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mere delusion. There was no fraud, actual | within him for human love and daughterly or constructive. Fraud being odious, the ministration. No respectable case can be presumption is against it; hence, however found contra, and we know of no rule of difficult it is to be proved, it still must be law impairing the conveyance on the score proved before a court of conscience can set of undue influence where (as here) there is aside a deed on the theory of its existence. no satisfactory proof by direct or circumFraud being infinite, chameleon-hued, pro- stantial evidence that undue influence was tean-shaped, no court of equity has ever exercised. On this record the thing was not been so unwise as to give rope to fraud doers done in a corner, this father knew what he by laying down a hard and fast definition was doing and wherefore, did what he wantof fraud, thereby enabling scamps to work ed to do, as he wanted to do it, and what at will outside the lines of the definition. the law permitted him to do. Up to that To the contrary, fraud is left undefined ex- time, without let, hindrance, or question, he cept in the most flexible general way, so had. transacted all his business and looked that it may meet the mould and pressure of out for himself with good sense. All the the facts of the concrete case. But there evidence worth while indicated he was capacan be no fraud of a grantee against a gran- ble of doing that. We sit to enforce fair tor in the sense of a court of equity, unless and just contracts, not to abrogate them. there are "acts,, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed," and are injurious to the grantor, or by which "an undue and unconscientious advantage is taken of" grantor. 1 Story's Eq. (13th Ed.) 187; Howard v. Scott, 225 Mo. loc. cit. 712, Speaking to the question of incapacity, un125 S. W. 1158. Measured by that standard, due influence, fraud, and lack of considerawho could put his finger on the fraud of tion, we dismiss them one and all by stressgrantee, or upon fraud besmirching the handing the singular fact that the two sons, plain(if any hand there was) instrumental in tiffs here, shortly before deliberately planned bringing her title? to take the land by a grant from the father on the same consideration, care, and support. That effort is an implied admission on their part of propriety and validity; i. e., capacity to convey, sufficient consideration, absence of fraud, power of will to resist undue influence. How comes it that a grant in their judgment valid then becomes invalid now with a mere change of name and sex in the grantee? Blowing hot and blowing cold out of the same mouth does not commend itself in a court of conscience.

(e) The finding of the chancellor that the conveyance was without consideration was also palpably erroneous. There was a good consideration and a valuable consideration (hence a sufficient consideration), as those terms are defined in the books.

(f) We now come to a phase of the case not to be passed without observation. Respondents stand mute here and file no brief. Why so? The court was open. The rules invited them. We sit to hear, and then decide, whereby due process of law is accorded agreeably to the law of the land. Ex parte Nelson, 251 Mo. loc. cit. 103, 157 S. W. 794 et seq. In De Paige v. Douglas, 234 Mo. loc. cit. 81, 136 S. W. 345 et seq. (q. v.), we had occasion to comment on the unwisdom of that course. On this record it is fair to surmise that the intentional failure to follow up their judgment and defend it from assaults (invited on the very face of the record by the weakness of the evidence educed below, as presented in appellant's brief, duly served) was intended by respondents as a tacit admission that it could not be defended. We may be in error in that surmise, but, as the case has already broken on the merits, it will do to say that the very fact such surmise springs in the court's mind points a moral that the observing may draw for them. selves. "Verbum sat sapienti."

The student curious to know the sources

[12] (d) Neither can the decree stand on the foot of undue influence. The case is bare of such fiduciary relation as would raise a presumption of undue influence and would throw the burden on the grantee in the deed to sustain it. Not only so, but the existence of undue influence is not shown, let alone the exercise of it. Certainly the mere fact that the deed was made has no tendency in that direction, nor the fact that grantee was grantor's daughter, nor the fact that "love and affection" is set down as a causal factor. The case does not demand extended consideration in this particular. The facts are simple and few. An old father, sick, miserable, homeless (we use the word in its sentimental phase), owning a small tract of broken land in Missouri, finds his last resting place this side the grave with his daughter in Illinois. To all intents and purposes an outcast in the clutches of a dread and communicable disease, his idea had been that the law would give the land to the child with whom he died and who ministered to him at the close of his days. He concluded to make a conveyance to his daughter to anticipate what he thought the law itself should do. He contracts with the daughter for care and attendance during life. She promised it, the father conveyed and she performed. It is only by extreme grace that it might be inferred that this tract of land was the whole of his estate. But assume it was, its value was not disproportionate to the possible obligation, and we shall not write the law to be that he did not have the right to convey it to appellant under the sharp difficulties be

ruling may discern the harmonious doctrine, sons last named, are the only heirs of George of all the cases by consulting Howard v. Scott, supra; Baldwin v. State, 12 Mo. loc. cit. 235 et seq.; Southworth v. Southworth, 173 Mo. loc. cit. 72, 73 S. W. 129 et seq.; Studybaker v. Cofield, 159 Mo. 596, 61 S. W. 246; Pennington v. Stanton, 125 Mo. 658, 28 S. W. 1067; Anderson v. Gaines, 156 Mo. 664, 57 S. W. 726; Keithley v. Keithley, 85 Mo. 217; Hughes v. Rader, 183 Mo. 630, 82 S. W. 32; Black's Law Dict. tit. "Consideration"; Troll v. Spencer, 238 Mo. loc. cit. 101, 141 S. W. 855, Ann. Cas. 1913A, 276 et seq.

Creason, who left a will which does not, so far as any purpose of this suit is concerned, change the course of their inheritance, and we will accordingly ignore it. The grounds stated in the petition for the relief asked are mental incapacity of the grantor and undue influence over him by the grantee.

The judgment is reversed, and the cause remanded, with directions to dismiss plaintiffs' bill.

Mr. George Creason died January 21, 1906, aged 88 years. His wife had then been dead about 14 years. His daughter, Mrs. Hennegar, the defendant, was married quite young, and had two children. Her husband then died, and she came with her children to reside with her father and mother about 1870, and continued to reside with them during the entire 35 or 36 years intervening between that time and her father's death. Mr. Creason, although uneducated, was a man of great force and intelligence. Mr. Forrester, his brother-in-law, a minister of the gospel, testified for plaintiff, and de

It is so ordered. All concur.

scribed him as follows:

STANFIELD et al. v. HENNEGAR. (No. 15989.)

(Supreme Court of Missouri, Division No. 1. June 2, 1914.)

1. DEEDS (§ 211*)-VALIDITY-EVIDENCE OF MENTAL CAPACITY.

In a suit to cancel a deed from a father to his daughter, evidence held to sustain a finding that the father was of sound mind when he exe

cuted the deed.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*]

Mr. Creason's health began to fail in consequence of some kidney or bladder trouble, which also seemed to affect his heart, and he had attacks of difficult breathing, although under crdinary conditions it did not interfere with his ability to get around and attend to his business. During this time he frequently expressed his intention to convey to Mrs. Hennegar the land in controversy here, which he described as the west part of his home place, including the buildings and well, for the purpose of securing her a home. He called her Kittie, and said that he wanted her to have that home, that she had been there with him, and that he in

tended that she should have it. He had one of his bad spells, which began about the 28th of May, 1905, when Dr. Brown was called to attend him. When these came he could not lie down with comfort, and would sit in his chair on the porch. He was broken up nervously, and was afraid of death, saying that he did not care about dy

This suit was begun in the Greene county circuit court September 3, 1907. Its objecting, but that it was the pain and punishment is to cancel a deed made by George Creason, that preceded it which he dreaded. Mr. deceased, in his lifetime, which purports to Wood, a neighbor, called to see him, and he convey to his daughter, the defendant, 47% asked him to see Judge Bristow, who seems acres of land, being the west part of the to have been a neighboring justice of the home farm owned and occupied by him dur- peace, and to ask him to come around and ing his life with buildings thereon. The make the deed. Squire Bristow came on plaintiffs are Susan Stanfield and Elizabeth May 31st for that purpose. Mr. Forrester Morton, two daughters of George Creason, and Dr. Brown, who was making his call that the plaintiff Thomas J. Creason, one of four day, were there, as were also Thomas and living sons, and also the children of two de- Robert Creason. The boundaries of the tract ceased daughters. The sons not parties to he desired to convey to Mrs. Hennegar were the suit are Robert J. Creason, James H. very irregular, and it was questionable how Creason, and John T. Creason. These plain- much land off the west side it would take to tiffs and defendant, together with the three include the buildings, and the boys stepped

2. DEEDS (§ 211*) — VALIDITY - EVIDENCE UNDUE INFLUENCE.

In a suit to cancel a deed from a father to one of his daughters, who lived with him and cared for him, etc., evidence held to sustain a finding that the deed was not procured executed by undue influence.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 8 637-647; Dec. Dig. § 211.*]

3. DEEDS (§ 196*)-VALIDITY-UNDUE INFLUENCE-PRESUMPTION.

"Previous to his affliction, I don't think I ever knew a common man, just an ordinary and as much business qualifications as George uneducated man, who had as strong a mind Creason had. penetrating mind, and he kept his business He had a discerning mind, a straight."

That a daughter resided with her aged father as his housekeeper, companion, and nurse, did not raise a presumption that a deed, whereby the father conveyed to her one-half his farm, was procured executed by undue influence.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 587-593, 649; Dec. Dig. § 196.*]

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Suit by Susan Stanfield and others against Sarah J. Hennegar. Judgment for defendant, and plaintiffs appeal. Affirmed.

it off and ascertained to their satisfaction, | same as before her marriage, and all helped

and apparently to the satisfaction of their to take care of her.

father, where the line should run. Squire Bristow then began to struggle with the description but gave it up. Dr. Brown, who thought he could do it, then tried and was unable to get it right, and the result was that they advised Mr. Creason to get a lawyer to write the deed. He was considerably perturbed at this, saying, in substance, that he was afraid he might die before the next day. He was acquainted with the Gideons, and at first talked about getting Tom Gideon to do it, but at Mr. Forrester's suggestion he told his son James to go and get Mr. Murrey. James had brought him the blanks for the purpose a month or six weeks before, and had talked over with him what he wanted to do, and understood that Mrs. Hennegar was to have the west side, and Charley was to have the other side of the place, and also a building lot near the barn and house, so that he would be handy to them, and was to pay the girls $1,200, which was about its fair value, and was to be secured on the land. It was arranged before they separated that Squire Bristow was to return the next day to take the acknowledgment of the deeds. James took the old deeds into town the next morning, and had Mr. Murrey write the deeds to Mrs. Hennegar and Charley, and

brought them back and left them with his father, who executed them the same day in the presence of Mr. Forrester and some of the family, and the acknowledgments were taken by Mr. Bristow. The object of making the deed to Charley was twofold. It enabled him to build on the land and be near his mother, and it converted the land into money for distribution, as had been already provided in his will. James testified that his father sent for him and told him he wanted him to go to town and get the deeds, and that he said:

His father said:

"What is the matter with you?"

"Q. Now, what do you say in reference to his mental agitation; what was his mental condifunctional derangement of his brain, and it was tion? A. Well, his mental condition was but a due to a poor circulation of blood in his brain. Mr. Creason had what we call athromatic degeneration of the blood vessels; hardness of the blood vessels. He complained of blindness and dizziness; couldn't see. Sometimes he couldn't see well enough to hardly tell who it knew certain ones; it seemed like sometimes he was. At those times we would ask him if he would and sometimes he wouldn't. This was during the worst part of his spell. I think it was the latter part of May, or first part of June. We call that mania; that was a mitral delire. He would talk out of his head some

"Father, if nothing else will do you, I guess times, too; talk to himself; it was a state of I can come and get the old deeds."

his brain, senile changes, I think, more than anything else, at his old age. Mr. Creason had heart trouble, too, but then the trouble with his heart was due to the same thing that hardened these blood vessels. The valves had strong. On the occasion when Mr. Bristow and become stiffened, and his circulation was not Mr. Forrester and these members of his family were there, I was uneasy about him because he seemed to be very much agitated. He was matter for them to get a little business attendcrying, and it seemed like it was a difficult ed to. I was afraid that he would have a rupture of a blood vessel in his brain, or heart him down; tried to get him to sit down and failure, or something like that. I tried to quiet keep quiet, and of course proceeded to give him something to quiet him, medicine. I don't remember exactly how long I stayed that day. I wouldn't mark any detention unless it had been over an hour or probably two. The 31st of May I was not there over a couple of hours,

I

guess.

James said:

"When it comes to a show-down, I will tell you. I don't believe it is right the way you are going to make the deeds."

During this talk Mrs. Hennegar came in and wanted to know if he (James) was going to beat her out of it, and he told her, "No." He testified that he said:

"I told her I thought it wouldn't beat her out of it if we raised her children and took care of them, and I didn't think she ought to have it. It was worth something to raise the children."

Dr. Brown, the attending physician, had known Mr. Creason ever since he (the doctor) was a lad, and was his physician the last years of his life. He testified as follows:

He further testified that when Mrs. Hennegar came to her father's she had two children, Charley and a daughter two or three years old. She came after her husband's death, and had some property and helped support her children as well as any of them. She made her home there and helped the

"I treated him in a little spell before his last spell; his physical condition in May and June, tions when Mr. Bristow and Mr. Forrester 1905, was very bad. I heard some conversawere there about some deeds. My first visit was made May 28th. I was called to see him; called, I think, late in the afternoon, stayed all night with him; was there the 29th twice, remained almost all night. Was there twice on the 30th, memorandum in book, 'detained'; stayed some time until he got quieted; called next hours, called once June 1st, stayed an hour or day once, remained perhaps as much as two two. I visited him until June 19th. Q. Now, independent of your book, you recollect having Now state to the court what was George Creabeen there on those occasions? A. Yes, sir. Q. son's physical and mental condition at that time, along about the time you were called there and up to June 1st? A. Well, at that tally and physically; it was very hard to do time he was in a great state of agitation, menanything with Mr. Creason at that time; that is, to control him to get him to obey orders such as we thought best for him. It was hard to keep him in the house; he wanted to get outdoors, and he would stand and hold to a post, or we would have to hold him sometimes to keep him from falling, and he was continually talking about dying, and crying and

as

"Q. That was the condition in which you found him that day? A. Yes, sir. On the 1st day of June it was a good deal the same, about then I don't think there was a time that I the same except not so much excitement, but was ever there during that bad spell of sickness

but what he would cry and have a good deal to say about things, about dying, and first one thing then another that showed he was extremely distressed in his mind. On the 31st of May something was said about the manner of attending to that business to me, and I told them that I thought they had better put it off until to-morrow and see a lawyer about it. I didn't think they could attend to it, and I didn't like for Mr. Creason to be agitated any longer, and I didn't really think he was in a

condition to attend to business.

"Q. Now, from your knowledge of his condition physically and mentally at that time, state to the court whether or not, in your judgment as a physician, he was capacitated or incapacitated to attend to business on that day. A. No, I don't think he was competent to attend to business on that day. He was very childish most of the time along those days. Mr. Creason's brain, I think, was slightly demented; that is another way of speaking of insanity. He was not a crazy man from brain disease. The disturbances that were in his brain were functional, I think, on account of bad circulation, and then, another thing, he had very difficult breathing. He had what we call cardiac asthma; that is, asthma associated with bad action of the heart, and then in that condition of course his blood would be overcharged with carbonic acid gas, and then he was intoxicated from that to a certain extent. That would make him somewhat delirious. His bowels were swollen, but that was on account of the inactivity of the bowels, obstinate constipation. It was a very difficult matter to get them to operate. Sometimes there is a toxic mate

rial that is absorbed in the bowels that causes fever, and by the prevention of elimination on account of inactivity of the bowels there wouldn't be a sufficient amount of waste carried out, and that would intensify the fever. He got pretty thin during the progress of his trouble, his face was swollen most of the time; his lips puffed; just as long as he had that difficult breathing he had some puffiness about the face.'

Mr. Creason's last sickness, or "spell" as it was called in the testimony, began the following November and lasted until the time of his death. About the 1st of December Mrs. Hennegar "broke down" in health and went to her daughter's to recuperate, and a family meeting was held to determine who should take care of the father. Thomas and his wife came to the house and stayed a while, but the wife could not stand the presence of the suffering, and had to give it up. Then Robert and his wife came, and stayed until their father's death in January.

The relation of Mrs. Hennegar to her father is described in appellants' printed argument as follows:

"The defendant had lived in his household for many years. She was his daughter, his housekeeper, his companion, his nurse much of the time, and ministered to his health, wants, and comfort, and wielded a great influence over him. She also attended to portions of his business."

The court, upon the pleadings and evidence, dismissed the petition and entered final judgment for the defendant, from which an appeal was taken to the Springfield Court of Appeals, from which it was transferred to

this court.

Wright Bros., of Effingham, and T. H. Jones, of Springfield, for appellants. Hamlin

BROWN, C. (after stating the facts as above). [1, 2] 1. While, in their fifth assignment of errors, the appellants say that the evidence clearly shows that George Creason was of unsound mind when he executed the deed they now seek to set aside, they have, in their brief, neither set forth their reasons for this claim, nor have they attempted seriously to support it by argument. As a matter of fact, it clearly appears in the evidence that the execution of the deed was in accordance with a fixed purpose which he had entertained when there could be no question as to his mental capacity, and that when, in the progress of a disease that continually kept before him the apprehension of a fatal result from the failure of the degenerated tissues of his arteries, he was seized with an attack of more than usual violence, it was natural that he should hasten, and he did hasten while there was yet time, to carry out that purpose. We have carefully read the evidence, and find no hint in it that, although he was nervously affected by the cerebral conditions that characterized the attack, he did not know exactly what he was doing, understand perfectly its nature and consequences, nor that he swerved a hair's breadth from his deliberately formed purpose. We have quoted in full the testimony of his attending physician to show that his reluctance to have his patient transact the business arose from fear of the consequences rather than from doubt as to his understanding of its nature and object, as well as of the details necessary to its accomplishment. So far as this point is concerned, we will follow the example of the appellants' counsel, and dismiss it from our consideration without further argument.

[3] 2. The real question presented is included in the assertion that the law presumes that the deed was the result of undue influence growing out of the relation of the defendant to her father as his housekeeper, companion, and nurse, and her ministration to his health, wants, and comfort, and the great influence over him that would naturally flow from such relation. We cannot have the benefit of her relation of these things, because the tongue of the one other person who knows them in all their details is silenced by death; but it is disclosed in evidence that the young mother did not come into his household as a mendicant, but that she brought property with her which she contributed to the general fund. We know something of the burden she sustained during the sickness of her father from the fact that, when it broke her down, and her sisterin-law undertook to take it up, she could not endure the strain.

We are glad that the law does not look upon the faithful performance of filial duties

of this character as an element of fraud. Nor does it lay its restraining hand upon the substantial recognition of these affectionate

193, 117 S. W. 1; Bonsal v. Randall, 192 Mo. | hence they were not demurrable, though it ap525, 532, 91 S. W. 475, 111 Am. St. Rep. 528; peared that more than three years had elapsed. Hamilton v. Armstrong, 120 Mo. 597, 25 S. W. Actions, Cent. Dig. §§ 146-150; Dec. Dig. § [Ed. Note.-For other cases, see Limitation of 545; Turner v. Butler, 253 Mo. 202, 161 S. 33.*1 W. 745, 749. While it looks with disfavor upon the improper use of influence so acquired, there is no evidence in this case that Mrs. Hennegar attempted to influence her father in this respect. No word of hers upon the subject is mentioned in evidence other than the natural and impatient answer to her brother, who was expressing to her father his dissatisfaction at the direction he had received with reference to this deed, and that included no solicitation or argument in her own behalf. We are satisfied with the finding and judgment of the trial court upon these questions.

3. We do not want to be understood as

deciding or considering any question that might arise with reference to the absence from this suit of parties who represented George Creason by inheritance with respect to this deed. No point is made upon it in the record or argument, and its examination is not necessary to the decision of the case upon the broader ground we have taken.

In accordance with the foregoing view the judgment of the Greene county circuit court is affirmed.

PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the All concur; BOND, J., in result.

court.

PUTNAM COUNTY v. JOHNSON. (No. 16650.) (Supreme Court of Missouri, Division No. 1. June 2, 1914.) 1. COUNTIES (§ 89*)-OFFICERS-MONEY RECEIVED RECOVERY BY COUNTY-PLEADING PETITION.

In an action by a county against a former county clerk, counts alleging that defendant became plaintiff's agent and remained such agent during certain years, during which time he received, as agent for plaintiff, a specified sum which he had failed to pay over on demand, and that during such years he received from plaintiff, as its agent, a certain sum which he had failed to pay over on demand, stated good causes of action for money had and received.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 118, 135, 136; Dec. Dig. § 89.*] 2. LIMITATION OF ACTIONS (§ 33*)-LIMITATION APPLICABLE-ACTS BY VIRTUE OF OFFICE.

3. LIMITATION OF ACTIONS (§ 33*)—PLEADING -RAISING BY DEMURRER.

In an action by a county against a former county clerk, counts alleging that defendant wrongfully exacted and obtained from the county $2,009.85, made up of items therein set out, and had only paid back $418.86, leaving unpaid $1,590.99, which he had refused and neglected to pay after being ordered and directed to do so, did not state causes of action for fraudulently receiving the money, so as to render inapplicable the three years' statute of limitations (Rev. St. 1909, § 1890), applying to actions against officers upon liabilities incurred in their official capacity and in virtue of their office, and hence they were demurrable where they showed that more than three years had elapsed.

[Ed. Note.-For other cases, see Limitation of

33.*]

Actions, Cent. Dig. §§ 146-150; Dec. Dig. §
4. LIMITATION OF ACTIONS (§ 33*)-LIMITA-
TION APPLICABLE-ACTIONS "BY VIRTUE OF
OFFICE."

of that due him for making out and computing
Money received by a county clerk in excess
tax books, for salary, for earnings wrongfully
reported as having been received from the state
and not in accordance with the state report, for
school taxes erroneously charged twice and
wrongfully exacted and retained, for making
financial statements, and for commissioners'
orders was received in virtue of his office, with-
in Rev. St. 1909, § 1890, requiring suits against
officers for liabilities incurred by the doing of
an act in their official capacity, and in virtue
of their office, to be brought within three years.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 146-150; Dec. Dig. § 33.*

For other definitions, see Words and Phrases, vol. 1, p. 936.]

Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.

Action by Putnam County against John D. Johnson. Judgment for defendant on demurrer, and plaintiff appeals. Reversed and remanded.

D. M. Wilson and J. W. Clapp, both of Milan, and E. A. Jarman, of Unionville, for appellant. N. A. Franklin and J. C. McKinley, both of Unionville, for respondent.

GRAVES, J. The plaintiff, being cast below upon a demurrer to its petition, suffered final judgment to go, and from such judgment has appealed.

In an action by a county against a former county clerk, counts in the petition alleging the receipt by him, as agent for plaintiff, of sums which he had failed to pay over on demand, and not state causes of action subject to Rev. St. 1909, § 1890, requiring actions against an officer upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, to be brought within three years, since county officers may be the agents of the county for matters beyond those of the office, and the counts did not proceed on the theory that the money was received in virtue of his office, and

The petition, omitting therefrom the items of account in the first count thereof, reads: "Plaintiff for its third amended petition, leave of court first had and obtained, states: That it is a political subdivision of the state of Missouri, and as such has authority to bring this suit. That, at the general election held in 1898, the defendant was elected county clerk of Putnam county, Mo., for a term of four years, and that on the 1st day of January, 1899, he gave bond, qualified and entered upon the discharge of the duties of his said office, and continued to hold said office until the 1st day of January, 1903. That, at the general election in 1902, the defendant was re-elected to the said office of county clerk of said county for another term of four years, and that on the 1st day of January,

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