Appellant Gary W. Sgouros (“Mr. Sgou-ros”) and G.W. Maintenance, Inc. (“G.W.”), an entity owned by Mr. Sgouros (collectively “Appellants”), appeal the trial court’s judgment in favor of Respondents Rose Lee Landers (“Mrs. Landers”); Den-sil Thomas Boone (“Mr. Boone”); and Patricia Ann Boone (“Mrs. Boone”) (collectively “the Boones”). 1 The trial court’s judgment set aside two real estate conveyances from Mrs. Landers to Mr. Sgouros made on March 17, 2005, on the basis that Mr. Sgouros and his companion, Lester Johnson (“Mr. Johnson”), unduly influenced Mrs. Landers to sell certain interests she possessed in 370 acres of land located in Butler County (“the Farm”). The trial court also determined Mrs. Lan-ders was incompetent on the date the contract for the sale of her interest in the Farm was executed and the date the contract was closed. Additionally, the trial court’s judgment restored to the Boones the interest they previously possessed in the Farm and also entered judgment against Appellants in the amount of “$3,950.00 representing the monies paid for the cutting of the timber [from the Farm] less $500.00 paid by [Mr.] Sgouros for the purchase of the real estate.” Appellants now raise four points of trial court error in this appeal.
A suit to set aside a deed is an action in equity.
Robertson v. Robertson,
Viewing the evidence in the light most favorable to the trial court’s judgment,
Estate of Thompson v. Hicks,
Following Mr. Landers’s death in 2003 and a subsequent car accident in which Mrs. Landers was involved, Mrs. Boone and Mrs. Landers “reconnected” and Mrs. Boone began to help her aunt attend to her personal affairs.
According to the testimony of Mr. Sgou-ros, in December of 2004 or January of 2005, Mrs. Landers made contact with her neighbor, Mr. Johnson, and discussed with him the possibility of selling the Farm. Mr. Johnson responded that he was not interested in buying the Farm. Mr. Johnson then contacted his Mend, Mr. Sgouros, to see if Mr. Sgouros was interested in purchasing the property. Mr. Sgouros then contacted Mrs. Landers, who advised him that she wanted $150,000.00 for her interest in the Farm. Mr. Sgouros told Mrs. Landers he was interested in purchasing the property and had his attorney prepare a “Real Estate Purchase Contract” (“the Contract”). 5
On January 22, 2005, Mr. Sgouros and Mr. Johnson met Mrs. Landers at a highway intersection in Ripley County and she followed them to People’s Community Bank in Doniphan, Missouri, to sign the Contract prepared by Mr. Sgouros’s attorney. Mr. Sgouros and Mrs. Landers signed the Contract on that date. According to Mr. Johnson’s testimony at trial, it was on that date that Mrs. Landers thought she was to receive her money for the sale of the Farm. Mr. Johnson testified at trial that Mrs. Landers “thought she was getting paid right then.”
*657 According to Mr. Sgouros, shortly after the mutual execution of the Contract, it was discovered in the course of a title search on the Farm that Mrs. Landers had only a life estate in the Farm and possibly an undivided one-half interest in 120 acres of the Farm. Mr. Sgouros testified at trial that he then called Mrs. Landers and told her he could not pay “a lot of money for [the Farm].” As a result, his attorney drafted an “Amendment # 1 To Real Estate Purchase Contract” (“the Amendment”), which reduced the purchase price to $500.00. 6 Mr. Sgouros admitted at trial that he did not discuss the Amendment with Mrs. Landers, but that he faxed a copy to Mr. Johnson, who in turn, placed a copy of the Amendment in Mrs. Landers’s mailbox at the Farm. Mrs. Landers signed the Amendment, without benefit of counsel, on March 8, 2005, and Mr. Johnson then faxed the Amendment to Mr. Sgou-ros.
The closing of the real estate transaction took place on March 17, 2005. On that date, Mr. Johnson drove Mrs. Landers to the closing at a title company located in Poplar Bluff, Missouri, and waited outside while she made two general warranty deed conveyances to Mr. Sgouros. One deed conveyed “[a]ll of [her] undivided one-half interest in and to” 120 acres, as previously set out in the Amendment and in the Contract, and the second deed conveyed her “life estate interest only” in the totality of the 370 acres of land previously described in both the Contract and the Amendment. Mrs. Landers was unrepresented at the closing. She received a check for $500.00 and then departed with Mr. Johnson, who took her home. Later, at trial, Mrs. Lan-ders testified she thought she was to receive $44,000.00 at the time she executed her deed conveyances. She related, “They g[a]ve me a thousand that day, but they promised me forty-four.” 7
The record further reveals that prior to the closing, Mr. Sgouros notified Mrs. Landers’s tenant in possession of the Farm that he was purchasing the Farm and that the tenant had to leave. Mr. Sgouros also indicated that Mr. Johnson was to be the manager of the property. The record shows that the tenant had been paying Mrs. Landers $2,400.00 per year to rent the property for pasture. Shortly thereafter, Mr. Sgouros directed that hay be cut on the Farm for which he received $600.00.
The record also shows that on March 22, 2005, Mr. Sgouros incorporated G.W. and on April 8, 2005, Mr. Sgouros and his wife executed a quit claim deed transferring their interest in the Farm to G.W. On April 8, 2005, Mr. Sgouros entered into a “Timber Stand Improvement Contract” with “Circle H. Sawmill, LLC,” which provided that Mr. Sgouros would be paid “$100.00 per thousand board feet for the timber ...” cut on the Farm. Testimony at trial revealed that pursuant to the terms of the timber contract, Mr. Sgouros could ultimately receive about $30,000.00 for the *658 timber cut on the Farm. After the first cutting, Mr. Sgouros was paid $8,950.00 pursuant to the terms of the “Timber Stand Improvement Contract.”
Mrs. Landers filed a “Petition to Set Aside Deed” on May 5, 2005, which included a request for an injunction barring Mr. Sgouros from further harvesting timber on the farm. A “First Amended Petition” was filed on July 20, 2005, by Mrs. Lan-ders along with Mr. and Mrs. Boone requesting the trial court set aside the deeds from Mrs. Landers to Mr. Sgouros. Respondents pleaded that Mr. Sgouros had represented to Mrs. Landers that
he would pay her the sum of Forty-four thousand dollars ($44,000.00) for her life interest in the real estate ... and that ... [he] failed to do so but only paid [Mrs. Landers] the sum of Five hundred dollars ($500.00). That the sum of Five hundred dollars ($500.00) actually paid by [Mr. Sgouros] for the conveyance of the real estate interest ... is totally inadequate as consideration for the conveyance of her interest in said properties.
The First Amended Petition also set out that Mrs. Landers was “induced to convey” the Farm to Mr. Sgouros; was “feeble in mind and body” at the time of the conveyance which “constituted practically all of the property possessed by [Mrs. Landers] at the time;” and was “without the benefit of independent advice ...” at the time of the conveyance such that she was unduly influenced to complete the transaction. Additionally, the First Amended Petition also alleged Mr. Sgou-ros committed waste on the farm by having the timber cut and requested an accounting for the value of the damaged trees. As previously related, Appellants filed a counterclaim seeking a determination of the parties’ rights and interests in the Farm as well as partition of the Farm.
The trial court issued a preliminary injunction on July 21, 2005, which barred any further timber cutting on the Farm and a trial was held on January 5, 2006. At the close of all the evidence the trial court took the matter under advisement. On March 28, 2006, the trial court issued its “Findings of Fact, Conclusions of Law, and Judgment.” In its findings, the trial court found that Mrs. Landers
was obviously feeble and weak of mind. She did not recall even being at the closing and at times she did not know who her own counsel was. She did not recall ever bringing suit against [Mr. and Mrs. Boone], whom she was involved in litigation with for several years. She had difficulty understanding questions. She would recognize her signature on documents, but would not recall signing them.
The court found that “[b]ecause of the degree of involvement by [Mr.] Johnson in the purchase of the property by [Mr.] Sgouros, the court finds that [Mr.] Johnson and [Mr.] Sgouros were acting in concert to effectuate the purchase of the property from [Mrs.] Landers.” Further, relying on
Drake v. Greener,
based upon its own observation of [Mrs.] Landers at the hearing in this case and the testimony of [Mrs.] Boone that [Mrs.] Landers was not competent at the time of the real estate transaction in early 2005 to enter into the [Contract introduced into evidence at the trial and furthermore that the said [Mrs.] Lan-ders was unduly influenced to enter into the transaction by [Mr.] Sgouros and [Mr.] Johnson, who were acting in concert to purchase the valuable property at far below its actual value.
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[Respondents] carried their burden of proof with regard to the issue of compe *659 tency. Consequently, the court is forced to conclude [Mrs.] Landers was not competent either on the date the [Cjontract was executed or the date the [Cjontract was closed.
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The evidence showed that [Mrs. Lan-ders] was induced to execute the [Cjon-tract conveying her interest in 370 acres of land for the mere sum of $500.00. [Mr.] Sgouros quickly recovered his initial payment for the property by harvesting $600.00 worth of hay that was growing on the property. He then entered into a contract to cut the valuable timber from the land and was to receive $30,000.00 for his interests. The court finds that the little consideration of $500.00 that he paid is shocking compared to the actual value of the interest received by [Mr. Sgouros].... This court has found that a quasi-confidential relationship existed between [Mrs.] Lan-ders and her long time friend and neighbor, [Mr.] Johnson, who was used by [Mr.] Sgouros to procure [Mrs.] Landers signature on the [Contract and who escorted her to signing of the [Cjontract and the closing of the real estate transaction. Furthermore, [Mr.] Johnson acted as a go between to facilitate the closing of this real estate transaction.
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[T]he disposition of [Mrs.] Landers interest in her property to [Mr.] Sgouros, a complete stranger, with very little consideration was a most unnatural disposition of the property. Moreover, [Mr.] Sgouros was operating on [Mrs.] Lan-ders mistaken belief that conveying her interest in the property to him ... would somehow affect the interest of [Mr. and Mrs. Boone] to the property.... When looking at the transaction as a whole, the court considers the advanced age and physical and mental impairment of [Mrs.] Landers which made her susceptible to an exercise of undue influence. In addition, [Mr. Sgouros] had the opportunity to exercise his influence to cause [Mrs. Landers] to make an unnatural and unintended disposition of her property. The court further considers the active participation of [Mr. Sgou-ros] in preparing the contracts, deeds and the active participation by [Mr.] Johnson on behalf of [Mr.] Sgouros to secure the presence and signature of [Mrs.] Landers to effectuate the execution of the deed. These factors, coupled with the absence of bonified independent advice and the previously determined absence of valuable consideration, causes a classic case of undue influence and the court finds that [Respondents] have made their case. Accordingly, the court finds that the deeds resulted from undue influence.
The trial court ordered that the March 17, 2005, conveyances be “set aside and are considered void.” It also ordered that Respondents recover judgment against Mr. Sgouros and G.W. for “$3,950.00 representing the monies paid for the cutting of the timber less $500.00 paid by [Mr.] Sgou-ros for the purchase of the real estate.” This appeal followed.
Appellants raise four points of trial court error. Boiled down to their essentials, in their first three points relied on Appellants contend the trial court erred in setting aside the deeds to the Farm by determining: (1) Mrs. Landers was incompetent during the course of the entire transaction, because insufficient evidence supported this finding; (2) the entirety of the transaction resulted from undue influence, because the trial court misstated, misapplied and failed to apply standards of governing case law to the facts; and (3) the transaction resulted from undue influence, despite lack of substantial evidence *660 establishing either a fiduciary or quasi-fiduciary relationship between Mrs. Lan-ders and Mr. Sgouros and/or Mr. Johnson. In Point Four Appellants assert the trial court erred in entering judgment against them for the value of the timber cut on the Farm in that the trial court misapplied the law and the judgment was not supported by substantial evidence. Appellants assert the Boones failed to prove harm to then-reversionary interest and Respondents failed to establish the extent of their damage.
In our review of Appellants’ first three points relied on we are guided by the following principles. “A deed procured by the exercise of undue influence is rendered invalid.”
Pike v. Pike,
“The cases recognize that undue influence is seldom susceptible of direct proof and that generally it must be deduced from the circumstances of the particular case.”
Reeves v. Boone,
Additionally, we observe that “[m]ental capacity and undue influence are ... intertwined. Both involve a state of mind and for that reason, feebleness and infirmity of intellect are facts to be considered in whether or not undue influence exists.”
Farnsworth v. Farnsworth,
It is our view that the trial court’s judgment, premised on undue influence and mental incapacity, has not been proven by clear and convincing evidence. 9
Regarding the issue of mental capacity, it is clear that Mrs. Landers had not been declared legally incompetent by a court of law, neither was there any medical evidence which concluded she was incompetent. Alternatively, there was insufficient testimony by lay witnesses tending to show that Mrs. Landers was mentally infirm or mentally incapacitated. At most, Mrs. Boone testified that in the early months of 2005 Mrs. Landers’s mental abilities “were not good.” With that being said, Mrs. Boone acknowledged on cross-examination that she could not specifically say that in January of 2005 Mrs. Landers was incompetent.
As expected, Mr. Sgouros and Mr. Johnson testified that, in effect, Mrs. Landers knew what she was doing during the course of the entire transaction. Perhaps more telling, however, is the testimony of Mr. Boone. In response to the question of whether Mrs. Landers had been declared incompetent, Mr. Boone responded, “No, she hasn’t.” Mr. Boone also implied that Mrs. Landers had sufficient presence of mind such that she “wouldn’t sell 370 acres for $500.00.” When asked if Mrs. Landers felt that she had been swindled out of her real estate, Mr. Boone responded, “Well, I think that’s the reason she brought the lawsuit. She thinks she was promised one thing and she just received another.” Inferentially, we can conclude from these remarks that Mrs. Landers had an understanding of the extent and value of her real property.
Turning now to the findings of undue influence by the trial court, we note that “[a] presumption of undue influence arises where the evidence adduced shows a confidential or fiduciary relationship coupled with evidence of facts and circumstances showing undue influence.”
Bolin v. Anders,
“[I]t is not necessary to show that the defendant was present or was exerting his influence at the exact moment of execution'.”
Bolin,
“In looking for a fiduciary relationship, equity does not limit the circumstances under which it may be found but will look for those instances where a special confidence is reposed on one side with a resulting influence on the other.”
Robertson,
Here, Mrs. Landers testified she did not know Mr. Johnson “that well,” but he had been friends with her husband. She stated that her husband “was in bed two years before he passed away and [she] kept him home and [Mr. Johnson] dropped by one time to see him and the next time he c[a]me by he brought [Mr. Sgouros].” She stated she never told Mr. Johnson she was interested in selling the Farm and Mr. Johnson probably “just thought because [Mr. Landers] had died that [she] would sell it.” She stated that she “trusted Mr. Johnson. [She had] lived there by him for about twenty years.” She also related the reason she signed the Contract without reading it was because she “trusted [Mr. Johnson].”
Mr. Johnson testified that he had been “a good friend” of Mr. Landers prior to his death and had lived by Mr. and Mrs. Lan-ders for “[o]ver twenty years.” He acknowledged Mrs. Landers trusted him and stated that she had reason to do so “[b]e-cause [he] wouldn’t do [Mrs. Landers] wrong.”
Mr. Johnson also testified that he had never read the Contract because he “wasn’t concerned about it” and it was “not [his] action.” He stated that he never explained anything relating to the transaction to Mrs. Landers and that he “just directed her to Mr. Sgouros.” He related he was just “trying to facilitate a transaction between an old friend and new friend.” He stated he has not been to Mrs. Landers’s house since the day of the closing.
Mr. Sgouros testified that he had known Mr. Johnson for “eight or nine years,” and Mr. Johnson put him in contact with Mrs. Landers in early 2005. Furthermore, Mr. Sgouros testified that on the day of closing, Mrs. Landers met Mr. Johnson at a grocery store in Fairdealing, Missouri, and Mr. Johnson took her to the closing. He testified that he did not know Mrs. Lan-ders prior to this transaction; had never been in any type of fiduciary relationship with her; and was not related to her. He stated that although Mr. Johnson had known Mrs. Landers for a long time Mr. Sgouros did not think Mr. Johnson pressured Mrs. Landers to complete the transaction.
While the foregoing testimony of Mr. Johnson and Mr. Sgouros was discounted by the trial court, nevertheless, there is little in the record expressly showing that either Mr. Johnson or Mr. Sgouros coerced or unduly influenced Mrs. Landers into signing either the Contract or the Amendment. Additionally, there is little or no probative evidence tending to show that a confidential or fiduciary relationship existed between Mr. Johnson and Mrs. Landers or between Mr. Sgouros and Mrs. Landers.
See Mace v. Loetel,
*663
As previously related, while there was evidence from which the trial court could possibly conclude there was, as the trial court terms it, a “quasi-confidential relationship” between Mr. Johnson and Mrs. Landers, it is clear that a “confidential relationship ...
alone
is not enough to raise a presumption of undue influence .... ”
Robertson,
“Under the broad powers of a court of equity, and under the prayer for general relief by [Respondents in their First Amended Petition], these facts show combined theories by which we affirm the relief granted [Respondents].”
Coffman v. Coffman,
[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.[ 10 ]
See also Pike,
Although “inadequacy of consideration is insufficient to warrant relief in the absence of other inequitable incidents, when a person is induced to part with an item of value for little or no consideration, ‘equity will seize upon the
slightest circumstance
of fraud, duress, or mistake for the purpose of administering justice in the particular case.’”
Id.
at 403 (quoting
Drake,
“[W]here a grantor has been induced to execute a deed conveying something of value for little or no consideration, equity will grant cancellation if the conveyance was the product of fraud, duress or mistake.”
Hay v. Kohl,
“A unilateral mistake occurs when only one party has an erroneous belief as to the facts.”
Matter of the Estate of Hysinger,
[i]n this situation courts show a lack of sympathy for a claim that one party did not understand the consequences of an act and, in general, courts are very reluctant to allow one party or his representative to avoid a document or agreement for a mistake that was not shared by the other.
Hysinger,
*665 Here, while the evidence may support the proposition that Mrs. Landers made a mistake in law, the evidence also supports the proposition that she made a mistake in fact when she signed the Amendment which set out that she was to convey her interest in the Farm for $500.00. We agree with the trial court’s conclusion that she believed the $500.00 she received at closing was a down payment on the total purchase price of $44,000.00.
In our analysis, we also note that the “ ‘law differentiates between the mental capacity required of grantor making a deed as a part of the arms-length business transaction and the mental capacity required when grantor is receiving but the satisfaction of heart and mind which comes from benefiting those near and dear to him.’ ”
Peterein v. Peterein,
Nevertheless, while of weakened mind and physical condition, the record also reveals that Mrs. Landers was not mentally incompetent in the sense of not being able to understand the value of the Farm. When questioned at trial as to how much she was being paid for her interest in the Farm, she related: “Well, I thought it was about two hundred dollars ... an acre.” She also said that Mr. Sgouros had promised her a total of $44,000.00 for her interest in the Farm. When presented with a copy of the Amendment at trial and asked whether she had agreed to sell the Farm for $500.00, she responded, “That’s what they g[a]ve me, five hundred dollars ..., and Mr. Johnson g[a]ve me five hundred. No, I got no more since that.” She stated, “I asked him, he gave me the, huh, that little payment and I asked him when he was going to give me some more and he said about ten days.”
Mr. Boone testified that Mrs. Landers’s complaint was that “she had sold [the Farm] and the man wasn’t going to pay *666 her.” Further, Mr. Boone related that it was his understanding that Mrs. Landers “misunderstood what she was getting out of the property. [He did not think] it was ever[ ] explained to her.” He related that Mrs. Landers “wouldn’t sell 370 acres for $500.00,” because “she is a smarter woman than that.”
The record also shows that Mrs. Lan-ders was receiving an income of $200.00 a month from her tenant, who rented a pasture from her. This monthly amount yielded a yearly income of $2,400.00 to which she, as a life tenant, was the sole beneficiary. 13 This fact, too, lends credence to the proposition that but for her mistake Mrs. Landers would not have conveyed all of her interest in the Farm for a mere $500.00 when she was receiving four times as much on a yearly basis for renting her pasture. Indeed, as an example of her level of confusion during the course of these transactions, Mr. Johnson testified that at the time of the closing, he acknowledged that Mrs. Landers “thought she was getting money that day....” When asked on cross-examination if Mrs. Landers had seemed confused at the closing “about getting the money,” Mr. Johnson answered that “[s]he thought she was getting paid right then.”
Another factor lending credence to the proposition that Mrs. Landers was mistaken when she conveyed her interest in the Farm for $500.00 is the profound similarities between the Contract terms and the Amendment terms relating to the consideration she was to receive. The Contract’s terms provided for alternative payments to Mrs. Landers for $150,000.00, then $100,000.00 if she could only convey a lesser interest. Yet, using virtually congruent terminology in describing her interest in the Farm, the Amendment provided for a consideration of a mere $500.00.
The Contract provided, in pertinent part, that for a purchase price for $150,000.00 Mrs. Landers would convey “all [of her] rights and interest (including but not limited to [her] fee interest, present and/or remainder interest, to the entire property or to an undivided one-half interest in the real property, as the case may be, and [her] life estate in the real property).... ” This Contract amount was to be reduced to $100,000.00 if Mrs. Lan-ders could not “convey fee simple interest in the entire Property but can only convey an undivided one-half interest in the Property (whether a present interest and/or remainder interest and [her] life estate in the property).... ”
Then, the Amendment’s terms provided, in pertinent part, that
1. The Property to be bought and sold is defined as the life estate of [Mrs.] Landers in the real property identified in Exhibit A and Exhibit B [i.e., being a total of 370 acres previously described in the Contract] and the entire undivided one-half interest, whether vested or remainder, of [Mrs.] Landers in the real property identified in Exhibit A.
2. The purchase price to be paid for the Property as defined herein is Five Hundred Dollars....
Mr. Sgouros’s explanation as to why his offer for Mrs. Landers’s interest in the Farm went from $150,000.00 to $100,000.00 and then to $500.00 was based on the fact that when the “title work came back she didn’t own the farm.” When asked if he had “purchas[ed] a life interest on three hundred seventy acres (370) of land” for $500.00, Mr. Sgouros answered, ‘Yes.” He stated that in addition to the life interest, *667 he believed he had also purchased “a potential one half interest in one hundred twenty (120) acres of land....”
The record also shows that Mrs. Boone, believed the Farm was valued at $500,000.00. She explained that there were 110 acres of bottom land on the river that “could be worth twenty-two hundred dollars ... an acre,” and the river land is “all pasture.” She also related that 260 acres were in timber. When asked how much the Farm was worth per acre, Mr. Sgouros responded, “I would say maybe, it all depends if you look at the timber ground and field. I would say the field property would maybe be worth, the river property twelve hundred dollars ... an acre and maybe the timber property four hundred dollars ... an acre.”
Recognizing that “equity will seize upon the slightest circumstance of ... mistake for the purpose of administering justice ...,”
Gilliland,
We now take up Appellants’ fourth point of trial court error. Appellants assert the trial court erred in entering judgment against them for the value of the timber cut “in that the trial court’s decision misapplied the law and is not supported by substantial evidence because [the Boones’] reversionary interests were not harmed and Respondents did not establish the extent of their damage.” In this respect we disagree and find that Appellants’ fourth point lacks merit. However, this does not end our analysis. We determine Appellants are entitled to a measure of relief as set out below.
In the present matter, after setting aside the deeds conveying Mrs. Landers’s interest in the Farm to Mr. Sgouros, the trial court, quoting
Davis v. Clark,
Appellants maintain the trial court’s reliance on
Davis,
[w]aste is that which does a lasting damage to the freehold or inheritance, and tends to the permanent loss of the owner in fee, or to destroy or lessen the value of the inheritance. In this country, where (at least until recent years) timber in many places is a hindrance to the enjoyment of the estate, whether it *668 be for life or in fee, the law is that cutting timber for the purpose of cultivation (if it did not lessen the value of the inheritance) is a privilege following a tenancy for life, when it was necessary for the proper and reasonable enjoyment of his estate, and as long as he only acts in so doing in conformity to good husbandry, regard being had to the situation of the country and the comparative value of the timber. But this is a privilege which can only be exercised for the purpose mentioned, ie., the proper enjoyment of the estate, which is hindered by the timber. So it has been held that the tenant cannot cut the timber merely for sale.
Id. at 517. Based on the foregoing, the appellate court reversed the matter with instructions to the trial court to permit testimony relating to waste. Id.
While Davis was authored well over a hundred years ago, it is still good law in the State of Missouri and has been cited as authority numerous times. The trial court’s reliance on Davis is not misplaced.
Appellants also assert that “[w]hile the [t]rial [c]ourt did not specifically designate the theory under which this decision was made, the case was tried based upon waste by a life tenant.” As such, Appellants maintain there must be evidence as to the value of the Farm before the timber cutting and the value of the Farm after the timber cutting. We disagree.
“In an action for waste, ‘where the damage is small in comparison to the total value of the property and is readily ascertainable and where the verdict is not excessive, the amount of such damage may be arrived at by determining the cost necessary to restore the property to its former condition.’ ”
Lustig v. U.M.C. Industries, Inc.,
Additionally, while we agree with the trial court that Appellants committed waste, it primarily affected the Boones’ reversionary interest. Given the factual circumstances of this case, Mrs. Landers, as life tenant, was not entitled to a judgment against Appellants resulting from their having committed waste as to the Boones’ reversionary interest in the Farm. Furthermore, “[a]s a general rule, rescission of a contract does not merely terminate it, but abrogates it in toto. Consequently, rescission of a contract involves restoration of the status quo of the parties, unless the parties have agreed otherwise.”
Dilts v. Lynch,
Therefore, that part of the trial court’s judgment setting aside the March 17, 2005, general warranty deeds made by Mrs. Landers to Mr. Sgouros is affirmed. Additionally, that portion of the trial court’s judgment restoring to the Boones the interest they previously possessed in the Farm is affirmed. Further, that part of the trial court’s judgment ordering Mrs. Landers to return the sum of $500.00 to Mr. Sgouros is likewise affirmed. The remaining portion of the judgment awarding all Respondents the sum of $3,950.00 is reversed and remanded to the trial court for entry of a judgment awarding only the Boones the foregoing sum of $3,950.00 for waste committed by Appellants. Costs are to be assessed fifty percent against Appellants and fifty percent against Respondents.
Notes
. The record reveals that Mrs. Landers is Mrs. Boone’s aunt. Mrs. Landers was 85 years of age when the transactions under consideration took place.
. Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.
.There was a dispute at trial as to exactly what interest was conveyed to the Boones; however, it was agreed that Mr. and Mrs. Landers retained a life estate in all of the land so conveyed. It appears that in two separate conveyances Mr. and Mrs. Landers conveyed a total of approximately 370 acres to the Boones. In each conveyance, one for 120 acres and a second for 250 acres, made on the same date, the Landers retained a life estate in the property conveyed.
The record also reveals that Appellants filed a counterclaim against Respondents and requested the trial court “try, ascertain, adjudge, and decree the title and interest of the respective parties ...” to the Farm. Appellants also prayed that once the rights and interests of the various parties were determined by the trial court, the court should order partition of the Farm. Due to its determination that the deeds representing the conveyances made by Mrs. Landers on March 17, 2005, should be set aside, the trial court did not declare the rights and interests of the parties to the Farm and denied Appellants’ counterclaim, including their prayer for partition. Additionally, we note that Mr. Landers died in July of 2003 and Mr. and Mrs. Lan-ders had no children.
. The first lawsuit was dismissed by the trial court and the second lawsuit resulted in a judgment in favor of the Boones.
. The Contract set out that Mrs. Landers agreed to convey to Mr. Sgouros all of her "rights and interests (including but not limited to [her] fee interest, present and/or remainder interest, to the entire property or to an undivided one-half interest in the real property, as the case may be, and [her] life estate in the real property)” as described in the two deed conveyances made by her and her husband in 1989 to the Boones.
The Contract also called for a purchase price of $150,000.00, which was to be reduced to $100,000.00 if Mrs. Landers could not "convey fee simple interest in the entire Property but can only convey an undivided one-half interest in the Property (whether a present interest and/or remainder interest) and [her] life estate in the Property....”
. The Amendment set out, in part pertinent to our analysis, that:
1. The Property to be bought and sold is defined as the life estate of [Mrs.] Landers in the real property identified in Exhibit A and Exhibit B [i.e., the 370 acres of land previously described in the Contract] and the entire undivided one-half interest, whether vested or remainder, of [Mrs.] Lan-ders in the real property identified in Exhibit A.
2. The purchase price to be paid for the Property as defined herein is Five Hundred Dollars....
. In its judgment, the trial court found Mrs. Landers “received $500 for her interest in 370 acres of real estate. She thought it was a down payment on $44,000 that she was supposed to get.”
. In
Grissum v. Reesman,
The term frequently used in equity cases, with reference to the required degree of proof, is 'clear, cogent and convincing’ evidence. The courts have seldom stopped to analyze that term. As we now construe the phrase, it really means that the court should be clearly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence. The word 'cogent' adds little, if anything; it means impelling, appealing to one's reason, or convincing.
"The trial court may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it.”
In Re Estate of Dawes,
. We expressly reject the proposition tendered in Appellants’ second point relied on that the trial court also erred in its determination that this case is governed by
Drake,
. All rule references are to Missouri Court Rules (2006).
. In
Rombach v. Rombach,
. An agreement is unconscionable if it involves “an inequality so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.”
Peirick v. Peirick,
. This foregoing fact tends to discount Mr. Sgouros's remarks that Mrs. Landers sold all of her interest in the land to somehow deprive the Boones of any benefit in the land.