208 Mo. 684 | Mo. | 1907
This cause is now pending in this court by appeal on the part of the plaintiff from a judgment of the circuit court of the city of St. Louis dismissing her bill in equity and denying her the relief sought by such bill.
It is not essential to an understanding of the nature and character of this case to burden the opinion with a reproduction of the pleadings which present the issues upon which it was tried. It will suffice to say
In October, 1904, this cause came on for trial of the issues presented in the pleadings. The trial as indicated from the issues presented, involved the investigation of a conveyance charged to have been fraudulently obtained and procured, and upon questions of that character great latitude is allowed in making the proof; therefore, the testimony as detailed by the witnesses, as disclosed by the record, is quite voluminous. While we have read in detail all of the testimony developed at the trial, we do not think it is essential, and shall not undertake in a statement of this cause, to give anything like a detailed statement of the testimony of witnesses testifying in the cause. We shall be content with a brief statement of the facts developed at the trial which the testimony tended to prove. Upon some of the material facts involved in
The plaintiff in this case, Mrs. Honora Derby, is a daughter of Mrs. Kate Donahoe. Cornelius P. Donahoe was a son of Mrs. Kate Donahoe and a brother of the plaintiff in this action. Cornelius died August 31, 1900, leaving Mary A. Donahoe, his widow, who is the defendant in this cause. Cornelius P. Donahoe died seized of the property designated in the petition as the Montgomery street lot. Cornelius P. Dona-hoe left no children surviving him; it was, however, developed at the trial that Cornelius P. Donahoe and his wife, Mary A. Donahoe, now his widow and the defendant in this cause, in 1896 had in custody an orphan child named Bessie Williford. They procured this child from the Catholic Orphan Board. This child was, at the time they received it, three or four years old, and there was testimony tending to show that Cornelius P. Donahoe and his wife, the defendant in this cause, at the time they received the custody of the child, had to sign what Mrs. Mary A. Donahoe says they supposed was a deed of adoption, and she further states that she and her husband always supposed that they had legally adopted this child. There was testimony tending to show that the child continued in their custody and care as though it was their own and had been legally adopted, and Mrs. Mary A. Dona-hoe states that since the death of her husband she has retained the child in her custody and that it assumed the name of Donahoe and has been treated as her child and was recognized by the people generally as the child of Cornelius P. Donahoe and his wife. It is further shown by the evidence that in April, 1900, Mrs. Kate Donahoe, as heretofore stated the mother of this plaintiff, Mrs. Derby, and Cornelius P. Dona-hoe, the late husband of the defendant in this cause,
“Your petitioner states that she is the'widow of C. P. Donahoe, who died in this city August 31, 1900.
“That at the time of his decease there was on hand no grain, meat or provisions to sustain herself and their adopted child, Bessie Donahoe, aged eight years.
• “That petitioner, therefore, asks an allowance for one year from the estate in lieu of provisions not on hand.
‘ ‘ That in the opinion of petitioner the sum of three hundred dollars will be sufficient for this purpose. “State of Missouri, City of St. Louis, ss.
“Mary A. Donahoe, being duly sworn, on her oath says that the matters and facts set forth in the foregoing petition are true to the best of her knowledge, information and belief.
“Mary A. Donahoe.
“Sworn to and subscribed before me this 12tb day of September, 1900.
“C. Wm. Koenig, Clerk.
“Barney Seaman, Deputy Clerk.”
On September 14, 1900, all the parties again met at the home of Mrs. Kate Donahoe. The subject of the real estate involved in this controversy was discussed in a general way. Mrs. Derby, the plaintiff, at this meeting, executed a quitclaim deed, quitclaiming all interest in the Montgomery Street lot to the defendant, and the defendant executed a deed from her
There is an absence from the record of any disclosures which indicated that the plaintiff, Mrs. Derby, on September 14, 1900, at the time she executed her deed, had received any notice or information which would in any way tend to change her belief respecting the adoption of the child Bessie. The record further discloses the development of the fact at the trial, that, notwithstanding the defendant, Mary A. Donahoe and her attorney, Mr. E. C. Dodge, had discovered on the afternoon of the 6th of September, the next day after the first meeting on the 5th of September, that the child Bessie had not been adopted by Cornelius P.
The testimony on the part of the defendant tends to show that the meetings on the 5th of September and the 14th of September, were to arrange for an amicable settlement between the parties in accordance with the wishes of the mother, Mrs. Kate Donahoe, and that the execution of the various instruments heretofore referred to was in accord with the mother’s wishes and were voluntarily executed without any misrepresentations or fraud and was acquiesced in and consented to by all the parties concerned, and that Mr. Dodge, the attorney representing the defendant, on account of the suggestion of the mother, Mrs. Kate Donahoe, that she wanted the defendant, the wife of Cornelius, to have all of his property, and her daughter, Mrs. Derby, to have the property of the mother, was induced to suggest that the deed of April 28, 1900, conveying the St. Louis Avenue lot to Mrs. Derby, the plaintiff, and Cornelius P. Donahoe, not having been recorded, could be destroyed and then the arrangement as to the execution of the other conveyances could be proceeded with without difficulty.
While we have not undertaken to set out in detail
At the close of the testimony the cause was submitted and the court upon the testimony adduced de-> nied the the plaintiff the relief sought and dismissed her bill. A timely motion for new trial was filed and by the court overruled, and from the judgment rendered in this cause denying the- prayer of her petition and dismissing her bill the plaintiff in due time and proper form prosecuted her appeal-to this court, and the record is now before us for consideration.
OPINION
We have sufficiently indicated in-the statement of this cause the controlling facts developed at the trial upon which the case was submitted to the court. We shall not undertake to discuss any of the facts concerning which ' there is any conflict, but our conclusions will be predicated upon a state of facts which, as disclosed by the record, are practically uncontradicted.
It appears from the record that at the meeting of the parties concerned in this transaction at which the respective conveyances heretofore referred to in the statement were discussed, and at one of which the conveyance which is sought to be set aside in this proceeding was executed and delivered, the plaintiff, Mrs. Derby, a married woman, was without any counsel, not even her husband to consult or advise, respecting the conveyance she was about to execute. On the other hand, it was arranged, as is conceded in the statement of this cause by counsel for the .respondent, that Mr. E. C. Dodge, an attomey-at-law, was sent for respect
The foregoing facts as recited are disclosed by the
I.
It is not essential in order to entitle the plaintiff to the relief prayed for in her petition that it should appear that the defendant wilfully and intentionally perpetrated a fraud in the procuring of her conveyance which is sought to be set aside. Courts of equity in dealing with the subject of fraud in transactions between parties have long since fully recognized that there are certain acts that, when done wilfully and intentionally respecting a transaction between the parties, would constitute actual fraud, and that the omission to do certain things or the concealment of facts-which are material to the party with whom you are dealing, by which an undue advantage is taken of your adversary in the deal, would also constitute a fraud, not xipon the basis that the omissions or concealments were wilful and intentional, but predicated upon the ground that it operated as a fraud upon the party with whom you are dealing.
We have been unable to find anywhere a more concise definition of fraud than the one given by Mr. Kerr in his work on Fraud and Mistake, pages 42 and 43, where it is said that “fraud, in the contemplation of a court of equity, may be said to include properly all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another; or' by which an undue, unconscientious advantage is taken of another.”
Courts of equity do not hesitate to condemn the consummation of a transaction which has been brought' about by the commission of the wilful and intentional
In Bishop v. Seal, 87 Mo. App. 256, it was held that it was not essential in order to warrant a condemnation of a transaction by a court of equity that a wilful design to defraud plaintiff should be shown against the defendant, but if it is made to clearly appear that if plaintiff’s grievance is left unredressed it would operate as a fraud, notwithstanding a lack of intention upon defendant’s part, equitable relief should be granted, and the court said in that case, “In such cases . . . it is not a question of willful and designing fraud, but rather a question whether a fraud will result to plaintiff if she be put off without redress.”
Measured by the rules of equitable jurisprudence, as indicated in the announcement by the appellate courts of this State as well as by the text-writers upon the subject now under consideration, the plain proposition confronts us as to whether upon the undisputed facts
It is conceded that the defendant and her counsel,
The condition surrounding the plaintiff and defendant at the time of the execution of the conveyance which is sought to be set aside in this proceeding, may thus be summarized: The defendant was present with her counsel for the purpose of procuring a conveyance from plaintiff, Mrs. Derby, to her interest in the Montgomery Street lot. The defendant and her counsel knew that the plaintiff had a substantial interest in the property embraced in the deed involved in this proceeding. On the other hand, the plaintiff was ignorant respecting her rights and interests in said property. She was there without counsel and her ignorance upon the subject was largely due to the acts and conduct of defendant and her counsel. Their attitude in the administration of the estate in which the affidavit of defendant was filed, designating the heirship to the estate of Cornelius P. Donahoe, deceased, could have but one tendency, and that was to emphasize the correctness of the general understanding that Bessie had been legally adopted by Cornelius P. Donahoe and would inherit the property of which he died seized. To this, together with other facts and the failure of the defendant and
It has been expressly ruled by this court, and the principle has been sanctioned by eminent text-writers, that the concealment or suppression of a material fact respecting the interest of the opposing party in the deal, as in the case at bar, is equivalent to a positive assertion that the material fact did not exist. [Morley v. Harrah, 167 Mo. l. c. 74.]
The circumstances concerning this transaction confronting the plaintiff, Mrs. Derby, at the date of the execution of the quitclaim deed to defendant, was simply one where she was to execute a quitclaim deed to real estate in which she 'was then of the opinion that she had no interest to convey. It was certainly a very material fact for her consideration (of which the defendant and her counsel had full knowledge, and of which she was in entire ignorance), to know that she would, in fact, inherit one-half of the property designated as the Montgomery Street lot. It doubtless
Emphasizing the advantage of defendant over the plaintiff in this deal and the benefits reaped thereby, our attention is directed to the manifest difference in the value of the property rights exchanged in this deal, or in other words, the gross inadequacy of consideration for the property conveyed by the plaintiff. There having been no election by defendant, the widow of Cornelius P. Donahoe, respecting the Montgomery Street lot, and he having died without issue, upon his-death this property descended to his mother Mrs. Kate Donahoe, and the plaintiff, his sister, subject to the homestead and dower rights of the widow. The plaintiff, therefore, inherited a one-half interest in the Montgomery Street property, which was conveyed to the defendant by the deed involved in this suit. The half interest of plaintiff in this property which she conveyed to the defendant, was reasonably worth, according to the tendency of the proof, about two thousand or twenty-five hundred dollars. The defendant executed her deed to the plaintiff conveying her interest in the St. Louis Avenue lot. The facts developed at the trial show that this lot was owned by Mrs. Kate Dona-hoe, the mother, and some time prior to the date of the conveyances by plaintiff and defendant, that is, on April 28th, 1900, she executed and delivered to Cornelius P. Donahoe, her deed conveying this lot to her son Cornelius and her daughter, the plaintiff herein, Mrs. Derby. It was this deed that was torn up on September 14, 1900', at the time plaintiff executed the deed in suit. The conveyance which was destroyed is not involved in this proceeding, except as evidence tending to show the interest of plaintiff as well as the interest of defendant, which was embraced in her deed to plain
Now while inadequacy of consideration is insufficient to warrant a court of equity in annulling a sale of real estate, yet in connection with other facts it may be considered in determining tire question as to whether an actual fraud has been committed upon the rights of an individual, or. whether the conduct or acts of the parties have been of such a nature and character as are calculated to operate a fraud upon those, who are induced to act by reason of such conduct and acts of the parties. The question of the effect of grossly inadequate consideration in a sale between parties, was most exhaustively treated by Judge Thompson in Nelson v. Betts, 21 Mo. App. l. c. 231. The law applicable to the subject was thus clearly, and, we think, correctly stated: “The general rule is that mere inadequacy of price or consideration is no ground for claiming the rescission of a contract in equity. [Phillips v. Stewart, 59 Mo. 491.] Equity does not undertake to act as the guardian of mankind. It does not aid people who- make foolish bargains. But there are exceptions to the rule, which apply with peculiar force where the parties do not stand
IVe see no necessity for pursuing any further the consideration of the propositions disclosed by the record. We will not say that the defendant or her counsel wilfully or intentionally perpetrated a fraud upon the • plaintiff, but from the undisputed facts, as heretofore recited, we see no escape from the conclusion that their acts and conduct concerning the procuring of this conveyance, would, at least, operate a fraud upon the plaintiff, respecting her rights and interests in the real estate conveyed.
We have given expression to our views upon the questions presented and in our opinion the action of the trial court in denying plaintiff relief upon the facts developed, and dismissing her petition, was erroneous.