Opinion
July 7, 1939.
DEEDS: Insanity. In an action to set aside a warranty deed made by plaintiff, a deed of trust and a trustee's deed executed by the grantee, on the ground that grantor was of unsound mind, the action instituted by her guardian, the evidence leaves no doubt of plaintiff's unsoundness of mind at the time she executed the deed.
Since the deed of trust also covers a lot belonging to one defendant, who had built a house partly on plaintiff's lot, those circumstances must be taken into consideration in granting relief.
Appeal from Circuit Court of St. Louis County. — Hon. Robert W. McElhinney, judge.
REVERSED AND REMANDED ( with directions).
Robert M. Zeppenfeld for appellant.
(1) A guardian of the estate of a person declared to be non compos mentis can institute a suit in equity in the name of his ward, by himself, as guardian, to set aside a conveyance of real estate made by ward, prior to the insanity adjudication, and also incumbrances or conveyances subsequently placed thereon or made, affecting the title thereto. Sec. 471, R.S. 1929; Webb v. Hayden, 166 Mo. 50; Judson v. Walker, 155 Mo. 79; Gibson v. Schull, 251 Mo. 487; 32 C.J., p. 747, sec. 539; Reason v. Jones, 119 Mich. 672; Hinchman v. Ballard, 7 W. Va. 152; Equitable Trust Co. v. Garis, 190 Pa. 544; 9 C.J., p. 1215, sec. 108; McKenzie v. Donnell, 151 Mo. 461. (2) Courts of equity will set aside and avoid a deed when a want of capacity to execute is shown, and especially when the other parties to the transactions had knowledge for some time of the mental incapacity of the grantor. Dickson v. Kempinsky, 96 Mo. 252, 9 S.W. 618; Snyder v. Arn, 187 Mo. 165; McKenzie v. Donnell, 151 Mo. 461. (3) Courts of equity will set aside a conveyance of land by deed where a failure of consideration is shown and a fraud perpetrated on a grantor, whether sane or insane. (4) Where a grantee of a non compos grantor, who obtained the deed with knowledge of the mental incapacity of the grantor, by fraud and without consideration, secures a loan later on said land from one who also had knowledge of the mental incapacity of the grantor, and the want of consideration and fraud perpetrated upon the grantor, the plaintiff need not put the defendant maker of said loan in statu quo, there being no privity between plaintiff and said defendant, and no benefit inuring to plaintiff. McKenzie v. Donnell, 151 Mo. 469. (5) In order to be entitled to relief from mistake in erecting improvements on another's land the mistake must be mutual. McKenzie v. Donnell, 151 Mo. 461. (6) A mentally incapacitated owner of land could not be said to be a party to a mutual mistake, because of the mental incapacity of the party. McKenzie v. Donnell, 151 Mo. 461. (7) Where the greater weight of evidence is clear, cogent and convincing, the court in equity should find in favor of the party in whose favor such evidence preponderates, and on appeal on the entire record the appellate court is not bound by findings of the trial court. State ex rel. v. Jarrott, 183 Mo. 217, 81 S.W. 879; Guinan v. Donnell, 201 Mo. 173, 98 S.W. 487. (8) Evidence that is vague or evasive is not to be considered substantial. Development Co. v. Norman, 184 Mo. 153. Taussig Luecking and Charles H. Luecking for Margaret A. Luecking and Charles H. Luecking.
(1) Adjudicating a person to be of unsound mind and incapable of handling his affairs does not show evidence of insanity or incapability on a day nine years prior to such adjudication. Rinkle v. Lubke, 246 Mo. 377, 152 S.W. 811; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 177; Kinzer v. Kinzer, 130 Mo. 129; Bartlett v. White, 272 S.W. 944. (2) Imperfect memory resulting from sickness or old age, forgetfulness of names of persons, eccentricities and oddities of habits, are not facts of such mental disease as renders a person incapable of making a deed when these things are not accompanied by proof of facts and acts, showing that the person is incapable of understanding the ordinary affairs of life or of transacting his ordinary business. Cutler v. Zollinger, 117 Mo. 101, 22 S.W. 895; Penningson v. Stanton, 125 Mo. 658, 28 S.W. 1067; Studybaker v. Cofield, 159 Mo. 596, 61 S.W. 246. (3) Witnesses who bear close family, social or business relations to the grantor in a deed possess the most favorable opportunities for observing and knowing grantor's mental condition, and usually their testimony is entitled to great weight. Vining v. Ramage, 3 S.W.2d 712, 319 Mo. 65; Holton v. Cochran, 208 Mo. 317, 106 S.W. 1035; Jones v. Thomas, 218 Mo. 541, 117 S.W. 1177. (4) When a conveyance or contract is made in ignorance of the insanity, and with perfect good faith, a court of equity will not set it aside if the parties cannot be restored to their original position and injustice would be done. Blount v. Spratt, 113 Mo. 48, 20 S.W. 969; Gribber v. Maxwell, 34 Kan. 10, 7 P. 584; Insurance Company v. Hunt, 79 N.Y. 544; Wirebach v. Bank, 97 Pa. 549; Bruner v. Johnston, 228 S.W. 92. (5) In equity cases the Supreme Court, though entitled to review and weigh anew the evidence, usually defers to trial chancellor's findings and judgment predicated on substantial evidence, where evidence is conflicting and witnesses' appearance, demeanor and credibility largely controlling. Vining v. Ramage, 3 S.W.2d 722; Bartlett v. White, 272 S.W. 954.
On May 5, 1933, plaintiff was adjudged of unsound mind, and the public administrator of St. Louis County was appointed her guardian. She then instituted, by her guardian, this action in the Circuit Court of St. Louis County, seeking the cancellation of a trustee's deed, deed of trust and warranty deed purporting to convey Lot 1 of Eckelmann's Sub-division in Section 29, Township 44-N, Range 6-East, containing 10.544 acres in said county.
Defendant Minnie Gumz is a sister and defendant Margaret A. Luecking a cousin of plaintiff. Defendant Charles H. Luecking is a son of Margaret A. Luecking.
The trial continued for quite a period of time. For reasons unexplained, the evidence was heard from time to time at adjourned sessions of the court. On March 18, 1935, the court entered judgment dismissing plaintiff's petition and she appealed.
It will not be necessary to summarize the pleadings. They present only the issues of plaintiff's sanity and the equities of the case.
The facts as shown by the evidence follow: In 1913 Bernard Eckelmann, the father of plaintiff, died. The record is silent as to the death of her mother. At the time of the father's death he owned a small amount of personal property and sixty-three acres of land in St. Louis County. Edward P. Luecking, a nephew of the deceased and a brother of Margaret A. Luecking, administered upon the estate. The six children, Frederick, Wm. F., Louis H., and Elizabeth (Lizzie) Eckelmann, and the married daughters, Lena Uhlmansiek and Minnie Gumz, voluntarily partitioned the land into six lots. Lot 1, the land in controversy, was conveyed to Lizzie. Lot 2 was conveyed to Minnie Gumz. A lot was conveyed to each of the other children. The nephew Edward P. Luecking prepared the partition deeds and took the acknowledgments of the children to the same.
Plaintiff, the youngest child and unmarried, was thirty-seven years old at the time of her father's death. At said time and as long as he lived she resided with him. As the other children grew to manhood and womanhood, they married and left home. Plaintiff attended school until she was fourteen. She worked, for a few months, as housemaid in the City of St. Louis when about seventeen and then returned to her father's home. She had school acquaintances with whom she associated during her school days, and for a number of years thereafter. She kept company with no young man but attended social gatherings and picnics accompanied either by neighbors or members of her family. Some time after the other children left the home the neighbors noticed that she made queer and unusual noises and that she developed a shyness especially of strangers. She excluded herself from others who approached or came upon the farm by retreating to the house. In other words, she discontinued her association with former acquaintances and neighbors. They regarded her as a person of unsound mind. It should be stated that during the time she lived alone with her father, she did the house work and occasionally worked in the field.
All of her brothers and sisters, except Frederick, testified as witnesses in this case. After marriage, the brothers and sisters and a few distant relatives made infrequent visits to the old home. Generally said visitors remained only for fifteen or twenty minutes to exchange greetings and inquire how the father and daughter were getting along. Of course, none of the visitors could detail conversations had with either Lizzie or her father on these occasional visits. The children, except Minnie Gumz, testified that on said visits Lizzie appeared to be of sound mind. The father's death presented the question of what should be done about Lizzie. Finally it was agreed that she would live with her widowed sister Minnie Gumz. After Minnie Gumz took charge of Lizzie they resided for sometime at different places in the county. In the meantime, and prior to 1922, Minnie Gumz, encouraged and aided by her son Albert Gumz, borrowed, at different times, money amounting to about $400 from her cousin Margaret A. Luecking. She promised Margaret that she would not mortgage Lot 2 which she inherited from her father. In 1922 Minnie Gumz decided to build a residence on said Lot 2. She applied to Margaret A. Luecking for a loan of $3300 for that purpose. She again promised Margaret that she would not mortgage Lot 2. Margaret loaned her said sum of money for which Minnie Gumz gave three notes, without security, payable to Margaret. On completion of the house in February, 1923, Minnie Gumz and Lizzie moved into the same and have continuously resided therein since that time. Later it was discovered that the house had been built on Lizzie's Lot 1, and near the line between Lots 1 and 2. Naturally Margaret A. Luecking was excited and exercised about the matter. In this situation and in August, 1924, Minnie Gumz went to the office of Edward P. Luecking in the City of St. Louis and asked him to prepare a deed conveying Lizzie's lot to her. He testified with reference to Minnie's visit as follows:
"Q. Do you know any reason why you did not handle this deal? A. She came in and asked me — she said, `I want Lizzie to give me a deed to her ten acres;' I asked her, `Where is Lizzie now? and she said, `She is locked up in the house,' and that is the reason why I wouldn't take it.
"Q. That is the reason you would not take it? A. Yes, she said she wanted Lizzie to give her a warranty deed and she said she had her locked up in the house when I asked her, `Where is Lizzie now?'
"Q. You did not want anything to do with the transaction for that reason, is that what I understood? A. Yes, sir."
In a few days thereafter Minnie Gumz engaged the services of Alfred S. Zeller, a notary public, who went to Minnie's home and took the acknowledgment of Lizzie to a warranty deed purporting to convey to Minnie Gumz Lot 1 owned by Lizzie. Zeller testified that he was at said home only fifteen or twenty minutes; that he explained to Lizzie in detail the contents of the deed and the effect of its execution; that Lizzie indicated that she understood him and freely signed and acknowledged the deed, which recited a consideration of $1. On the execution of the deed Minnie Gumz placed in Lizzie's hand a $5 gold piece as consideration for the deed. However, she immediately took possession of said gold piece and retained the same. Zeller also testified that in his opinion Lizzie was of sound mind on that day, August 14, 1924.
On cross-examination he admitted that he had no independent recollection about the matter and testified with reference thereto as follows:
"Q. The reason you say now you read this and explained it in detail is that because it is a fixed practice of yours; is that it? A. Yes, it is a fixed practice of mine.
"Q. So you figure you must have done it in this case because you do it in others? A. That is right.
"Q. You do not remember this case as an individual case where you did go into detail? A. No.
"Q. It is just because it is a practice of yours, as you claim, so you must have done it in this case? A. That is correct.
"Q. You cannot recall anything she did outside of signing this paper while you were there? You do not recall whether she was walking or sitting in a chair? You haven't any recollection about that? A. No."
In 1929 Albert Gumz, son of Minnie Gumz, solicited a loan of $6000 from Margaret A. Luecking. She did not want to make the loan. He told her that Mr. Rowe would make the loan if the same was secured by a deed of trust on said Lots 1 and 2. In this situation she loaned $6000 to Minnie Gumz, who gave her a note for $10,742, which included prior unsecured loans made by Margaret A. Luecking to Minnie Gumz. The said note and the semi-annual interest notes were secured by a deed of trust executed by Minnie Gumz November 20, 1929, on said Lots 1 and 2. The $6000 was paid to Albert Gumz.
On default, the deed of trust was foreclosed, and the trustee executed a trustee's deed dated December 1, 1932, conveying said lots to Margaret A. Luecking, who was the purchaser at the foreclosure sale.
Dr. J.A. Youngman, the family physician of Bernard Eckelmann, the father, had known Lizzie for twenty-five years prior to the trial. In substance, he testified that he made an examination of Lizzie in 1923; that she was afraid of him; that she would not answer questions and that he could not converse with her. From a history of the case and his examination he diagnosed her disease as dementia praecox, which means that after the age of puberty she had progressively lost intelligence during the ten years prior to the examination, and that she was, in August, 1924, of unsound mind and incapable of transacting the ordinary business affairs of life.
Dr. E.J. Lee, Jr., an expert on nervous and mental diseases, who examined Lizzie the day before the commencement of the trial, testified from a history of the case and his examination of her, that she was afflicted with "an old dementia praecox." On the examination he was unable to obtain from her information about anything. She did not know where she was and her mind was a blank. She knew nothing of time, place or persons. It was his opinion that in August, 1924, and for a number of years prior thereto, that Lizzie was of unsound mind and not capable of transacting the ordinary business affairs of life.
The evidence considered, we are not in doubt about the mental condition of Lizzie. For aught that appears, she never purchased the simplest household article or sold a product of the farm. Furthermore, it is not denied that it was necessary for someone to care for her after the death of the father. At the trial she was both a physical and mental wreck. On August 14, 1924, and for several years prior thereto, she was not mentally capable of transacting business involving the conveyance of real estate.
The judgment is reversed and the cause remanded with directions to set aside the warranty deed mentioned in evidence and set aside the deed of trust and trustee's deed mentioned in evidence, insofar as said deed of trust and trustee's deed purport to convey said Lot 1. It is further directed that the present value of said house built on Lot 1 be determined and that the amount of taxes paid by Margaret A. Luecking on said Lot 1 also be determined, and that the said value of the house and the amount of said taxes be adjudged a lien on said Lot 1 in favor of Margaret A. Luecking. It is further directed that such orders be made with reference to foreclosure on default of payment of the amount of money adjudged a lien on said lot as the court may deem just and proper. All concur, except Hays, P.J., absent.