*1 SUPREME OF COURT Elzea Dunn. with, respect taking private property for ments to the public a. use. finally Appellant proceeding the
IV. insists that operated through] appropriated which land was ;his deprive process of his without due law. point specific upon ground He does out which he appear insistence, his bases nor does due process face of record the principle or otherwise that judicial procedure fundamental was violated. opportunity given He was due notice full to be heard. by publica- It is true that service the notice was proceeding essentially was one tion, but rem all cases, under authorities, character satisfy requirements of service is sufficient to of due process City [Kansas of law. v. Duncan, 135 City Cupp; v. Mastin, 80, 89; Kansas v. Commis- Huling St. sioners, 19 Ohio v. Railroad, 130 U. S. 559.]
In view respect of the conclusions reached with questions presented judgment 'the must be affirmed. It is All so ordered. concur. Appellants,
VAN B. ELZEA et C. al., v. FRANCES Appellants. DUNN al., et One, April 6, Division Incapacity: 1. SETTING ASIDE DEED: Mental Insufficient Evidence. eighty-six years At age, the time death deceased was years previously conveying three pmüe he had a deed Eight lay expressed real plaintiffs estate to a niece. witnesses opinion during that he was of unsound mind four or five years preceding death, and testified that the niece had so during stated to period, on divers them occasions statements she denied. Six said witnesses were parties, opinions part interested their based for the most glistening say circumstance that he would collect rocks and plain- there mineral them. Thirteen of the witnesses for tiffs, plaintiffs, substantially expressed three of them admitted and always opinion fifty that he was of sound mind. More than TERM, 1922. v. Dunn. defendants, including lift-long friends associ- witnesses farmers, bankers, ates, neighbors, physicians, estate dealers real mentally agents, in- was never and insurance testified *2 death, days competent paralized that and few before until a his forceful, strong-minded intelligent, ordinarily he was more than purchase self-reliant, testimony his their was fortified and and important after and transactions other estate business of real conveyance, high degree acumen. which showed a of proof Held, of to sustain the burden that the failed made de- at time he and he was weak and unsound mind his livered the deed to niece. Deceased, Housekeeper. bachelor, Influence: -: Undue a
2. niece, eighty-three years to his at time he a deed old made years and he from time she was three old had reared whom years he later him until she married. Three who lived house- a home to become his induced to leave comfortable years, faithfully keeper, remained for thirteen until which she years prior will, in to his death he made a death. Seven his gave preference her a substantial over his other rela- he which degree. years later in the Two he added a codicil to same tives spoke having will, in he her as been “in domestic his which charge household,” his and and directed executors control claim, any recompense repudiate services or demands for any by any legatee, legatee and declared should be receiving bequest wholly benefit or from barred anything estate, no contention that had and there is said niece will or Fourteen codicil. months do with the execution controversy, by conveyed deed in later executed greater part and his other homestead real estate. to her his of said deed and after she after the execution had been Two they receiving property, possession rents from said joint Prior thereto she bank account. a oc- established casionally receipted name, in his rents and turned the re- him, ceipts a few times she assisted him in clerical a .over to virtually parentis her, Held, capacity. stood in loco fiduciary relation, not sufficient to establish a facts are and .these Held, also, that the mere relation house- undue influence. keeper is not alone sufficient to establish to a householder fiduciary relation. being fiduciary Proof. Character of -: -: There grantor grantee, suspicion is mere between relation grantee’s not sufficient to establish the undue influence in the deed, equity requires procurement clear, cogent of a but a court of suggestions convincing proof and circumstances. Mere con- cerning purchase especially property, and the insurance of other resented, high personal that comes from re- influence SUPREME COURT OF v. Dunn. gard, improper, are not and therefore no in- evidence of undue fluence. Change Presumption. legal 4. ERASURES: in Date Deed.: presumption suspicious face, deed, is that erasures in a its on were made before execution. De- its Where the deed was dated 28, 1915, changed 28, 1914, cember and the date was to December figures and the scrivener testifies that the were mistake “1915” changed them, 28, 1914, date, and he to the December true gives explanation notary’s a reasonable of the mistake and his expired September 27, certificate recites that his commission 1915, on evidence, held, will not be other it the absence of that the change in dates was after instrument was executed. Agent 5. SETTING ASIDE DEED: for Both Fraud: Parties. Fraud may may circumstances, proven by be but where the transaction honesty dealing consist as well with fair with a fraudulent purpose it will be attributed to better motive. And this (1) and it case the evidence is'reviewed held fails secretly *3 that establish agent the scrivener who drew the deed was the as, grantee employed agent grantor; the while the the (2) adopting grantor’s grantee a that deed the as the child was conveyance made, charge the, .made after was and therefore the that adoption ground; (3) the was falls to the fraudulent that another by other, conveying years deed grantor made two later the same by conveyed grantee, day the to same and her the next scrivener, payment the was not made in the scrivener’s fraud ulent intervention in behalf at the the deed suit time in (4) executed; agent and that said scrivener was the of said agent grantor, grantee, lawyer procuring and not in the the a up adoption nearly the, draw a deed of after in made a deed suit was executed. Ignored will, -: in 6. Contract for Services: A Prior Will. by conveyance grantor prior niece, the a few to his to his no mention contract to the that effect if she would leave her comfortable become home and his house- keeper convey care for until and his death he to her would place, contract, home does not show there such was no es- pecially practically will, abandoned where and provisions by conveying carried out vital of the contract place property. and her said home other Hannibal Court of Appeal Common Pleas. —lion.
A. Special Judge. II. Waller, judgment Reversed and directed eor defendant. 693 TEEM, 1922. OCTOBEE Dunn. v.
Berryman Henwopd, Ely and Ben. E. H. David Hulse for plaintiffs. ex- fiduciary relation
(1) A close confidential and
at
time
defendant,
isted
deceased and
between
presumption
executed,
controversy
execution of
arises,
relation,
such
by reason of
fraud;
the result of undue influence and
said deed was
upon
satisfy
is cast
burden
defendant
cogent
leave
clear
proof
chancellor,
reasonable
the transaction
doubt,
room for
all respects fair,
for an
consideration,
adequate
ex-
brought
and not
about
fact free from
44 Mo.
ercise of undue influence.
v. Williams,
Garvin
48 Mo.
465;
West,
483;
v.
McClure v. Lewis,
Cadwallader
Mo.
135
495
v.
; Dingman
72
Martin v.
Mo.
314;
Baker,
141
v.
159
Studybaker
Cofield,
596;
Mo.
Mo.
Bomine,
466;
674;
Gossett,
170Mo.
Grantham
Kinney Murray,
Mo.
671;
Goodin
Middlebrook,
58;
Bosenwald v.
Mo.
Tur-
234;
Cornett,
Mo,
Cornett v.
Goodin,
exer-
202.
undue influence
Butler,
ner v.
(a)
standard
of a will is
the proper
cised
the making
of a contract or a
in the making
influence
testing
the mind
making
contract,
In
living.
deed between
in contact with
party necessarily
will of one
comes
influenced
unduly
thereby be
may
other,
those
Burham,
Ennis v.
overcome.
159 Mo.
entirely
(2)
proven
Even
thie
Hurley v. Kenally,
*4
contract,
in
case
relation to the original
facts
the
in
been
between
S'.
to have
Henry
made
any, alleged
claims
in
which she
pursuance of
Dunn,
and Frances C.
of the
for the vesting
would call
executed,
the
her
defendant,
said
property
title to the homestead
with the execu-
in connection
acts and conduct
fraudulent
the
therein after
change
of
the
made
deed,
tion
her
bar
by
testimony,
as shown
executed,
same was
absence
be entitled
to which she
any
might
relief
conduct. The application
acts
such fraudulent
-and
694
SUPREME COURT OP
quoted
approved
eqqity,
this case of
oft
maxim
equity
“he who
into
with dean hands,”
comes
must come
pale
leaves Mrs. Dunn
16
outside of
relief.
Cyc.
Corpus
144-148;
163-179;
21
Juris
sec.
Cream-
180',
er v.
214
v.
Bivert,
473;
Mo.
Gilmore
252 Mo.
Thomas,
Gammage
(3)
147;
v.
222 S.
Latham,
The
W.
controversy
absolutely
by
was rendered
reason
void
change
made
after
its.
therein,
execution,
agent
through
Frances
Gilbert,
O.
Dunni,
change being
knowledge
without
or con-
Henry
theory
sent of the
Elzea;
S.
on no
law can
court confirm said deed
con-
.as valid
veyance-
of the homestead
to the said Frances,
Any alteration of a written instrument made in
ab-
party executing
by,
beneficially
sence of the
one
in-
it,
tlijerein
having
custody
terested
thereof,
fatal
validity.
Champion,
to its
Haskell v.
136;
Mo.
Evans
v.
Mo:
Foreman,
449;
German Bank v.
Dunn, Mo.
79; Moore v.
69 Mo-.
Hutchinson,
429; Morrison v. Garth,
78 Mo.
Bank
434; Ho-rd v. Taubman,
101;
79 Mo.
v.
Kelly Thuey,
75 Mo.
Fricke,
178;
Mo.
Powell
Banks,
620';
146-
Koons v. Car
Co.,
Saving
App.
259; Moore v. Macon
22 Mo.
Bank,
App.
Bank Bosserman, 269; Investment
v.Co.
Scales Co.,
Rmdlen S White for (1) Stripped spurious of all collateral matters- injected false issues vain in a endeavor to distract this, and confuse, the real issue case resolves itself questions Henry capacity into-this theWas mental Elzea sufficient at the time this deed en (a) presumption able Mm to make it? is Henry S. Elzea was sane, and devolves on the prove very that he ofwas unsound at the time mind preponderance the deed was made, the testi mony. grantor’s , impeaching prove a deed Parties must incapacity.. McF'arland v. Brown, 8Q4; 193 S. Chad- W. *5 695 TERM, 1922. 218 v. Mo. 379; Thomas, Mo. Jones v. 198 Reed, well Studyhaker Mo. v. 623; Smart, Richardson v. 162 542; (b) sound Mr. was of 596. If Eilzea 159 Mu. Cofield, right dispose property of the had mind, convey, chose. as he Chadwell it, but of all of he did 383; Richardson v. Reed, Smart, v. 198 Mb'. Studyhaker
637;
MoMillin,
1072;
Hamlett v.
223 Si W.
(c)
and hallucinations
Thomas,
537; Turner
Mr.
v. Butler, 253 Mo.'218.
(b)
product
good
That the deed
was.
faith,
conclusively]'shown by
tfyat
corresponded,
the- fact
Henry
when
long
made,
Elzea’s
formed
often
697
TERM,
object
accomplished
had
expressed purpose.
It
property.
the condi
long
It shows
to his
intended as
declara
His
of his affections.
state
mind,
tion of his
purpose
part to
settled
“a fixed and
tions show
property,
disposition
it also
of his
a certain
make
knew what he
done
tended to
that he
show
disposition
property.” Hamil
of his
satisfied with
Armstrong,
Huffman v. Huff
621;
v.
Mo. 610',
ton
525;
v.
186 S. W.
Mo.
Bonsai
man,
S'hehan,
Briggs,
Doherty
Aylward
Mo.
Noble,
Mautpin,
590; Jones
Rule v.
84 Mr.
608, 613;
(e)
uncle
543. Mere fact deed
Thomas,
case
undue influence,
father to
makes no
niece,
child,
*7
of it. Bur
is no evidence
let alone
exercise
thereof,
does,
proof
defendant,
not shift
den of
alleging
prove it.
influence and fraud
those
undue
?must
Me
232; Hamlett v.
613;
Lee v.
Mo.
18 O. J.
Lee, 258
Mo.
v.
139
Hatcher
Millin,
1074;
Hatcher,
223 S. W.
Adams, 229
Mo.
v.
624;
32;
138
Land
Noble,
Dohertv v.
887;
158;
201 S.
Bonnett
Sinnett,
v.
W.
S. W.
Simiett
(3) Where
rendered
Ward,
v.
698
OF
SUPREME COURT
y.
Elzea
Dunn.
Among
action
the officers in favor of whose
R.
1909.
regularities
are
presumption
has been extended,
Cyo.
presumed
public.
It is
16
notaries
duty
performed
taking
properly
that the officer
Cyc.
acknowledgment.
Mo.
595'; Wannell
57
Kem,
1
v.
CSyc.
Casey,
App.
624;
Mo.
1
101;
623,
5
478; Bohan v.
¡Engine Company
Spring’field
622;
Mo.
v.
147
Donovan,
555;
v.
Webb. v.
78
Davis,
M,o.549,
Webb,
Barrett
104
just
specific per
(5)
If
Mo. 540.
this were
a case of
,a conveyance
compel
formance
court would
.the
acreage
Mrs. Dunn.
in the
described
deed to
Gupton Gupton,
Burnett
Hudson,
464;
v.
228 S'. W.
v.
Berg
Mo.
v.
'37;
Williams,
214;
47
Hiatt v.
72 Mo.
Moreau,
¡Mo.
Wright
Tuisley,
v.
199
v.
Sutton
416;
389;
Mo.
Hayden,
Bundy,
Mo.
101;
407;
West
Sharkey
Healey
Simpson,
McDermott,
SMALL, C. Petition filed equity by Henry to set S'. Elzea cer- aside deed made tain Mr. defendant, lands Frances C. Dunn, January age years> plain- at 24,1918, died tiffs, eighty
some collateral heirs, are the number, nephews Henry nieces of said S. Elzea. Defendant, Frances C. Dunn, is also-a niece. The land described pieces, containing consists of one about three *8 on his acres, located; which residence another was piece adjoining of 20 25 acres., or and a creek and across piece, a third therefrom; road and in the evi- described Courtney property, dence as thei was Business property city property in of Hannibal. The acre adjoins city. said petition charges “on that said was deed made
. day December 28, 1914, on some between said 28th day day of December, 28th 1914, and the of December, 3915.” That Frances defendant, C. a Dunn, sustained secured, fiduciary relation to Elzea, and said deed said by fraud and undue and influence, Elzea was said TERM, incompetent old physically mentally and weak and by will age That said deed. his sickness to make and January duly probated certain he devised 28, 1918, property Prances O. Dunn, in Hannibal to said sued to the Home of of the land and ten acres to' brothers all the balance his and, effect, Friendless, except stirpes, per their dead, heirs, sisters,’or and was, equally his to' share Dunn that defendant by property conveyed That and sisters. brothers major constituted the $30,000, was worth and said portion by property Elzea. all the then owned said Dunn
The answer of defendant Frances' O. admits January, testate, 24th on the that said Elzea died leaving, relatives, and as collateral bachelor, petition, de- in the but and named defendants Alleges they that the were the next of kin. nies adopted duly by said C. Dunn defendant Frances Henry was by adoption, 22nd executed the Elzea, day sole that as she is his and December, 1916, at heir and law. puts allegations of all
Said answer then the other alleges: petition in That said deed issue, December uot 28,1914, 28, 1915, made December pursuant to a with the de- her contract wias convey years before his death to ceased made fourteen ‘‘ property said acre described in deed and other all the property” if she live in home would her, manage died. ac- same for him until he That she thei fully part cepted performed contract, on her said conveyed owner of the so and was absolute by to her said deed. special judge,
The cause was tried after who, taking advisement, it under that the contract, found alleged Dunn in answer, defendant Frances her C. except only agreed that he Elzea., give place, Dunn home of his which consisted residence the 25 acres on which it of land fully performed but other land. That she located, part the contract on said resi- was entitled *9 SUPBEME MISSOUBI, COURT OF property deuce not the de- acres, but additional scribed That the her said deed. deed to December Elzea, 1914. 28, 1915, December 28, noj The or court further “that found there was fraud part undue influence on or O. Dunn, of said Frances agent, grant said obtain said as to deed, place, Henry home but that said S'. Elzea he was knew conveying place, said home in fulfillment of did so promise prior to said Frances C. Dunn becom- ing a member of his household and care-taker.”
The court found, further “that from about however, 1914, down to the time of the said death, body Elzea was weak and infirm in and mind reason age, easily old sickness in- and disease,” by defendant fluenced Frances C. Dunn, disposition property, unduly affairs and of his and she fraudulently Courtney influenced to' include the place adjoining and 25 acres the home on the west in place, deed, addition said home tol except propérty, place, that as all the home the deed was void. parties appealed judgment from Both th^
learned chancellor. There were 116 witnesses who testified at trial, plaintiffs. about 86 defendants and very The abstract of the record voluminous, is. contain- ing pages. impossible than a thousand more It is to un- testimony. only dertake set out the We consider it can discussing questions, appeal. raised on testimony I. overwhelming de- up ceased was never of unsound to within mind a short period being of his only death. He died, after sick for a days paralysis, few January on Mental thirty who Out about witnesses Incapacity. plaintiff, eight testified for ex- about pressed they opinion, lay were witnesses, during years, ofwas unsound mind or five four preceding at all, These death. witnesses all testified that Mrs. Dunn so. stated to them divers occasions *10 TERM, 1922.
Elzea v. Dunn. although period, during she however, denied, which, testify any permitted conversation or transac- to to witnesses, testify- so of these the deceased. Six tion with capacity part ing Mr. El- on the of want of mental parties. They also plaintiffs interested and ze,a, were opinions, part, on trivial cir- the most their for based place, collect rocks about he as that would cumstances in to one mineral and said them, and claim there was gold diamonds and silver there was and them that they glistened in contained but sun, them. The rocks precious others, claimed to minerals. He also no such petrified frogs animals and other small that the rocks had in them. plaintiffs’ own witnesses
About thirteen of substan- expressed opinion de- that the tially -and admitted always mind; these wit- sound .three cedent plaintiffs in the case. The other witnesses nesses were testify plaintiffs the decedent’s as to for the did fifty capacity. de- than witnesses for- the More mental neigh- life-long including associates, friends and fendants, physicians, in- real estate and bors, farmers, bankers, any parties, men not related to others, surance and mefitally deceased testified, incompetent never substance, paralysis stroke of he received a until days an he was more than death, few before his strong-minded intelligent, ordinarily' self- -and forceful, ability. good reliant fine man, character ever manifested There in the case he evidence inability sick- business until his last mental do ness. plaintiffs- joined
A number of the themselves selling City lots in Addition to the Elzea’s eight nearly every Hannibal or ten before being him and death; the last deed them represented January most of the dated 1917. He consisting heirs, himself and attorney in their fathers their fact mothers, as price selling conveying these lots. He fixed the sold the He had with the lots himself. settlements heirs SUPREME COURT MISSOURI, OP
each,year, paid coming them what was them, sign kept receipts which he them in hook for that had purpose. On December the’same month the deed 4,1914, purchased Courtney property made, inNsuit bargain good for $10,000,because he considered it a borrowed $8,000'from the bank to add $2,000, property. pay had for the All hand, the evi purchase. good dence showed made a He em ployed agent a real estate to rent and collect his rents improved property Hannibal, of which he *11 pieces. a agent number of Robert N. Gilbert his was for purpose paid this from 1912 until his death. He his own taxes, to his own insurance attended and made own his year at loans, least, until the before his death. made He a codicil to his will October 15, a 1913, about three before he the months made in suit. It not deed mentally contended that he was deficient at that time. Nothing especially happened changed or his be condition tween the time he made this codicil and when he made body deed. It is true, the evidence that shows, Ms- years- as the weaker, but he advanced, was became laid up any length confined to his house for of time. large- growth upon He had a or wen his neck for some years annoyed before death, his which no doubt, but him, ' mentality. did not affect his apparently Otherwise, years had no serious many illness for before his death, good, except forget and his for the mind wasl natural age, fulness old paralysis until he received the stroke of from which he died. controversy
The July deed in was recorded 28,1916. The bank pay from which he borrowed the $8,000 to Courtney property, the ascertaining that he had made conveyance, the give security asked him to for said note, by executing which he did deed of trust on some other property, including* the devised to Mrs. Dunn support by will. When the of trust deed presented was agent sign, him the bank’s who description read to> property conveyed, the him explained bim, they to' wanted to- secure 1922. TERM, v. Dunn. Elzea signed what understood it without hesitation and
note, day May, doing. 11th This he was was fully better, if not well, as he was evidence shows mentally though physically, somewhat preserved, age average forgetful, of his than the man enfeebled and January, up It fatal to the time of his illness years sMt Ms death deed three before was trans- he was when executed, month, was same important acting far business, most so-- some of purchasing record shows, to-wit, ever transacted, borrowing property,, Clouirtney $10,000 ,a complete good purchase, making $8,000 independent judgment. bargain, safe all on own wholly have We think failed to sustain upon proof, Mr. burden of wMch them show unsound was of or weak at time he Elzea mind controversy. delivered II. Does evidence establish that Mrs. Dunn oc- cupied fiduciary relation Mr. when the question and delivered? We do think so. She raised the decedent from the time she was three old.’ bach- He wlas an old *12 elor. She lived with until she was mar- undue ried; long and how not afterwards, does appear, only but all from the it must evidence, have been years, a few he her to induced leave a comfortable home in housekeeper, St. to Louis become Ms faith- she (cid:127) fully years, for tMrteen until he died. remained
We are satisfied from the evidence, that he did not regard rely upon her aas business in adviser, her any way manage to his and business affairs. gave His will preference in 1911 her substantial over Ms degree, other relatives in the same and in the codicil to day will, made 15th 1913, October, speaks he of his household of which ‘“Fannie Belle Dunn charge.” has been in Anfl domestic control and fur- ther in said codicil ¡anybeneficiary declares that, named any in his will against shall file claim for services his COURT OF MISSOURI, SUPEEME V. Dunn. recompense, for his he directs demands estate, or make any provides repudiate such and claim, executors any receiving shall be be barred such beneficiaries quests. indirect. direct or estate, or benefits from plaintiffs Mrs. Dunn no There is contention anything execution this will, do question especially The deed in of the codicil. only two a half months and after the executed no Mrs. Dunn There is codicil acquired made. evidence legal relationship in himto the meantime. newa simply control” ‘remained “in domestic she think We not of until business, at least household, of his January, joint in was established 1917, bank account two after execution of the which was possession question, had been had re and she of and profits property. There rents is ceived the she him in times would assist some evidence a few prior capacity, several oc 1909, a clerical receipted rents name and turned them casions, ’ true, over to him. It is that some of wit also nearly parties, all interested testified that Mrs. nesses, Duna attended to or most of his business, claimed she all making and the other evi statements, but she denies case it is true, dence in the shows because himself all and Gilbert attended to. the business of conse housekeep quence which he had. The relation of a mere doing householder than er, more Dunn did for Mr. view of circumstance that Elzea, parentis virtually stood loco as his child, fiduciary not sufficient create a relation between housekeeper [Hamilton householder. Armstrong, Hamlett v. cited; cases 614, and S. McMillin, Adams, W. Land v. 229 W. Doherty cited; cases 29; Bonsal Noble, Mo. Randall, 525.] point against plaintiffs. We rule this *13 fiduciary being III. There we have relation, as just proof upon found, burden of rests OCTOBEE TEEM, Dunn. petition charge Mrs. Dunn to sustain the in their procurement deed. exercised undue influence in oí her suspicions equity A are not sufficient. court of Mere cogent convincing
requires evi clear, discharge dence circumstances Armstrong, burden. [Hamilton UndueInflunce:Proof. preceding other cases 597, and cited paragraph.] can no such evidence in record. We find this present part Dunn not execu and had no in the by deed, tion of the so far as shown the evidence. It by suggestion, own decedent, his agent, with own the aid Eobert N. There Gilbert. unduly is evidence that she could have him, influenced strongly had she endeavored to do’so. This is indicated by the codicil his will. Moreover, times, two any suggestions in evidence, shown when she made to him property, reference or once as to bought certain property, Courtney when insurance, l;e and once promptly attending informed her he was to his own business. have We no doubt that in she regard obliga fluenced out of his for her and unduly- tions but that did her, she or could influence support proper' him is without in the record. It or improper due influence, but or undue influence, amounts to virtual or coercion the substitution of the grantee’s grantor, will which the law de nounces and which will invalidate [Huff will. nagle Pauley, Dysart, S. W. Hern v.
W. 910, 911; Land v. Adams, W. 163.] 229 S. point against plaintiffs.
We rule this important questions IV. One the most case this is, wrong- whether or not the date of the deed in suit was fully changed (who deed) N. Eobert Gilbert drew charged plain-
after it as executed, day tiffs, from the 28th of December, day 28th 1914. December, Changingdateofdeed. inspected itself has been us, appear, erasures and corrections the date thereof Mo.&emdash;45 n *14 SUPREME OP 706 COURT v. Dunn. Elzea which, testimony, by was, in Ms Gilbert stated by 1915, December 28, mistake was dated changed the true date the deed 1914, 28, it December He testified execution. at the time its made, explained might that it err or and , it a clerical mere the insurance was -also in come about because have being he had near the of the and that end business, policies previously .of insurance, a number of renewed dating evi inMm, Other deeds made them 1915. noth There corrections. is showed erasures and dence, suspicion ing testimony its truthfulness, on in To cast it. confirms: Gilbert is a which but there circumstance acknowledgment. notary, He and took was also a expires September in states his certificate Ms “term any part of has been no erasure 27, 1915.” There except acknowledgment, date; dated, it was its place, 1915', first 28, the deed in the December like figurés “14” written their “15” were erased place. It is the deed was clear, therefore, acknowledg its on the deed 1915', December as 28, - originally it have been ac written, were would ment knowledged as three months after commission Gilbert’s notary expired. But Ms the evidence while shows, expire September commission on 27, 1915, did again that date the further of four renewed on term years prescribed by the statute. There was, therefore, either a mistake in the date deed, as testified acknowledgment stating or a Gilbert, mistake notary expired. when term as There no evidence is presumes that it was the latter. The law in that erasures suspicious not on their were deed, made before face, [Matthews v. 696 ; deed was.executed. Coalter, Kemp, McCluey, 665; Holton v. l. c. Burnett App. l. 687; Whitesides, 78 Mo. c. Grimes v. 684, 878; l. Little 19 U. c. 10 Wall. S. Herndon, 26, U. S. Patrick, Hanrick U. Para Lindsey, 63 Mo. more v. The' erasure and correction 63.] acknowledgment having left here made as been valid notary’s expired, taken before the commission Yol. 2-97] TERM, v. Dunn. suspicious con but a circumstance, circumstance testimony
firming cor Gilbert’s that the erasures and rections in the date were stated made, as him. stamps revenue the back deed were changed.
initialed “Hi. SI 1915,” E. But, requested deed was not to be delivered or recorded until *15 by days Mr. ¡Elzea, and was ushered in three after put stamps may the deed was the well made, have been interrogated on in 1915; Gilbert was not to-that. This does not the overcome of testi- confirmation Gilbert’s mony acknowledgment afforded recital in the expired notary September his term as 1915. 2.7, against point plaintiffs. We rule this procured by Y. in Was deed suit fraud Mrs. testimony Dunn? We think not. The direct relat ing making given by to the of said deed was Gilbert. He sixty years age, was a man about of and had been in the. many real estate and insurance in business Hannibal for1 y6ars- He and Mr. Elzea were members of Fraud same From church. 1912 Gilbert all of collected ¡Mtr. Elzqa’s rents until his at death, and rented and the; repairs property. gave tended to of Mr. Elzea power attorney him a written to do so June 1916. 7, authority. Prior to that he time, acted under verbal He making also Mr. Elzea assisted in his annual settlements with the Elzea on account lots heirs sold Mr. Elzea in Elzea’s Addition. One of these settlements was made day on the 28th 1914, at December, which a number of present participated receipted were and and paid on money Mr. Elzea’s book to them. Mr. present Elzea himself at this settlement and so was Mrs. Dunn, was also one- the- who Elzea heirs. This settlement was made at Mr. Elzea’s house. After the over, settlement and Mr. Elzea were left “ alone Mr. room, Elzea said to-him: ‘I have some property I I [Mrs. want to deed to Fannie Dunn]; promised her that she would leave her home in St. COURT OF SUPREME I for me, make a borne .and come to Louis and Hannibal my property, give and I am share her a liberal
would good.’ my in a going reached down He to make word place, to the home where the abstract out box and took 25 acres thie abstract to the lives, Dunn now Courtney they lived, from where across the road iMjarket you to said, ‘I want Street, and on properties I want Fannie. to these make deed ’ wjord my pre- my good. officeand I went back malee pared house. Also it to Mr. Elzea’s the deed. Took back ‘ your my This is him, deed, me, took seal with 'and you your it examine it and see that abstracts, here are right.’ an error the date all found I had made I it been it have 1915, marked should deed, I had presence, did after I out I rubbed that you signed to-take this said, ‘I want deed, so, dowjn keep you have tell to the office it until I .and ’ kept signed my the deed office. Pie recorded. I day took his the 28th I December, deed acknowledgment my kept I think. I
then, *16 put Quite to it on a safe until he me record. while told you put ‘Now, he had better tins after, said, deed great many told me record.’ I did so. He a times property. always going give to Dunn this He Mrs. ” property.’ said ‘a liberal share of the earnestly argued secretly But it is that Gilbert was agent, ag¡ent for Mrs. as well as the Mr. Elzea, Dunn’s capacity, and that did him of Gilbert inform his dual betrayed but Mr. Elzea to favor her. cannot from We agent, the evidence find that Gilbert was Mirs. or Dunn’s anything that other than Mr. did follow Elzea’s di making rections in deed. this There evidence that is no he ever business for Mrs. but the Dunn, did evidence undisputed is that he for been Mr. Elzea’s renting agent management prop in the and the of his betrayed erty. is There evidence that he ever or tried betray unworthy to or was Mr. confidence. Elzea’s upon principal argument Tb¡é it is claimed that agent, faithless was Mrs. Dunn’s Mir. and was to TERM, 1922. v. Elzea Dunn. assumption, nip deed oil the based
Elzea, is deed after the December 28, 1915, Dunn Mrs. adoption De made on Mr. Elzea was Dunn of Mrs. sug Farris’s in accordance with'Mir. 2.2,1915,and cember adoption gestion would not that the deed of to Gilbert prop conveying devising prevent or Mr. way prevent erty that was and that the others, Elzea. from Mr. for Dunn secure a Mrs. herself to deed entirely found, and have satisfied, But we are 28, made on December deed suit was ground, argument, to. the because falls therefore, alleged to Farris deed was made before Mir. suggestions not, He could have to Gilbert. upon could Mrs. neither have acted therefore, them, question. reference to the Dunn, April, Mrs. Dunn Another that in contention is Place 'Elzea, a lot from Mr. received deed for Park conveyed day Gilbert; that Gilbert’s which she testimony next paid borrowing Mrs. Dunn it,
that he $1250 conveyance purpose-, that said is false, .and $850 fraudulently Dunn Gilbert obtained was pay services, betraying Elzea in Mr. for his
Gilbert Tbp securing con is, fraud, in suit. law presumed spiracy will not be without and falsehood by convincing against proven but evidence, must be cogent upon testimony party rests whom upon proof, in this case. burden of which is may proven by yet, where While fraud be circumstances, may consideration consist transaction under as well honesty pur dealing, fair fraudulent with a pose, it will better motive. [Jones be to- the referred v. v. Nichols, 962; 216 S. W. Garesche MacDonald, 103 465; Hamilton, Hardwicke Warren Payne, 245 S. W. Ritchie, McGrath *17 l. c. 1064.] procured more to the lot in Park Place was deed question
than in made, two after the deed was not there was no evidence that Gilbert was or did able, pay not for the deed the as he said he did. as to- lot, So SUPREME COURT OP adoption: requested Gilbert that testified .Mr. adoption up Parris,
him to-have the drawn deed procured it, draw whom Gilbert to Gilbert gratis at time, matter, stated the that was a and there hurry. testimony nothing no- was There is in the- Parris, acting to show that in matter Gilbert was not the request at the of Mr. as he said he The mere Elzea, was. fact that Dunn Mrs. receive the benefit of would what- it, agent ever was, did not show that Gilbert her pro- agent in curing or that he was her transaction, deed suit for her a before the deed adoption was made. point against plaintiff's. We rule this strenuously VI. itBut is contended that the will of Mr. Elzea executed in 1911, and the codicil exe thereto conclusively cuted October 15, 1913, show that there ,as no contract between Mr. Elzea Mrs. Dunn, to what housekeeper, she was to receive for as his services that, therefore, is Mrs. Dunn’s claim ‘‘ simply brought conceived in sin and forth iniquity.” do.not will We think so. The OmittingContract fromwill. and codicil do> state such there was no- is, thathe desireMrs.Dunn assert did not to existence’ contractafter was dead. Thereis that Mrs. Dunn ever saw or knew of evidence provisions; ex- istenceof the will or its it seems securely up been have Com- locked in vaultof Trust right pany, which executor.Mr. Elzea had a change by making will,Ms either new or will, by property disposed by veying by con- will. his. will was afterhe made him, considered That constituting the deedin suit to- Dunn, fixed pro- her, vision fact shown specifically thereby port sup- includedthe devised her for her trust day May,1917, $8,000 11th of he borrowed secure pay Courtney property, pay which included Courtney property, for the was included in *18 OCTOBER TERM, 1922. v. Dunn.
Elzea weight great evidence the of However, to her. deed finding we in which found, lower court shows, and the con verbal into enter did concur, .about. she if would that, to the effect D’mn, tract with Mrs. comfortably in Pt. where she Louis, leave her home re leave, no desire to and which she and situated, had housekeeper he died, be Ms until to Iris home, turn and give place.” wit Some of his '“home he would her place” Ms of consisted testified that the “home nesses upon located; which it was the 25 acres residence and plaintiffs, among consisted that it them one of the others, upon the 25 acres was located residence and which adjoining side west less, 25’ more acres, and the fully Dunn and faith That Mrs. of the creek and road. fully part performed can be contract there Elzea, record. the evidence in the doubt from Mr. conveyed making her both to to- Dtam, the deed iMirs. place,” as well connected the “home as tracts with promised property. Courtney to Gilbert that “I He said come leave her home St. Louis and she would her, give aher a home for I would me, to Hannibal and malee my my property, going to and I make liberal share of am ’’ good. then took out the abstracts for the three He word pieces property, said and deed, included properties you make deed to these “I want Gilbert, my good.” make The deed for Fannie. want to word I acknowledged Mm on December then executed custody placed be left in the of Gilbert 28, 1914, upon when so directed Mr. Elzea, record large apparently July, dis done in A number early testified that as sum witnesses interested in the 1917, and afterwards mer possession given faculties, full told them he had place,” including’ acre “home both connected tracts to Mrs. Dunn. it, petition aüéges that ever after the execution adversely Mrs. Dunn “has her, claimed possession occupancy said had the exclusive use, except (devised ten to the Home estate, real said acres SUPREME COURT OF MISSOURI, Dunn. will), denying of the Friendless Mr. Elzea’s Henry said Elzea, since execution of deed, said ’’ death, down the time of ‘his title to. property. appears It also that Mrs. Dunn made a upon Courtney property, April, of trust on the 11th of *19 a, 1917, and, seen, as we have he made deed of trust May, 11th bor- to secure $8,000, which he pay Courtney property prop- uipon rowed to for the erty specifically which he devised to Dunn support. will evidence for show’s that Mrs. hier only eighty Dunn one of the or more of his rela- any obligations tives to he was under or for whom whom any special part he had attachment. She was a years age. home life from the time she was three He even called her back after to- him she was. married. respond faithfully She amade sacrifice to to his call and keeper served’ him, of his house and home years thirteen until he died, afterwards She stood, effect, to him as an child best who had devoted the aged of her to an life father who had other family. formally adopt He even went far so toas way, formality in December, in a 1915,which, was a mere confirming prior their de relations. facto The evidence: all that he shows was a man highest character, who would not want to die without “making good” liberally provide his. word for her. That he did is no. evidence so, fraud undue influence part on the infirmity of Mrs. or of mental or Dunn, moral part. Accordingly, judgment on we rule, case, this should been the defendants. have judgment reverse the
We, therefore, below, directions the circuit court to set aside, and enter judgment against plaintiffs. for the defendants and Lindsay, sitting. G., concurs.; Brown, G., opinion foregoing
PER CURIAM:—The by Small, adopted opinion C., as the the court. All judges except Ragland, sitting. concur, J.,