Opinion
No. 43090.
December 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF CLARK COUNTY, W. A. HIGBEE, J.
Hilbert Veatch, Monticello, for appellant.
J. Andy Zenge, Jr., Canton, for respondents.
Lucile Tweed, plaintiff-appellant, has appealed from an adverse decree of the trial court in her action which sought the cancellation of a certain quitclaim deed which plaintiff had executed on August 6, 1951, to certain lands in Clark County, Missouri. The deed in question had conveyed to Ethel Timmons, Mary E. Edlen and Letha Lemmon, defendants-respondents, an undivided one-half interest, subject to the reservation in plaintiff of a life estate in and to the lands in question.
Plaintiff's petition alleged that, at the time that the deed was executed, because of her [plaintiff's] "confused state of mind" she was "unduly influenced by the blandishments, threats, domination, coercion and demands of defendants to execute said deed." It was further alleged that the deed was without consideration, was not delivered, and that it was null and void.
Defendants' answer denied the above allegations of the petition, and alleged that their father, W.A. Tweed, at the time of his death, on July 26, 1951, was the husband of plaintiff Lucile Tweed; that, subsequent to their father's death, plaintiff had advised defendants that, because of her [plaintiff's] affection for defendants and the affection she had for their father, that she desired to convey an interest in certain real estate to defendants; that on August 6, 1951, plaintiff proceeded to obtain legal advice and to effectuate the above expressed desire; that plaintiff on that date consulted an attorney and executed the deed in question which was delivered to defendants, and that the deed was that day recorded.
Upon the above issues the court heard the testimony adduced and rendered its decree finding all the issues in favor of defendants and against the plaintiff.
It appears from the testimony that defendants are the daughters by a former marriage of W. A. Tweed, plaintiff's deceased husband, and are their father's only lineal descendants; that a very cordial and affectionate relationship had always existed between plaintiff and defendants; that W. A. Tweed and plaintiff acquired the real estate in question at a foreclosure sale in 1937, taking title as tenants by the entirety, and thereafter resided on the property; and that at trial time plaintiff was living on the Clark County farm in question.
It also appears that plaintiff, who was 67 years of age, on a date chosen by her, went to Monticello, Missouri, with the defendants and their husbands on August 6, 1951; that plaintiff there met her sister and brother-in-law, Mr. and Mrs. Mack Burford; that in a bank plaintiff there examined a certain "locked box" which contained some abstracts of title, a certain deed and some bonds of her deceased husband; that they [the defendants and their husbands, Mr. and Mrs. Burford, and plaintiff] then drove on to Kahoka, Missouri, and went first to the Probate Court, where plaintiff advised with the Probate Judge; that all of them then went to a restaurant to lunch; that they then "voluntarily went to Mr. Breidenstein's office" [the lawyer who prepared the deed in question and a contract]; that Mr. Breidenstein prepared and read to plaintiff the quitclaim deed in question; that she signed the deed and Mr. Breidenstein took plaintiff's acknowledgment thereto in her sister's presence; that Mr. Breidenstein also prepared a contract between plaintiff and defendants which was executed in the presence of plaintiff's sister; that said contract, in part, recited "that whereas the parties hereto having conflicting interests in the estate and property of W. A. Tweed and being desirous of settling their rights in said estate and property without litigation do agree," etc.; that said contract also recited that "as part of this agreement first party [Lucile Tweed] has this day deeded to second parties [defendants] an undivided one-half interest in said real estate"; and that said contract further provided for a certain division between plaintiff and defendants of portions of certain of the personal property which had been owned by W. A. Tweed.
From the testimony of Mr. Breidenstein the court could have found that plaintiff and defendants came into his office and plaintiff employed and told Mr. Breidenstein that she wanted "some papers fixed up, and that they wanted to settle it out of court"; that in his law office "it was discussed as to the rights of the various parties. I told her [plaintiff] what her rights would be, as I understood the law to be, in Billy's [plaintiff's deceased husband's] property. She [plaintiff] said she wanted to divide it. I asked her in what shares, and she said she wanted them [defendants] to share equally — one fourth to each, She [plaintiff] asked if it could be fixed so that she could give one half interest in the farm to the girls [defendants] at her death. She asked if there was any way to fix it for them after she was dead and through with it. She asked if it could be fixed so she would not be put off of it during her lifetime. I told her it could. I told her if she wanted to settle it up she could give the girls a quitclaim deed to one half interest in the land and reserve to herself a life interest, and she could live there and do whatever she saw fit and when she was dead one half would go to Billy's girls [defendants] and the other half could be disposed of by will. I told her if she made a will giving half she could change her mind but a deed was a transaction at the present time * * * Mrs. Tweed said it would be all right and the girls said it would be all right. I asked her for a list of the personal property and Mrs. Tweed would enumerate and then she would call on Edwin and Edwin would tell what they had. I made notes and then went in the waiting room to the typewriter to draw the deed and draw the contract. * * * When I went in I started to read the contract and the conversation stopped. I explained that each was to get one fourth of the net profits of the personal property. I don't have any recollection of reading the deed, but I do know that I explained it was a deed and told her she was deeding away one half interest but reserving a life interest. * * *
"Q. Did Mrs. Tweed sign the deed? A. Yes, sir.
"Q. You took the acknowledgment? A. Yes, sir.
"Q. Do you know what you did with the deed? A. I don't know who I gave the deed to, but I am sure of one thing. I either gave the deed to Mrs. Tweed or to the one she directed me to. * * *
"Q. Mrs. Tweed didn't employ you to draw up the papers? A. What do you mean?
"Q. Hire you. * * * A. Yes, I would consider it that. * * *
"Q. You told her what she was entitled to? A. Yes, as I understood the law. I gave my opinion. * * *
"Q. Did Mrs. Tweed appear to be in an excited and highly nervous condition when she was in your office? A. No, sir."
This appeal is in an equity case wherein we review the entire record de novo and reach our own conclusions as to the weight and value of the evidence which was before the chancellor. However, we do this with deference to the findings made below, and, unless the facts before the chancellor were clearly not sufficient to sustain the findings made below, or we conclude that there is a strong preponderance of the evidence to show that the findings below should have been to the contrary, we observe the deference rule. McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 703[2]. The courts must approach a case of this character deeply conscious that the relief being asked seeks to invoke one of the most extraordinary powers of equity which ought to be exercised only in cases where the facts call clearly and unmistakably for such action.
The sole contention presented by plaintiff's brief is that defendants allege that the property in question was a gift from plaintiff to the defendants, and that, therefore, the burden was upon defendants who failed to establish that the conveyance was in fact a gift. This last stated contention was discussed and disposed of adversely to plaintiff's contentions by this Court in the recent case of Stallcup v. Williamson, 235 S.W.2d 318, 321, 321[2], wherein we said that, "In suits to set aside a voluntary deed this court has repeatedly said the burden of proof rests upon the plaintiff who seeks to set it aside." Authorities are there cited. We see no reason to depart from the reasoning or from the rule of Stallcup v. Williamson, and the prior cases therein cited.
While plaintiff testified on direct examination that when she was in Mr. Breidenstein's office she was "under pressure" and "bewildered," she testified also that Mr. Breidenstein read the deed to her before she signed it; plaintiff did not testify that she did not know what she signed, but affirmatively testified she ascertained what was in the contract when it was read to her. Upon all of the plaintiff's testimony, and upon all the testimony in the case the chancellor was justified in concluding that when the deed was executed plaintiff was perfectly normal and of sound mind, that she knew what was occurring, that both plaintiff and her sister understood the full legal import of what plaintiff signed, and that no undue influence was exercised by anyone. The trial court was further justified in concluding from all the evidence that after the deed was signed the plaintiff directed Mr. Breidenstein to deliver the deed to the husband of one of the defendants who, as agent for the defendants, thereupon took it to the Recorder's office where it was filed for record.
The facts appear above. There can be no possible question in regard to plaintiff having executed the deed. The great preponderance of the evidence supports the findings and conclusions of the chancellor and there is no ground whatever for our interference with his decree.
Upon the evidence before us and in deference to the chancellor's action, his judgment and decree must be and are affirmed. It is so ordered.
All concur.