138 Mo. 25 | Mo. | 1897
This is a suit in equity to set aside a quitclaim deed dated December 14, 1891, made by plaintiff in consideration of love and affection, whereby she conveyed to defendant, Florence E. Noble, one undivided one third of four fifths of a tract of mineral land in Jasper county, Missouri. By the deed the grantor retained a life estate in the land.
The petition charged that said defendant was the granddaughter of plaintiff, by whom she was raised from infancy, and had been educated. That she is twenty-two years of age, intelligent, and well educated.
That plaintiff is seventy-five years old, and is very weak and infirm, and mentally incapable of looking after her business affairs; that she is illiterate, and can barely write her own name, and has never had any experience or knowledge of business matters; that for the past few years she has been in feeble health and weak in mind, and has intrusted all her business matters to her two sons, Mat and Marshall Doherty, especially in litigation with other parties over this same land.
That defendant Thomas Noble, the husband of defendant Florence, is a well educated man and a physician by profession, and in the absence of her said two sons, defendants controlled plaintiff in business matters, and by their relationship to her and
That plaintiff resided in Crawfordsville, Indiana, and defendants, since their marriage, in Cincinnati, Ohio.
That one Clodfelter, of Crawfordsville, was the attorney for .plaintiff in the former litigation. That shortly after the trial of said eases in Missouri plaintiff was taken to the home of defendants in Cincinnati, where her said attorney, Clodfelter, met her, and by the undue influence and. threats of said Clodfelter and defendants she was induced to execute and deliver the deed in question.
The answer, after denying generally the allegations of the petition, charges, affirmatively, that plaintiffs, by and through the advice of her two said sons, agreed to ratify and confirm the said conveyance if defendants, would cancel a certain prior conveyance of the said plaintiff to defendant Florence E. Noble. That defendants did cancel such conveyance, and thereby surrendered to plaintiff valuable property, and plaintiff-then and there fully and freely confirmed and ratified the deed in question.
It was shown upon the trial that at the time of the execution of the deed plaintiff was a widow about seventy-three yrears of age; that defendant Florence was her grandchild, whom she had raised from her infancy and educated. Previous to this disagreement the relationship of plaintiff and said defendant had been as. that of parent and child. Declarations of plaintiff, often repeated, were shown, whereby she had announced her intention of treating said defendant as a child in the disposition of her property. Their relationship was. very affectionate and confiding.
Plaintiff had two sons, Mat and Marshall, who advised and generally controlled her in business matters.
Said defendant was an intelligent and fairly well educated young woman about twenty-two years of age. She lived with plaintiff at Crawfordsville until her marriage, a year or two before the transaction complained of, when she moved with her husband to Cincinnati, where he was then attending medical college.
Plaintiff owned a home in Crawfordsville, valued at about $6,000, and the property in this litigation. This last named property seems to have been in litigation with other claimants, and had been decided favorably to plaintiff by the circuit court, but an appeal had been taken to the supreme court by the. opposing party.
Previous to the death of her husband in January, 1890, plaintiff had made a will by which she had devised to defendant Florence one third of all her property, and to the children of her two sons the remaining two thirds.
After the death of her husband she had made a new will by which she also gave said defendant one third of all her property.
Shortly before the execution of the disputed deed plaintiff had executed to defendant another deed whereby she conveyed to her one third of the Crawfordsville property, reserving to herself the life estate.
As before stated, Clodfelter was the attorney of plaintiff in the pending litigation over this Missouri land. He met plaintiff at the home of defendants with the view of making a settlement for legal services rendered. This interview resulted in plaintiff making him a deed to the undivided one fifth of this property. While this deed was absolute on its face, it seems only to have been intended as security for the fees that might thereafter be agreed upon.
Clodfelter and both the defendants testify that, after securing the fees of her attorney, plaintiff requested him to prepare deeds to said defendant and her two sons to the remaining four fifths of the land, as she would prefer arranging the matter by deeds than by will. Pursuant to this request the deed was made conveying to defendant Florence an undivided one third of the land, reserving to herself a life estate and the royalty on all minerals taken therefrom during her life. The attorney advised that inasmuch as plaintiff’s sons were involved in litigation, it would be better to consult them before making their deeds.
The two sons were very much displeased with the settlement made by Clodfelter and to the deed-made to defendant. Afterward plaintiff and her two sons met defendants, the matter was discussed' and defendants agreed to a cancellation of the deed to the Crawfordsville property. They claim and testify that this was done in settlement of the whole matter.
I. There is no direct evidence that defendants or either of them suggested making the deed. They testify unequivocally that the suggestion came from plaintiff herself, and in this their evidence is corroborated by that of Clodfelter.
Plaintiff denies any knowledge of having made the deed at all, but she admits that it had previously been her intention to give defendant one third of all her property, that at the time the deed was made she had an executed will making the same disposition of her property, and that she had also executed a deed eon
Plaintiff had' raised defendant from her infancy and there had always been the tenderest v affection between them. In the circumstances, we must treat the relationship between them as that of parent and child. There is no presumption against a voluntary conveyance from parent to child. The burden properly rested upon plaintiff to prove the exercise of some undue influence by defendant over plaintiff by which the deed was secured. McKinney v. Hensley, 74 Mo. 332.
We are of the opinion that the evidence fails to prove the allegations of the petition.
The evidence also satisfies us that there was a fair settlement of all differences between the parties before the commencement of this suit. Defendant released to plaintiff valuable property rights, and in consideration thereof, plaintiff, under the advice of her son, fully and freely ratified and confirmed the deed.
II. But the judgment must be affirmed for another reason. It appears from the abstract of the record prepared by plaintiff that some depositions and deeds were read in evidence by defendants on the trial, which have been lost since the trial, and are not contained in the abstract at all. Appellate courts review the evidence, in equity cases, and unless all of it, or its substance, is preserved in the record, we must act on the presumption that the trial court decided correctly. The omitted evidence may be controlling, and we must assume that it was.
It is the duty of the appellant to make an abstract of the record. It is true, when only a copy of the
The judgment is affirmed.