace wrote respondent, asked her to come to Sarcoxie, and explained that Mr. Blackburn had never paid for the property but had possession of the papers. This was in 1936. Respondent and Mr. Wallace consulted an attorney. There was evidence from appellants' witnesses that Mr. Wallace considered Mr. Blackburn had not treated him right, had caused him trouble, and Wallace thought he "ought to kill him." In November, 1936, Mildred Blackburn obtained a divorce from Mr. Blackburn and the restoration of her maiden name; Mr. Blackburn conveyed his interest in the property to Mr. Wallace, and Mildred Wallace also conveyed her interest to her father. These deeds were recorded and mailed to Mrs. Brown. Some of appellants' witnesses gave testimony that respondent was instrumental in having Mildred secure the divorce. There was other evidence, equally cogent, that respondent took no part in the divorce proceedings, was of opinion Mildred should not secure a divorce, and that respondent's interest was to effect an adjustment of the property rights between the Blackburns and Mr. Wallace. Mildred continued to live with her father on the property. They were hard pressed financially. Respondent aided them from time to time, advancing money, furnishing groceries, et cetera. Mr. Wallace conveyed the real estate to respondent on August 22, 1938, by warranty deed, the recited consideration being $1 and other good and valuable considerations. A witness valued the property at $1,000 to $1,100. (The $500 Blackburn note had been appraised at $200 in Mrs. Wallace's estate.) Thereafter, respondent continued to assist Mr. Wallace and his daughter Mildred. There was testimony that her contributions and expenses incurred in connection therewith approximated $500. Mr. Wallace died intestate May 15, 1939, at the age of seventy-eight.

We find no direct evidence of undue influence by respondent upon Mr. Wallace. Appellants say a confidential relationship existed and the exercise of undue influence may be inferred from the surrounding circumstances. The credibility of the witnesses and the conflicts in the parol testimony...