SCHELLHARDT v. SCHELLHARDT

WESTHUES, Commissioner.

This is a suit to set aside a quitclaim deed alleged to have been executed by plaintiff, Olive May Schellhardt, and her husband, Julius Schellhardt, Jr., a defendant in this case, whereby they conveyed to the defendants Rudy H. Schellhardt and Pearl Luther property located at 5023 Elenore Avenue, St. Louis, Missouri. The grantors reserved a life estate to Julius Schellhardt, Jr., and unto Olive May Schellhardt "an estate for and during her natural life or widowhood". The trial court entered a decree for plaintiff and the defendants, except Julius Schellhardt, Jr., appealed.

The defendants Rudy H. Schellhardt and Mrs. Pearl Mattert (formerly Pearl Luther) were children of Julius Schellhardt, Jr., by a former marriage. Defendant Mrs. Rudy H. Schellhardt is the wife of defendant Rudy H. Schellhardt. Plaintiff named her husband as a defendant for the reason stated in her petition, that he refused to join in the petition as a plaintiff. He did not file an answer nor was he represented by an attorney. He testified for plaintiff.

Plaintiff alleged in her petition no consideration for the deed. Plaintiff also stated that her signature was obtained through fraud; that she was told by her husband "she was executing a Will when in truth and in fact she was quitclaiming her interest in fee to said real estate and improvements thereon to the children of defendant Julius Schellhardt, Jr."; that relying upon the false representation she signed the deed. The answering defendants denied the fraud as charged in plaintiff's petition.

The evidence in this case amply justifies the conclusion made by the trial court to the effect that no consideration passed from the grantees to the grantors in the deed and that plaintiff relying upon her husband signed the quitclaim deed believing she was signing a will. The evidence showed that the property in question was owned by plaintiff and her husband as an estate by the entirety. Plaintiff testified that about December 17, 1948, her husband asked her to sign a paper which he claimed was a will which had been prepared by a Mr. Bender. Note her evidence:

"A. My husband told me I was going to sign a will. He did not tell me when they was coming out, and all I knew that if I signed the will that it would be right, and that's the only thing I was told that I was going to sign a will.

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"Q. How did the paper get before you? A. Mr. Bender come out there.

"Q. Is that the real estate man? A. Yes. He came out there to the house, and I don't remember what he said or anything any more; I can't remember.

"Q. Was he alone? A. He was with Mr. Rudy Schellhardt.

"Q. Your husband's son? A. My husband's son.

"Q. They came together? A. They came together in Mr. Bender's car.

"Q. What happened? A. He come in the house and sat down, and I don't remember if he read it or what he done, and his son said, `Well, you can sign it if you want to,' and Mr. Schellhardt told me we had a will, and that's all I went by, and I didn't believe nobody but my husband.

"Q. So you signed it? A. Yes.

"Q. What did they give you? A. They didn't offer me nothing."

The evidence further disclosed that Mr. Bender recorded the quitclaim deed paying an extra fee for immediate recording. Bender then mailed the deed not to the grantees but to the grantors. Plaintiff testified the envelope was not opened and she did not learn that the paper she signed was a deed until about two years later. The circumstances were that plaintiff and her husband were having trouble with tenants which prompted them to go to the Rent Control Office and then to a lawyer. When it was decided to evict a tenant, she was informed that the paper she had signed was not a will but a deed. Plaintiff then asked defendants to reconvey which request was refused and this suit followed.

Plaintiff's husband testified that he told his wife to sign the paper and that he told her it was a will. His explanation was as follows:

"Q. Did you tell your wife that she was signing a will? A. Yes.

"Q. You knew it was a deed, didn't you? A. Well, I wasn't sure. I thought, too, it was a will.

"Q. You thought so, too? A. Yes.

"Q. Well, where did you go to have these papers prepared? A. At Mr. Bender's office.

"Q. Your son works there, too? A. Yes.

"Q. And his wife works there, doesn't she? A. Yes, sir.

"Q. Well, what did you ask for when you went in there to have these papers prepared? A. Well, just asked to make up these papers, and he fixed them up and brought them out later on.

"Q. Did you tell him that you were selling your property or that you wanted a will, or what did you tell him? A. I was figuring on a will.

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"Q. Why did you want to take your wife's right and interest out of that property and put it in your children? A. I didn't think that this would have taken my rights away. I was figuring any time I wanted to sell it I could sell it. I didn't think that part would hold me from getting rid of my own property.

"Q. Did you know then if you died and your wife remarried she wouldn't have any income or own any part of that property; did you know that at the time? A. I found that out later.

"Q. Is that what you wanted? A. No, sir.

"Q. You didn't want it that way? A. I didn't.

"Q. Well, then, were you misled, too; is that what you are giving us to understand? A. I don't say I was misled, but I didn't know that I lost my rights of not selling it whenever I wanted to.

"Q. In other words, you couldn't sell; you have since asked your son to transfer this back to you and your wife? A. Yes.

"Q. Has he refused? A. Yes."

If the above evidence is to be believed, and the trial court evidently did believe it, plaintiff was defrauded and a court of equity was authorized to enter a decree annulling the deed. Merz v. Tower Grove Bank and Trust Co., 344 Mo. 1150, 130 S.W.2d 611, loc. cit. 618 (5, 6). The grantees named in the deed did not testify. The evidence disclosed that defendant Pearl Mattert, formerly Pearl Luther, did not know the deed had been executed until this suit was filed. Rudy H. Schellhardt, however, knew of the deed because he was present when his father and stepmother signed the deed. He saw fit not to testify. Carl J. Bender prepared the deed and he was the principal witness for the defendants. His evidence contradicted that of plaintiff and her husband. He testified that he was instructed by the husband to prepare a deed; that he did so and in the first deed the fee was conveyed to the grantees and a life estate was reserved in the grantors; that he took this deed to the home of the Schellhardts and when he read it to them, the Schellhardts were not satisfied; that they informed him they wanted to reserve a life estate to the husband but that plaintiff's interest should be limited to a life estate or widowhood. When pressed for a definite statement as to whether plaintiff participated in this conversation, he gave the following evidence:

"Q. Yes, we know about that. I am asking you if you are trying to tell us that this plaintiff in this case sent you back to change the deed to cut her interest down? A. I am telling you what she said.

"Q. How did she tell you that? A. She told it where she wanted an interest in it during her natural life or widowhood, and he was to have interest in it during his natural life."

Plaintiff and her husband denied having had any such conversation. Each testified that no second deed or paper was prepared. The trial court was in a better position to judge the credibility of the witnesses. It is our duty to review the case de novo on its merits. In reading the evidence in this case, we have reached the conclusion that plaintiff had a very limited education; that she was not versed in business matters. The record justifies the assertion that plaintiff did not know the meaning of or the effect of a deed reserving in the grantors a life interest in her husband and for her an interest during her natural life or widowhood. The record disclosed no reason for paying an additional fee for an immediate recording nor was there any explanations why the deed was mailed to the grantors. If a deed was intended, it should have been delivered to the grantees. Plaintiff and her husband testified that they did not pay for the recording and did not request that Bender record the paper as he did. All this tends to support the plaintiff's theory of the case.

Defendants say the burden of proof was upon the plaintiff and to justify cancellation of a deed the evidence should be clear, cogent, and convincing. Defendants cite Stallcupp v. Williamson, 361 Mo. 440, 235 S.W.2d 318; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59; and other cases. Assuming that the burden of proof was on plaintiff and that the evidence must be clear, cogent, and convincing, we hold that the evidence in this record supporting plaintiff's theory amply met the requirements.

Plaintiff had the right to rely upon her husband's statement that the paper writing she was signing was a will. Bitzenburg v. Bitzenburg, 360 Mo. 70, 226 S.W.2d 1017, loc. cit. 1021 (3, 4).

Having reached the same conclusion as the trial court, we hereby affirm the judgment.

BOHLING and BARRETT, CC., concur.