258 Mo. 599 | Mo. | 1914
Henry and James, two sons of John Lee, deceased, sue his other heirs in equity in the Christian Circuit Court to set aside a certain conveyance made by him to his daughter, defendant Beasley, and to vest title in the heirs of Lee as tenants in common, joining a count in partition. Mrs. Beasley, on this record, alone answered. For some undisclosed reason, the count in partition fell out of the case. A decree in plaintiffs’ favor stops short with vesting title in the widow and heirs of said John Lee. Mrs. Beasley alone of the defendants appealed, and plaintiffs rested content without partition, taking no appeal.
The land in controversy is the west half of the northeast quarter of section 31, township 28, range 19, in Christian county.
The substance of the allegations of the bill is this: Long prior to the 6th of June, 1910, and on that day, John Lee was “weak and feeble-minded, sickly and diseased, and of unsound mind and incapable of transacting his ordinary business affairs;” that “while visiting with and under the influence of Nettie Beasley” he executed the assailed deed conveying said land to her'“ without any valuable consideration,” on the 6th of June, 1910'. The deed (copied into the bill) recites that said John Lee “in consideration of love and affection and the agreement on the part of party of the second part to furnish the party of the first part a home and give him personal attendance his lifetime, do by these presents grant,” etc. (The deed is in conventional warranty form.) The bill goes on to allege as follows: “There was no consideration, and that said deed was obtained by fraud and through undue influence exercised upon said John Lee, deceased, with a view to deprive the plaintiffs and defendants herein of their rights in said land. Wherefore plaintiffs pray,” etc.
However, as the bill is not now questioned, nor was it challenged below by appellant’s counsel, we earmark its imperfections and pass them by on the assumption that the cause was tried on the theory the bill impliedly stated a cause of action. If that was an erroneous assumption, then the maxim, communis error facit jus helps clear the situation a bit.
Mrs. Beasley answered admitting the alleged relationship of the parties to each other and to John Lee, admitting the execution of the deed, averring it “was made for a good and valuable consideration” (setting it forth as does the deed itself) and averring that defendant, faithfully performed her agreement “to care for and board decedent” until his death. The answer next alleged that John Lee was not of unsound mind and was not incapable of transacting his business affairs but “was a very shrewd dealer and fully understood his business affairs;” that the deed “was not made under undue influence of any one, but was made by said John Lee of his own free will and accord for the purposes set forth, wherefore,” etc.
Treating the suit as one at law instead of in eqqity, as it was, appellant, at the close of the evidence for plaintiffs and again at the close of the case, asked an instruction in the nature of a demurrer to the evidence,
The facts lie in small compass and will appear in connection with the disposition of the question whether plaintiffs made a ease for equitable relief under the bill and proofs. The appeal may be disposed of under two heads, to-wit:
(1) Of the instructions (and herein of the demurrer).
(2) Of the sufficiency of the proofs.
I. Of the instructions (and herein of the demurrer).
It was taken in ancient times, so a scholarly brother tells me, as within a limbo of unreason to do so useless a thing as to carry owls to Athens. To offer instructions in a cause in chancery is like carrying owls to Athens, coals to Newcastle, herring to Holland, gilding refined gold. The unbending rule of practice is that instructions fill no office at all in an equity case; hence, for appellate purposes, error cannot be predicated or assigned upon the giving or refusing of them. In ehancery the question is, not what the chancellor instructed himself to do, or how he talked the matter over with himself — the question is: Did he seek equity and do it? We have always so written the law, and doubtless always shall. Doubtless, too, iteration and reiteration are necessary even to so learned a profession as the law, for is it not written by a great authority on the way to promulgate good doctrine: “For precept must be upon precept, precept upon precept; line upon
What is true of instructions in general in equity is true of demurrers to the evidence in equity. They amount to the same thing, to-wit, nothing. [Troll v. Spencer, 238 Mo. l. c. 93 et seq.]
It is in law, as in life, one should look about him and be careful to avoid negligence. Doth not the proverb say: If one lie down with a beggar, one gets up lousy? So, if-one rely on instructions in equity, he leans on a broken staff and gets the worst of it in a fall. We put the matter in the homely similitudes of the fireside because the learned discourse in the venerable language of case law in that regard (blazoned and embalmed in nearly every volume of our reports) seems, like the seeds in the parable, to fall by the wayside or on stony ground.
Fortunately for appellant in this case, she also challenged the sufficiency of the evidence to ‘support the decree; hence the fact that the instructions before us must be put behind us and that the exceptions saved to the instructions bring nothing up for review, is not fatal to her appeal.
TI. Of the sufficiency of the evidence.
The case on the facts is this:
Henry Lee, one of plaintiffs, testified that his father lived with him in Christian county for a month and a half until the 15th of March, 1910, when he left for Illinois. He describes him as “mighty poorly, and had been for some time” with the consumption and asthma. In the spring he would “get mighty low and in the warm weather he would pick up again.” He was not as well as usual when he left for Illinois and would be bedfast a little while at a time. “I could not say exactly about his mind,” witness said, “but I rather think, being in the condition he was in, he hadn’t a very good mind, being in the condition he was in, being
James, a plaintiff (another son), testified to the same effect as Henry. He said his father was in “poor condition” and was “about as weak as he could be to get around,” he had asthma and consumption and was “bothered a good deal with age.” “His mind wasn’t of much account. He had been that way for five or
Plaintiffs, to make their case, also put on the stand the husband of defendant Beasley, and established by him the following facts: Decedent came to Illinois, to one of his sons there on the 17th of March. That son was afraid to keep him because he had the consumption. So on the 20th of March, he came to the house of witness. A physician was called who pronounced the disease consumption, and said he might live a year and might not. He was nursed and cared for at the Beasley house until he died. Decedent himself brought up the question of deeding the land. He said it was his desire to make the conveyance to the child with whom he died. Witness at first was opposed to his making the deed to his wife, and suggested that he make it to his other sons in Illinois, so that they could take the land and the Beasleys would be paid reasonable wages for taking care of him. The upshot of it all was that the two sons in Illinois were brought into the transaction, and they would not take the land in that way, and then* the father made the deed to his daughter, Mrs. Beasley, we take it with the knowledge of those sons. During the time he stayed in Illinois, decedent’s mind was sound, but his body was weak. He received nursing, care and attention from the Beasleys until his death and was buried by them. He was around until three days before his death when he became bedfast. Before that he thought he would get well. Witness could not tell from his looks that he was going to die, but admitted he “had no hopes for the man.” At the time he made the deed .he knew his children and knew what land was deeded. He brought his title papers with him to Illinois and got the land description for the deed in
A Mr. Roller testified for plaintiffs, that he knew decedent for twenty-five years. Sometime in February, 1910, witness heard him say to his son, Henry, who wanted a deed to the place: “ I won’t do that, I will make a contract for a year at a time and if I want to make a change I will do so, for I won’t make nobody a deed to take care of me.” Pie described his bodily condition when he left for Illinois to be about as the two plaintiffs had said, but having said he did not know what his. mental condition was, he also said he did not notice anything wrong with his mind the last time he saw him, that he was capable of attending to his business and his mind was in a fair condition. Witness said decedent’s .wife “had left him” about a year before, and that he lived in a cabin by himself and the neighbors had “to take in things,” and that Henry went back and forth and cared for him before he rented the place. Witness lived close and never saw him read or write.
Plaintiffs also introduced a woman named Mary Wilson (we take it she was defendant Mary Lee, now married to Wilson) who said she had formerly been the wife of decedent and was the step-mother of plaintiffs and the other Lee children. Her testimony was to the effect that Lee formerly could write but about six years before had got so nervous he could not. He had been sick five or six years with the consumption. She had separated from him and had not seen him for a year before he died. Before that “at times he had a good
A Mr. Freeman, a neighbor, of decedent, testified he knew him for twenty-six years and that his mind was “a little weak on account of his sickness.” Witness did not know whether he could be influenced if anyone had so desired. He connected his weak mind with his bad health; saw him shortly before he left for Illinois; had a short conversation with him and “just asked him how he was; ” could not tell and did not know what condition his mind was in or whether he was able to attend to his business or not, but hazarded the suggestion that he “was a hard man to understand. His mind might have been weakened in proportion to his body, or something like that.”
Defendant introduced a witness to sustain the issues on her behalf, a Mrs. Tóllman (her husband’s aunt). She was a neighbor of decedent, and saw him a number of times before he left. She never heard of his being weak-minded and knew nothing of the kind. Her testimony was to the effect that he was “ too keen for a
Appellant testified in her own behalf to the effect that her father had not been in good health for a number of years and had had the asthma ever since she knew him, but that he had “a good sound mind.” Her father came to her house in Illinois and stayed there until he died. Her testimony did not differ materially from her husband’s and we will not reproduce it. It appears that appellant was sick during her father’s stay and her husband did nearly all the nursing of him. The Beasleys were out over $100 for medicines, funeral expenses, etc., upon which they had been paid $25 since, said sum being a portion of the rent due on the place by plaintiff Henry Lee for the year 1910. It appears further that decedent had trouble with Henry’s wife and could not stay there and before making the deed had expressed his intention of deeding the land to the child that took care of him and had told the other children in Illinois to that effect.
John Lee died eleven days after executing the deed. His exact age is not disclosed, but he is referred to as “the old man.” The case, we think, may proceed on the theory he was full of years and carried the accumulated burden of misfortune, sorrow, sickness, lonesomeness and old age. In the simple but graphic language of one witness, “he was bothered a good deal with age.” It is not clear whether some defendants are children or grandchildren of John Lee, nor is it material on appeal. As we understand the record, three of his children resided close by the place in Central Illinois where he went and remained until his death. The rest of them, possibly, resided in the neighborhood of his former residence in Christian county. His wife, Mary, from whom he was separated, did not join in the deed to Mrs. Beasley.
On such record, the trial chancellor found “the issues for the plaintiffs” on the first count. Having
(b) It will be observed that the decree does not specifically find or adjudge John Lee lacking in mental
The student curious to know the sources of our judgment in this, that or the other ruling may discern the harmonious doctrine of all the cases by consulting
The judgment is reversed and the cause remanded with directions to dismiss plaintiffs’ bill. It is so ordered.