Opinion
No. 41739.
September 10, 1951. Motion for Rehearing or to Transfer to Court En Banc Denied October 8, 1951.
APPEAL FROM THE CIRCUIT COURT OF MONROE COUNTY, ROY B. MERIWETHER, J.
Charles E. Rendlen and Rendlen Rendlen, Hannibal, for appellant.
Morris Osburn, Jefferson City, Waldo Edwards, Paul D. Hess, Jr., and Edwards Hess, Macon, for plaintiffs-respondents.
By this action plaintiffs, husband and wife, seek to set aside a deed whereby they conveyed to the defendant, Sam Brown, the appellant here, 320 acres of land situated in Shelby County, Missouri. The trial court entered a decree for plaintiffs and the defendant appealed. This is the second appeal in this case. See Wright v. Brown, Mo.Sup., 177 S.W.2d 506.
On the former appeal plaintiffs sought to have the deed declared to be a mortgage. That was the sole issue presented. The trial court denied plaintiffs relief. This court affirmed that ruling of the trial court but remanded the case to give plaintiffs an opportunity to file an amended petition. Plaintiffs did so and in the amended petition it was alleged that R. W. Wright was mentally incompetent to execute a deed; that a fiduciary relationship existed between Sam Brown and plaintiff R. W. Wright; that the deed was executed under undue influence; and last, that the consideration paid for the deed was grossly inadequate.
The opinion on the first appeal contains a rather full history of this case much of which we shall omit from this opinion. To understand fully what occurred between the parties it may be necessary to read the first opinion. The deed in question was executed on September 13, 1939. The first petition to annual the transaction was filed by plaintiffs on September 23, 1939.
On September 13, 1939, the defendant Brown took plaintiff Wright to Shelbina to the office of Fred C. Bollow. The record leaves the purpose of this trip somewhat in doubt. Brown testified that the Wrights had sent for him to seek his advice. It seems the Wrights had purchased a secondhand car and owed $125 of the purchase price for the collection of which sum suit had been filed in a justice court. The Wrights were dissatisfied with the car because they could not use it. This contention of the Wrights seems to be supported by the fact that Brown took the Wrights on many trips in his car. Brown testified that when he arrived at the Wright home the Wrights wanted to know what to do about the $125 due on the car, stating that they did not want to pay it because the car was no good. The advice Brown gave the Wrights at that time has an important bearing on one of the issues in this case. Brown testified that the Wrights wanted to sell him the farm but that he did not want the farm. His testimony with reference to the advice he gave the Wrights is as follows: "A. They said they wanted to sell me the place, that's right.
"Q. Was that the next thing? A. I don't know whether it was the next thing or not but we had a conversation.
"Q. You told them that you didn't want it? A. I might have, I don't recollect.
"Q. And you immediately began to advise them to deed it to Sallie, didn't you? A. That's right, I told them to deed it to Sallie.
"Q. Tell the Court why you advised those people to deed it to Sallie? A. They said they didn't want to pay that debt."
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"Q. All right, you began to advise them, didn't you? A. That's right. They told me they wanted to sell me the place and I told them if I was them I would deed it to Sallie.
"Q. You advised them to deed their farm to Sallie, didn't you? A. Yes, and Mabel said no, I don't want to deed it to Sallie, and I said if I was you, I would go see my lawyer." Sallie was a sister of plaintiff, Mrs. Mabel Wright.
Brown then took Wright to the office of Fred C. Bollow who was Wright's attorney in handling his mother's estate as administrator. After some argument at Bollow's office, no papers were executed and no agreement was reached. Bollow testified Wright did not want to pay the amount due on the car and did not want to pay a note given for a life insurance policy; that he advised Wright he had no defense to either debt. Brown testified that he took Wright home and that on the way he and Wright agreed on the purchase price of the farm and agreed to return to Bollow's office in the afternoon to close the deal. After the noon hour, Brown again went to the Wright home and took Wright and his wife Mabel to the office of attorney Bollow. When the parties arrived at the office, Bollow was leaving and so they talked with Bollow's father. After some argument, the senior Bollow drew a deed which Wright and his wife executed. A check for $1,050 signed by Brown was left with the senior Bollow to be delivered to Fred C. Bollow, the attorney, for the purpose of having the attorney pay the debts of the estate of Wright's mother from whom Wright had inherited the land in question. On the next morning Brown and Wright went to a bank at Clarence, Missouri, where Brown borrowed $1,950 and gave his personal note therefor. He had Wright sign a note for $850 and a chattel mortgage which Brown pledged as security for the loan of $1,950. The note of $850 signed by Wright was supposed to be in payment for some hogs Wright had purchased from Brown. It is difficult to determine who received the $1,950. Wright testified he did not get any part of it. Brown testified he did not get it. The trial court found that Brown did get it and used it to pay the note of $1,950. The note was paid by Brown within a few days. The payments were made in currency. This was fully stated in the opinion on the first appeal. It does seem strange that Brown would have Wright sign a note for $850 and a chattel mortgage on hogs and other property and at the same time pay Wright $1,950 cash as the balance due on the farm. It is also strange that Brown repaid the note of $1,950 in currency within a few days after the date of the note. Other facts will be given in the course of the opinion.
Was Wright mentally competent to transact business and to understand the execution of the deed? The trial court found that Wright was a moron and not mentally capable of transacting his own business affairs, including the transaction of the deed in question. This conclusion of the trial court was supported by the overwhelming weight of the evidence. A number of doctors testified Wright was of unsound mind. To like effect was the testimony of a number of lay witnesses. The transcript of Wright's evidence lends support to the trial court's conclusion. Wright's attorney, Bollow, had left instructions that if Wright would obtain any money to discharge the estate debts, the check should be made payable to the attorney. The instructions were followed and the attorney paid the debts. Bollow testified he did this because in his opinion Wright was not capable of taking care of the matter of paying the debts of the estate.
Was the deed made under undue influence on the part of Brown? We must answer in the affirmative as did the trial court. The record shows that even after the present suit was filed, Wright was mere putty in the hands of Brown. After the suit was filed, Wright was placed under guardianship. The record in the present case shows that Brown took Wright to Hannibal to see a lawyer and instituted proceedings to have the guardianship removed. Brown took Wright in his car and circulated petitions in aid of that suit. The record further shows that Brown had both Wright and his wife sign affidavits accusing Wright's lawyers in the present case of violating the legal code of ethics. Many of the statements in the affidavits were false. Had Wright not been under guardianship the present suit would have been dismissed under the dominating influence of Brown. Brown's own evidence so indicates. Brown's son prepared the affidavits and Brown took Mr. and Mrs. Wright to a notary to have the affidavits signed. We find that Brown's conduct in having the Wrights sign those affidavits was most reprehensible. If the statements in the affidavits were true, plaintiffs had no cause of action. The trial court also found that Brown informed Wright on the morning of September 13, 1939, that he (Wright) was in serious trouble with a woman and that unless he did something Wright would be sued for $50,000. The record contains evidence to sustain that finding. Considering Wright's mental weakness and the fact that he was much perturbed over being sued and threatened to be sued, we find him easy prey in the hands of Brown from whom he sought advice. The finding of the trial court must be sustained.
Considering the above evidence and also other facts established by the evidence, we must conclude that the trial court was correct in holding that a fiduciary relationship existed between Brown and Wright. Some of the other facts were that after Wright's mother died, Brown took Wright to the office of the probate court and was instrumental in having Wright appointed as administrator of his mother's estate. Brown signed the bond and was one of the appraisers of the estate. The evidence shows that Brown took charge of the proceedings to have Wright's guardian removed. Brown selected the lawyer; he circulated petitions to be signed and had Wright go with him for that purpose. Brown admitted while testifying that he informed the Wrights he would not help them any more unless the Wrights did something about the many lies they had told on Brown. The affidavits were signed and Brown proceeded in his attempt to have the guardian removed.
We have also concluded that the trial court was correct in holding that the consideration paid for the land was inadequate. Brown was one of the appraisers of the estate. The land in question was valued at $4,300. About the same time the property was valued at $9,600 as a basis for the inheritance tax. A number of witnesses testified that the land in 1939 was worth in excess of $8,000. The defendant's witnesses placed the value of the land at $3,500 to $5,500. The actual amount which the trial court found Brown paid to Wright was $1,125. The finding of the trial court was supported by the weight of the evidence.
What we have said should be sufficient for a disposition of this case. However, appellant presented two points which we desire to answer. Appellant relies upon the theory of res adjudicata. He says that it was decided on the former appeal, 177 S.W.2d 506, that the transaction involved was a deed and not a mortgage; that the trial court nevertheless again tried that issue. We cannot agree. This court did decide that plaintiffs could not recover on that theory but this court remanded the case for the purpose of permitting plaintiffs to file an amended petition. Plaintiffs did so. We took appellant's brief as authority for the issues presented at the second trial under the new petition. Appellants stated, "The plaintiffs limited their claims in the case submitted to the trial court to four alleged matters, namely: (1) mental incompetency of Robert W. Wright; (2) fiduciary relationship; (3) inadequate consideration; (4) undue influence." As to those matters the plea of res adjudicata must fail.
Appellant also asserts that "Plaintiffs are not before the court with clean hands." Appellant says that the guardianship proceedings were instituted merely as a part of a scheme to win the lawsuit. It is not necessary for us to hold that a guardian should have been appointed. However, we call attention to the fact that the trial court in this case found Wright to be a person of unsound mind and incapable of handling his affairs. We do say the record shows good reasons existed for the appointment of a guardian.
Appellant asserts further that Wright conveyed his land to cheat his creditors. If that is true, the idea was planted in Wright's mind by the appellant Brown. Brown so testified. He said his advice was for the Wrights to convey the land to Mrs. Wright's sister. This the Wrights refused to do. The Wrights, it is true, did not want to pay for the car they had purchased because it was no good. The record shows the car could not be used. However, the trial court found that appellant Sam Brown added to the worry of the Wrights by telling them of the trouble Wright would have with a certain woman. In that situation the defendant Sam Brown is in no position to take advantage of the alleged intended fraud on part of Wright which was of his (Brown's) own making. Bovard v. Bovard, 352 Mo. 953, 180 S.W.2d 592, loc. cit. 595(4, 5). Considering the circumstances in which Brown obtained the deed, the price paid therefor, and the fact that Wright was found by the trial court to be a moron and incapable of understanding the transaction of the execution of the deed in question, we are convinced the trial court was justified in setting aside the deed.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.