Bowles v. Wathan

54 Mo. 261 | Mo. | 1873

Adams, Judge,

delivered the opinion of the court.

This was an action to set aside a deed, upon the alleged ground that it had been obtained by undue influence exercised by the defendant and his deceased wife over the mind of plaintiff. The answer denied all the material allegations of the petition. After a final hearing, the court dismissed the petition, and from this judgment the plaintiff has appealed to this court. The leading facts are about as follows: The plaintiff is eighty-three years old. In 1865 he made a partial distribution of his property. To each of his children he gave a deed for certain lands. The defendant’s wife was his pet child, and he made a deed of his homestead to her, but retained it in his possession, and intended to retain it till his death. The defendant lived in Kentucky, and married this pet child in 1866, and the morning after his marriage the plaintiff exhibited the deed he was holding for his wife, and told him they should have that property at his death, and he wanted them to come and take charge of the place and live on it. The defendant replied, that he had an engagement in Kentucky, which would detain them for one year, and that, as soon as his engagement expired, he would return with his wife, and at the expiration of his engagement he did return with his wife and took possession of the premises, and remained there making improvements, etc., for several years. After being there for some time, he and his wife learned that it was claimed that they had no more interest in the premises than the other children; and the defendant’s wife commenced importuning the plaintiff for the delivery of the deed. They threatened to remove from the place unless the deed should be delivered. The plaintiff resisted for some time, but finally compromised the'matter by delivering the deed and taking back from the defendant and his wife a deed for a part of the land for life, including the improvements. In the course of six months or so, the defendant’s wife had a child, and died in her confinement. .Before her confinement she made a will in favor of her husband and the child with which she was then enciente, devising the land covered by the deed in dispute to them. A short time after its birth, the child also died, leaving the defendant as the only heir at law. After the death of the child, the plaintiff complained that the deed in dispute was obtained by undue influence exercised over him by his daughter and her husband. At the time of the delivery of the deed, he shed tears, but had received a letter from one of his children, and the witness did not know, whether it was the delivery of the deed, or the news in the letter, that caused him to weep. These are the main facts as detailed in the evidence. It is manifest, from the evidence, that in delivering the deed the plaintiff was performing an act in advance, which he had all the time intended to have legal efficacy at his death. The defendant had taken possession of the premises and erected improvements and performed labor, under the assurance that the property should belong to his wife at the death of the plaintiff. If the defendant had remained on the place until the death of the plaintiff, under the contract which he had made with the plaintiff, he would have been legally entitled to a specific performance of the contract. (See Halsa vs. Halsa, 8 Mo., 303.) The contract in the case of Halsa vs. Halsa was in writing, but the only consideration was precisely the same as the one under review. When the purchase money is paid and possession taken and improvements made under, a verbal contract t.o convey land, such acts remove the case from the statute of frauds. In delivering the deed in question, the plaintiff was only doing in advance what the law would have compelled his heirs to do after his death. TJnder the circumstances, the death ot the wife would not have made any material difference. The child would have inherited the estate from its mother, and the defendant from his child. The evidence fails to show any undue influence in procuring, the deed. The plaintiff showed ample mental capacity. He resisted their importunities, and would not yield until he was provided for with a home for life. There seems to be no case for setting aside this deed on account of undue influence exerted by the defendant and his wife over the plaintiff.

Judgment affirmed.

The other judges concur.