217 Mo. 362 | Mo. | 1909
This is a suit in equity by the widow and minor son of Dr. L. O. Glascock, deceased, against Melvin Glascock and G. M. Glascock, his brothers, to have certain deeds and conveyances executed by her deceased husband and herself declared fraudulent and void on account of the alleged fraudulent acts of the defendants and on account of duress by threats, and to divest the title out of the defendant Melvin Glas-cock in and to certain real estate and vest the same in plaintiffs.
The petition alleges that said L. O. Glascock and plaintiff Gillie were at the time of his death husband and wife and the plaintiff Emmet their only son, and
It is then alleged that on November 27, 1895, by like fraudulent representations and by like means and the same threats and without consideration another warranty deed was procured from Doctor Glascock and plaintiff Gillie to Melvin conveying lot numberéd 1 of the northwest quarter of section 4, township 24, range 11, for the pretended consideration of five hundred dollars.
That on July 8, 1897, by the same means of duress, a warranty deed was obtained from the plaintiff Gillie directly to her husband, Dr. L. O. Glascock, for the pretended consideration of one dollar, "which was never paid, purporting to convey all of lots numbered 1, 4 and 6 in block 26, in the city of Dexter.
For practically the same causes the following other conveyances were assailed in the bill: A deed of trust from plaintiff Gillie to L. O. Glascock to Melvin Glascock dated November 8, 1897 conveying lots one, four and six and out-lot three in Dexter, and purporting to be given to secure a note of $725 due two years after date; a warranty deed from plaintiff Gillie and her husband to defendant G. M. Glascock of date December 10, 1900, and a deed of the same date from
It is then alleged that at the time of Doctor Glascock’s death the premises including all west of Bess Slough in the northwest corner of lot two of the northwest quarter of section 3, township 24, range 11, and known as Mill property, was incumbered by a deed of trust of $125 and plaintiff Gillie desiring that the same should be sold, the defendant Melvin agreed to have it advertised and sold under the deed of trust and to buy it in for her, but instead of so doing, Melvin bought in the property in his own name for $25, and afterwards sold the same for f200, and never accounted for the overplus and appropriated to his own use the rents of the property after June 8, 1902.
It is then alleged that Doctor Glascock’s office, situated on lot one in Dexter, was insured and the premiums on this insurance were paid out of plaintiff Gillie’s money, and that this office has since burned and that the defendant Melvin was about to collect the.insurance. There is also a charge that the defendant Melvin has collected all the rents on lot one of the northwest quarter of section four and has never accounted for the same.
The answer of G. M. Glascock was a general denial.
Defendant Melvin admitted that he obtained the title to lot ten, block two, Deal & Boughton’s addition to Dexter, and to lot number one of the northwest quarter of section 4, township 24, range 11, by the deeds set out in plaintiff’s bill, and that on November 8, 1897, Dr. L. O. Glascock and plaintiff Gillie executed their joint promissory note to defendant for $725 and secured the same by their deed of trust on lots one, four and six and out-lot three, block 26, in Dexter. Further answering defendant Melvin stated that his dealings with the said L. O. and Gillie Glas-' cock in and about the property mentioned in the bill
In relation to the property described as that west of Bess Slough in the northwest corner of lot two of the northwest corner of section 3, township 24, range 11, and known as Mill property, defendant alleged that plaintiff Gillie and L. O. Glascock executed a deed of trust thereon on December 29, 1899, to secure a debt of $125 to A. H. Carter and J. N. Miller, that this debt became due and said L. O. and Gillie were unable to pay the same and at their request defendant took an assignment of the same and paid said debt; that afterwards Doctor Glascock was sent to an asylum and it became necessary to foreclose this deed of trust in order to get the title in a condition in which it could be handled to the best interest of all concerned and accordingly said property was advertised accord
Dr.
To amount sale of mill............$200.00
To rent collected on property...... 26.00
C'r.
By note and deed of trust.......... $130.30
By taxes, cost of sale, repairs...... 74.31
By cash paid funeral expenses of Dr. Glascock........,............ 131.80
By taxes and insurance on lot one.. 53.18
By taxes on eighty acres aforesaid.. 16.67
$226.00 $406.26
The defendant stated that he charged the last two items to this Mill account for the reason that they were justly due for moneys paid for and on behalf of plaintiff and her said husband and he has no lien or security -therefor. Defendant Melvin further states that there is still due him on said property the sum of $180.26, and although he purchased the- said property in open competition with the world, yet upon the payment to him of the said sum by plaintiff he will gladly reconvey said land to them or either of them.
In reply the plaintiffs denied all the new matter in the answer and alleged that the charges on the Mid property of $74.31, $53.18 and $16.67 are not proper charges on said property and were made for the purpose of burdening the same so as to prevent redemption by plaintiffs. They further state that the payment of Doctor Glascock’s funeral expenses by defendant was wholly voluntary.
To maintain the allegations of her petition the plaintiff Mrs. Glascock offered in evidence a warranty deed from herself to her husband L. O. Glascock dated July 8, 1897, conveying the lots one, four and six in block 26 in the city of Dexter for the alleged consideration of one dollar, and a deed dated December 13, 1900, by L. O. Glascock and herself to G. M. Glascock, conveying the same lots for an alleged consideration of one dollar. When offering this deed plaintiff called special attention to the acknowledgment of the deed, which was in these words:
“State of Missouri, County of Stoddard, ss.
“On this 13th day of December, 1900, before me personally appeared L. O. Glascock and Gillie A. Glascock, ‘ said she ■ assigned that was enough, ’ his wife, to me known to be the persons described in and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed.
“In testimony whereof, I have hereunto' set my hand and affixed my official seal, at my office in Essex, Missouri, the day and year first above written.
“My term of office, as a notary public, will expire October 9, 1901. William T. Arnold,
“Notary Public.”
Plaintiff then offered in evidence a warranty deed of the same date from G. M. Glascock, a single man, to L. O. Glascock, conveying the same lots, which deed was recorded December 13, 1900.
In regard to the Mill property, Mrs. Glascock testified that Melvin Glascock paid off a mortgage on this property amounting to $130 and afterwards wrote from Tennessee that “when he came out here he would make it secure.” But he never did anything
In relation to the execution of the other deeds she testified in substance as follows: First, as to the deed of December 10, 1900, from herself and husband to G. M. Glascock conveying the lots one, four, six and three in Dexter, she stated that at first she would not sign it, but the doctor told her if she did not he would kill her and from his actions and looks she knew he would do so, so she signed it. She told G.'M. Glascock what the doctor had done to get her to sign the deed. She never knew that there was a deed given with the consideration of one dollar and she never got the dollar. Upon the-morning that this deed was made she, Melvin, G. M. and Doctor Glascock were at her home at Pinhook and went from there to Essex where she signed the deed. At the time she signed the deed G. M. and the doctor were standing in the door of the notary’s office; Melvin was somewhere in town, but she did not know where. After the deed was signed the others went to Bloomfield to get the deed recorded and she returned to Pinhook. Second, in regard to the deed to the lots in Dexter known as the home place from herself and the doctor she testified in response to a question as to why that deed was executed, as follows: “The deed to the home place in Dexter was in my name and the doctor
Third, as to the deed of trust of November 8, 1897, on this home place for $725, she testified this was given without any consideration, she did not know anything about Melvin having the deed, they told her they were mortgages, she never knew there was any deed given except to U. M. Glascock, and they told her that was a mortgage. She signed this deed through fear of- Doctor Glascock. He told her, “If you do not sign that mortgage, I will kill you.” And she told his brother this. “The doctor looked wild out of his eyes and showed that his mind was not right.” “Q. "Who was present at the time the doctor told you he would kill you if you did not sign your name to this deed of trust on the home place — nobody there besides you and him? Ans. No, sir, there wasn’t— they would not let me know anything- about their business — they kept it away from me for about eight weeks. Q. When 'did you tell the defendant here, Melvin Glascock, that you had signed this deed of trust under threats from your husband? Ans. At the time of the first deed I told him more than I did anyone else — I told him all about the doctor losing his mind, and how he talked to me, and I told him that at the garden gate, that he told me, if I didn’t sign this mortgage — he never told me it was a deed — I told him that he said, if I didn’t sign this, that he would kill me — and I signed them through fear, or I would not have signed them. Q. How long after you signed the deed until you told Melvin Glascock about your husband threatening you? Ans. I don’t remember whether or not it was before or afterwards. Q.
On cross-examination, she testified to the following effect:
She lived with Doctor Glascock as his wife, from 1866 to the time he was taken away. Melvin Glascock visited their home frequently, was always agreeable in his conduct and always showed a disposition to see her and the doctor get along in the world. At-the time the doctor was taken away to the asylum, she was living with him at Pinhook. Melvin Glascock came over, but she did not remember of sending for him. She was not afraid of the doctor at the time he was taken away, so long as she could keep him in a good humor, but was afraid of him when he was angry. If she ever told her neighbors that she was not afraid of him and that there was no need of sending him away, she didn’t remember it. She testified that at this time, 1901, she had all the confidence in the world in Melvin Glascock, and that she always thought that he would befriend her and did not think that he would take a penny in the world away from her under any circumstances. She continued to have this same regard for him until he took the Pinhook place away from her. ■ The doctor told her if she did not sign the mortgage he would kill her. He told her that when she signed the first one. When she
The notary testified that when the deed was made by Doctor and Mrs. Glascock to G. M. Glascock, the doctor and G. M. were up at the door or had just stepped out. He asked her if she understood the nature of the deed. She signed it. She would not say whether she signed it as her own free act and deed. She simply said she had signed it and that was sufficient.
Mr. Langford testified he knew Doctor Glascock for ten years and worked for him. Never noticed anything wrong with him until about one year before he was taken to the asylum. The doctor had transacted all his business right up to the time he was sent to the asylum.
Mrs. Mentz testified that she thought the doctor acted strangely about eight years before the trial.
On the part of the defendants there were eight witnesses who were well acquainted with the doctor up to the time he was sent to the asylum and there was nothing wrong with his mind up to about one year before he was sent away. He attended to all of his
The case can only be disposed of intelligently by a consideration of the charges separately and the decree of the court as to the separate tracts of land.
I. The circuit court decreed a cancellation of the deed executed by the plaintiff Gillie to her husband Dr. Glascock, of lots one, four and six, in block 26, in Dexter, of date of July 8, 1897, on the ground that it was obtained by fraud on the part of Doctor Glascock, and also canceled the two deeds, made to confirm that deed, on December 10, 1900. This was the home place in Dexter. The averment as to the procuring of this deed of July 8, 1897, is that it was obtained “by the same means of duress for one dollar, which was never paid.” The only testimony as to the procurement of this deed was given by the plaintiff. She testified, “The deed to the home place in Dexter was in my name, and the doctor told me that, it being in my name, if we both should die, the place would all go to my folks and I said it was not fair. We had no children at that time, and he said for me to make this over to him in his name and so I did and I made the deed over to him in order that if we both died that way, it would not be all in one. ’ ’ She testified that she made the deed voluntarily and without any duress- whatever. There is no charge of fraud in the obtaining of this deed by Doctor Glascock, and plaintiff’s own testimony negatives the charge of duress and every semblance of fraud as to this deed. The conveyance was regular on its face and there is not a scintilla of evidence that the defendant Melvin Glascock had any notice of duress or fraud in procuring the same. That plaintiff, Mrs. Glascock, was legally competent to convey this realty to her husband with
II. In natural and logical sequence this brings us to the decree of the court also canceling the two deeds of December 10, 1900, whereby Doctor Glascock and plaintiff Gillie conveyed the title to this home place first to G. M. Glascock, his brother, and by the latter back to Doctor Glascock. Obviously these conveyances were conceived and executed by Doctor Glascock on account of the opinion theretofore held by many members of the bar and by both courts of appeals, that the conveyance of July, 1897, did not have the effect of vesting the legal title in Doctor Glascock to this real estate and it was sought to cure this supposed defect by reconveying the property to G.. M. Glascock and have him convey to Doctor Glascock. The circuit court found that the conveyance by Doctor and Mrs. Glascock was invalid, but does not state in its decree upon what ground it based its decree. The ground alleged in the petition is that this deed was procured by violent and furious threats and by duress. The testimony of Mrs. Gl'ascoek alone sustains this charge. She testified in chief that the doctor told her if she did not sign the deed, he would kill her, but in her cross-examination she stated: “He did not come right out and tell me but he told me to get myself ready to go to Essex and sign that deed, and I did.” There is evidence of the notary that when he propounded the usual questions as to executing the same voluntarily, she said she had signed it and that was sufficient. But Melvin Glascock did not know of any duress, if such there was, and whether there was or
III. But even if we are wrong in our construction of the evidence as to the deeds of December 10, 1900, it is obvious they cannot affect defendant Melvin’s security obtained by the deed of trust of November 8, 1897, executed three years before the deeds of December 10, 1900. As already stated, the deed of July 8, 1897, had vested the title to the home place, lots one, four and six in block 26 in Dexter, in Dr. Glascock, by the wholly voluntary act of plaintiff Gillie. This deed of trust was given to secure a note of $725 signed by both Dr. and Mrs. Gillie Glascock, payable two years after date and bearing six per cent interest. The circuit court found this deed of trust was procured by duress of Doctor Glascock, of which defendant Melvin had knowledge at the time. That defendant Melvin loaned Doctor Glascock the $725 at the date of the note and deed of trust is evidenced by the genuine signatures of Dr. and Mrs. Glascock and the possession of the note and deed of trust by Melvin at the time of the trial. By positive statute in this State this note imported that Melvin Glascock had furnished the consideration therein named and the burden was on plaintiff to show lack thereof. [R. S. 1899, secs. 457 and 894; County of Montgomery v. Auchley, 92 Mo. l. c. 129; Taylor v. Newman, 77 Mo. 257.] But Mrs. Glascock simply testified she did not know anything about it. She could not say whether
While this court is inclined to defer to the finding of the circuit court, it has never abdicated its right to review the findings of the circuit court in chancery cases. [Kinney v. Murray, 170 Mo. l. c. 707; State ex rel. v. Jarrott, 183 Mo. l. c. 219.] Bearing in mind that this is a bill to cancel a solemn written instrument on the ground of duress, and that courts of equity require clear, cogent and convincing evidence in such cases, we are unable to concur in the finding of the circuit court that this note and deed of trust were obtained by duress. The plaintiff’s evidence is entirely too meager and unsupported to justify
IV. Having reached this conclusion as to the deed of trust, it'must needs be held that so much of the decree as awards plaintiff Gillie the insurance money arising out of the destruction of the property on one of the lots could not be upheld even if there had been proof that a building had been destroyed by fire, which there is not in this record. -
V. The court decreed dower in the Mill property, bought by Melvin, the defendant, under foreclosure of the deed of trust given by Doctor Glascock and plaintiff Gillie to secure Miller and Carter for $125. There is no claim that this deed of trust was invalid in any degree, but plaintiff insisted that Melvin agreed to buy it for her. The decree is illogical.
If Mrs. Glascock was entitled to anything under her petition as to this property it was a right to redeem the whole title by paying defendant Melvin his outlay in acquiring the title at the trustee’s sale, but the court evidently did not so find, but simply decreed her dower in the Mill property of two acres. The deed of trust being -entirely valid, and defendant having bought the note to protect Dr. and Mrs. Glascock, no doubt can exist of his right to buy the property at the trustee’s sale, especially as this was plaintiff’s desire. Moreover, defendant waived all questions of this kind by offering to let her redeem upon paying his charges thereon, and this was all that the
The circuit court found for defendant, Melvin, as to lot ten in block two in Deal & Boughton’s addition to Dexter, and as to the eighty acres in lot number 1, section 4, township 24, range 11 in Stoddard county, and we think rightly.
We have carefully read the whole of this record and have conceded the advantage which the circuit court had in seeing and hearing the testimony, but weighing the plaintiff’s own testimony it falls far short of that cogent and satisfactory evidence which a court of equity requires to set aside and cancel solemn written instruments and conveyances and certainly fails to show any of the collusion and fraud alleged against the defendant Melvin Glascock to strike' down and destroy his securities for loans made by him to aid and assist his brother.
The decree of the circuit court is reversed with directions to dismiss the bill.
