Wilkerson v. Wann

• Citation: 16 S.W.2d 72
• Decision Date: 10 April 1929
• Docket Number: No. 26825.,26825.
• Parties: JAMES M. WILKERSON, Appellant, v. HOMER B. WANN.
• Court: United States State Supreme Court of Missouri

16 S.W.2d 72

JAMES M. WILKERSON, Appellant, v. HOMER B. WANN.

No. 26825.

Supreme Court of Missouri, Division Two.

April 10, 1929.

Appeal from Greene Circuit Court. — Hon. Charles L. Henson, Special Judge.

REVERSED AND REMANDED (with directions).

Roscoe C. Patterson, Mason & Page and Farrington & Curtis for appellant.

(1) Courts of equity will not wait for total incapacity to act in cancelling deeds of old people who have deeded away all they own without aid of independent advise. Feebleness of mind is held sufficient. Allore v. Jewell, 94 U.S. 506. And this especially in gifts. Morris v. Morris, 4 S.W. (2d) 459; Jones v. Belshe, 238 Mo. 524; Martin v. Baker, 135 Mo. 495; McCune v. Lewis, 72 Mo. 314; Vining v. Ramage, 3 S.W. (2d) 712; Floyd v. Floyd, 11 Fed. (2d) 841. Courts of equity must take each case presented and view the acts of the parties to a transaction, consider this age, business ability, mental and physical capacity, ascertain the net results of their acts, and if such composite picture forces a conclusion that an unfair advantage has been taken, equity will find a substantial relief. Jones v. Belshe, 238 Mo. 524; Smith v. Perle, 281 S.W. 431; Groff v. Langdon, 239 S.W. 1087; Shanklin v. Ward, 236 S.W. 64; Stockton v. Minkin, 276 S.W. 374. (2) Where the grantee in a voluntary deed prepared the same knowing that the grantor was seventy-nine years old and infirm in mind and sick in body, and without advice, intended to convey the property subject to the grantor's life estate and knowingly failed to make such deed contain the intended reservation, the grantee's act will give equitable ground to cancel the deed in a suit brought for that purpose by the grantor. The most charitable view of such transaction is to hold that the grantee is guilty of constructive fraud or legal fraud, making the deed void and hence no executed gift. Summers v. Coleman, 80 Mo. 488; Yosti v. Laughran, 49 Mo. 594; Bishop v. Seal, 87 Mo. App. 256; Caspari v. Church, 82 Mo. 649; Derby v. Donahoe, 208 Mo. 684; Heimeyer v. Heimeyer, 259 Mo. 515; Jackson v. Miller, 288 Mo. 232; 18 C.J. 225, sec. 144d; Clarkson v. Creely, 40 Mo. 114; Steffer v. Staht (Mo.), 273 S.W. 121; Young v. Coleman, 43 Mo. 179; Cassidy v. Metcalf, 66 Mo. 519; Griffith v. Townley, 69 Mo. 13; Bresnehan v. Price, 57 Mo. 423. (3) The doctrine is well settled in courts of other states that "a voluntary conveyance which does not contain a provision to effect the understanding of the parties that he was to retain the use and benefit of the property during his life will be set aside at the instance of the grantor." White v. White, 60 N.J. Eq. 104; Tygar v. Cook, 77 N.J. Eq. 300; Stevens v. Show, 66 N.J. Eq. 116; Coffey v. Sullivan, 63 N.J. Eq. 296; Note on Voluntary Instruments, 28 L.R.A. (N.S.) 867; Collins v. Collins, 63 N.J. Eq. 602; Grant v. Baird, 61 N.J. Eq. 389; Dunn v. Dunn, 151 App. Div. 800; Light v. Light, 221 Pa. 136; Gwyer v. Spaulding (Neb.), 50 N.W. 681; Meeks v. Stillwell (Ohio), 44 N.E. 267; Else v. Kennedy, 25 N.W. (Iowa) 290; McGraw v. Muma, 129 N.W. (Mich.) 20; Day v. Day, 84 N.C. 408; Wilson v. Land Co., 77 N.C. 445. (4) A court of equity will not reform a voluntary conveyance at the instance of the grantee. Only deeds based on a valuable or meritorious consideration will move the court to reform a deed. Mudd v. Dillon, 166 Mo. 110; Partridge v. Partridge, 220 Mo. 321; Hutsell v. Crews, 138 Mo. 1; Crawley v. Crafton, 193 Mo. 421. (5) The only way to complete a gift of land is by the delivery of a deed thereto complete and absolute. Coles v. Belford, 289 Mo. 97; Hall v. Hall, 107 Mo. 101. Nothing must be left to be done in the future. Thomas v. Thomas, 107 Mo. 463; 28 C.J. 626; Albrecht v. Slater, 233 S.W. 8; Coles v. Belford, 232 S.W. 728. (6) "He who attempts to establish title to property through a gift inter vivos as against the estate of a decedent takes upon himself a heavy burden which he must support by evidence of great probative force which clearly establishes every element of a valid gift." Re O'Connell, 33 App. Div. 483; quoted with approval in McClure v. Daniels, 225 S.W. 1020; Southern Institute v. Marsh, 15 Fed. (N.S.) 347. A gift must be absolute and complete. Harris Banking Co. v. Miller, 190 Mo. 640; Spencer v. Vance, 57 Mo. 427; Thomas v. Thomas, 107 Mo. 463; In re Soulard Estate, 141 Mo. 642.

Barbour & McDavid and Herman Pufahl for respondent.

(1) The appellant claims that the deed is void because there was no reservation therein providing for the payment of the rents and profits arising from the property to the grantor, during his lifetime. The petition raises no such issue. It is not claimed therein that there was an agreement that such a provision should be written into the deed. No such issue was presented to the trial court. There is no evidence that any such provision should be written in the deed. The cases cited by appellant in support of the proposition, all deal with facts where there was an agreement between the parties to the instrument that it should, when written, contain a specific provision whereby the rents and profits or a life estate should be reserved to the grantor, and the deeds in such cases, if cancelled, were cancelled because they did not speak the agreement made between the parties, and that the omission was caused by the grantee who failed to write into the deed that provision which he had agreed to put therein. No such issue arises in this case, either in the pleadings, or in the evidence. In this case the evidence shows that Wilkerson dictated the form of the deed; that there had been, and was then in existence an agreement between the two men that Wann should collect the rents, and should turn them over to Wilkerson, which was a personal agreement between the two men, but which was never mentioned nor agreed upon nor discussed between them as being a part of the deed to be written, but constituted a separate and independent agreement respecting that particular matter. (2) The plaintiff seeks the cancellation of an executed contract, which is an exercise of the most extraordinary power of a court of equity. Such power will not be exercised except in a clear case, and on strong and convincing testimony. Jackson v. Wood, 88 Mo. 76; Meyers v. Koehring, 129 Mo. 25; Cohron v. Polk, 252 Mo. 261; Cullinane v. Grant, 294 Mo. 436; Bragg v. Packing Co., 205 Mo. App. 600; Bross v. Rodgers, 187 S.W. 38; Spradling v. Spradling, 222 S.W. 814; Bragg v. Packing Co., 226 S.W. 1013; Nichols v. Wimer, 230 S.W. 344; Guaranty Ins. Co. v. Frumson, 236 S.W. 316; Palmer v. Palmer, 238 S.W. 423. A deed fully executed, even though it be a deed of gift, if valid at all, cannot be revoked unless adequate reason for such revocation is shown by the evidence. Cullinane v. Grant, 294 Mo. 436; Myers v. Koehring, 129 Mo. 25. The burden of adducing evidence of that degree and cogency rested upon the appellants. It has not been discharged in this case. Bross v. Rodgers, 187 S.W. 39. See also Palmer v. Palmer, 238 S.W. 424; Doherty v. Noble, 138 Mo. 25. (3) Appellant seeks to set aside this deed on the grounds of undue influence, confidential relations, and lack of physical and mental strength sufficient to understand the nature of the transaction. In order to set aside an executed deed, on any of these grounds, or all of them, the evidence must be clear, cogent, convincing, and the burden of establishing the facts justifying such relief rests upon the party who seeks it. Hamilton v. Armstrong, 120 Mo. 598; Doherty v. Winslow, 138 Mo. 32; State v. McKenzie, 144 Mo. 48; Spurr v. Spurr, 285 Mo. 163; Lindsay v. Shaner, 291 Mo. 297; Canty v. Halpin, 294 Mo. 118; Cullinane v. Grant, 294 Mo. 423; Bross v. Rodgers, 187 S.W. 38; Smith v. Smith, 289 Mo. 405; Land v. Adams, 229 S.W. 158; Watt v. Loving, 240 S.W. 122; Silber v. Silber, 249 S.W. 390; Elzea v. Dunn, 249 S.W. 933, 297 Mo. 690; Forbes v. Winslow, 270 S.W. 331. (4) By requesting and receiving a deed of trust covering this property, to be executed by the grantee, the appellant thereby recognized the deed given by him as valid. Schafer v. Schafer, 190 S.W. 323. By having the tenants execute leases with Wann, not once, but several times, Wilkerson recognized the deed as a valid instrument which had passed the present legal title to Wann. Dr. Wilkerson testifies that he made the leases and sent them to Homer to sign as owner of the building. (5) A deed of gift requires no more mental strength on the part of the grantor than if it were a devise by will. Both stand upon the same foundation. Chadwell v. Reed, 198 Mo. 359; Richardson v. Smart, 152 Mo. 623; Jones v. Thomas, 218 Mo. 508.

DAVIS, C.

This is a suit in equity to cancel a deed to real estate. The chancellor nisi refused to decree cancellation, but entered a decree that the deed was a valid and binding conveyance, subject, however, to a life estate in plaintiff. Plaintiff, James M. Wilkerson, appealed from the decree and judgment. Lettie B. Wilkerson, his wife, also plaintiff, did not appeal.

The salient facts adduced in behalf of plaintiff sustain the finding that, prior to July 2, 1923, plaintiff held title to and owned in fee simple real estate situated in Greene county, described, to-wit: "All of Lot One (1) and twenty-seven feet or enough off the North Side of Lot Two (2) in John S. Waddill's Addition to the city of Springfield, Missouri, to make sixty-feet fronting on Boonville Street, otherwise described as follows: Beginning at the Northwest corner of Lot One, John W. Waddill's Addition, thence South along the East side of Boonville Street sixty feet, thence East eighty-four feet, thence North sixty feet, thence West eighty-four feet to said Northwest Corner of Lot One in John S. Waddill's Addition to the city of Springfield, Missouri."

On July 2, 1923, plaintiff, without any reservation, limitation, condition or exception therein, conveyed by warranty deed the aforesaid real estate to defendant. Plaintiff...