author: WELBORN, Commissioner.

text:
    Beecher PRIOR et al., Respondents, v. Estil Dean PRIOR et al., Defendants, Rowena Hager et al., Appellants.
    No. 51227.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Joe Beavers, Larry L. Zahnd, Beavers & Zahnd, Maryville, for respondent, Arda Jean Merrill.
    John E. Downs, Don Pierce, Downs & Pierce, St. Joseph, for respondent, Estil Dean Prior.
    J. F. Allebach, Albany, for appellants.
   WELBORN, Commissioner.

The primary object of this action is to quiet title to a 191-acre farm in Gentry County on the theory that the will of Henry W. B. Myrick, insofar as it purported to dispose of the farm, was void for violation of the rule against perpetuities. Partition was also sought. The trial court found the will void insofar as the disposition of the farm was concerned and quieted title accordingly, and ordered partition. This appeal followed.

On January 13, 1937, Henry W. B. My-rick, a minister of the Christian Church, 80 years of age, and his wife, Cynthia, executed as their joint will the following document, prepared and written in longhand by Mr. Myrick:

“We, Henry W. B. Myrick and Cynthia A. Myrick, his wife do make and declare this instrument of writing to be our last will and testament, hereby superceding and revoking any or all wills made by us, or either of us, prior to the date on which this is signed. And we will and appoint that upon the death of either of us the survivor shall act as administrator of the estate, to serve without giving bond.
“Section 1.
“We will our house and lots, all of Block 2, in Frisbie’s addition to the town of Gen-tryville, Mo., to our daughter, Rowena Hager, to be hers absolutely.
“Section 2.
“We have a farm adjoining the town of Gentryville on the South side, described as follows:
[description omitted]
“Containing, More or Less . . . 191 acres
“This farm is divided into two almost equal parts by a line fence running due North and South from the edge of Gentry-ville to Grand river on the South. At our death, both of us, this tract of farm land is to become the possession of our two daughters, Mrs. Sybil Prior and Mrs. Rowena Hager. Mrs. Prior is to have the West half of this land and Mrs. Hager the East half. Each of them, and her body heirs after her, is to retain use and possession of her portion of this land until both of our daughters, Sybil Prior and Rowena Hager shall have died. When both daughters have died then the land is to become the joint possession of the then living grandchildren of ours, the body heirs of the said Sybil Prior, Rowena Hager and of Zenobia Mow-ery, a daughter of ours who is now deceased. These grandchildren may divide it equally among themselves any way they choose. And further, it is provided that both daughters, Sybil and Rowena, are to have access to, and use of, any timber anywhere on said tract of land, for use as fuel, or building of cribs, etc.
“Section 3.
“We have some registered, tax exempt Treasury, Farm Loan and Postal Savings Bonds. We will that Eight (8) thousand dollars worth of those bonds, now in safe keeping with the Gentry County Bank, shall be kept there or elsewhere for safety, and as they come to maturity from time shall be reinvested in other government bonds or Postal saving securities. And we will that during the lives of our daughters, Sybil and Rowena, the interest from these bonds shall be used to pay the taxes upon the farm described in Section 2 of this will, and also to pay the taxes and fire insurance on the two homes of our daughters, Sybil and Rowena, located in Gentryville, Mo. And if in any year the interest received from the bonds is not enough to pay these taxes, then the daughters may draw upon the principal to cover the lack. And any year when the interest on the bonds is more than enough to pay the taxes and insurance, let the daughters, Sybil and Rowena, divide the surplus equally between themselves. And, when these two daughters can agree to buy a tractor, or any other farm tool which they can use in cooperation, let them do it, or use some of the bond money to keep up division fences, etc. And when they have both died, if any of this $8,000 bond money fund remains let it be divided equally to our then living grandchildren. Provided, further: That these two daughters, by agreement, and in equal amounts, may use of this money to repair houses, or other necessary uses.
“Section 4.
“When we, Henry W. B. Myrick and Cynthia A. Myrick die, we direct that a bond, Land or Federal, amount One (1) thousand dollars, now kept by Gentry County Bank with the others described in Section 3, shall be sold and divided to our grandchildren, the heirs of our deceased daughter, Zenobia Mowery, in amounts as follows: to Pearl, $5.00: to Vivian, $195.-00: to Dolly, $800.00 for her and her brother Wardie. And if Pearl be dead, her share ($5.00) go to Vivian, and if Vivian be dead, the whole $1,000 shall go to Dolly, for her and her brother Wardie, who is her care.
“Section 5.
“As long as we both live, or the survivor, we will use and supervise the real and personal property herein described, and when both of us have died our two daughters, or the survivor, shall be the administrators of this estate, and if they fail to agree about anything they may call some third person to act with them and decide the point. Or they may ask the Public Administrator to take charge of the estate. And these two daughters, Sybil Prior and Rowena Hager, shall serve without giving bond.”

Mr. Myrick died on February 12, 1937, and on March 1, 1937, the foregoing document was admitted to probate in the Gentry County Probate Court. Title to the farm in question was in Mr. Myrick alone. His widow died in 1952. Mr. Myrick was survived by two daughters, Sybil Prior and Rowena Hager. He was also survived by ten grandchildren, one the son of Sybil Prior, five the children of Rowena Hager and four the children of Zenobia Mowery.

Following the death of Mr. Myrick, Sybil Prior took possession of the west half of the farm and Rowena Hager of the east half. Sybil Prior died on March 17, 1963, leaving a son, Beecher Prior, surviving. (Beecher Prior, by a separate count of the petition in this case, sought to recover possession of the west half of the farm in the event that the will was held valid. The trial court, in view of its findings, concluded that this count was “moot.”) Arta Jean Prior Merrill and Estil Dean Prior, children of Beecher, were the residuary devisees and legatees under the will of Sybil Prior.

Arta Jean Prior Merrill, by her petition filed November 29, 1963, sought to quiet title in herself to an undivided i/£ interest in the 191-acre farm, on the theory that the provision of Mr. Myrick’s will, purporting to dispose of it, violated the rule against perpetuities; that, consequently, as to the farm, Mr. Myrick died intestate, and that, upon his death, his daughter Sybil Prior, became vested with fee simple title to a I/3 interest in the farm, which, by Sybil’s will, passed to Arta Jean and her sister Estil Dean in equal shares.

Named as defendants in the action were Estil Dean Prior, Rowena Hager, who was still living and her five children, and the four children of Zenobia Myrick Mowery and their unknown heirs, etc.

Estil Dean Prior filed answer, joining in the prayer for relief sought by plaintiff. Rowena Hager and three of her children, by their joint answer, denied plaintiff’s claim and asserted the validity of the will, alleging that its meaning, gathered from its four corners, was that Sybil Prior was to have a life estate in the west half continuing in the bodily heirs of Sybil as long as Rowena Hager might live following the death of Sybil, and Rowena was to have a life estate in the east half, with fee simple title fully vesting, share and share alike in the bodily heirs of testator’s children living at the moment of the death of the last daughter of testator, and that so construed the will required vesting within the limits prescribed by the rule against perpetuities.

The trial court found the issues in favor of plaintiff and entered judgment quieting title in Rowena Hager as to an undivided 1/3 interest, in four grandchildren of Zenobia as to a 1/12 interest each and in Arta Jean and Estil Dean, granddaughters of Sybil Prior, as to a Ye interest each. A judgment of partition was also entered. Rowena Hager and three of her children appeal from the judgment so entered.

On this appeal, appellants contend that the will, properly construed, devised an absolute interest in the farm to the grandchildren of testator living at the time of the death of the last survivor of his two daughters and that the interest of the grandchildren was certain to vest within the limits of the rule against perpetuities. Respondents, on the other hand, contend that the will gave the grandchildren only life estates, with either an implied remainder in fee in the heirs of testator’s “then living grandchildren,” or devolution of the fee by intestate succession at the termination of the life estates, and that under either of such alternatives the fee might not vest within the limits of the rule against per-petuities.

We approach the question here presented under the statutory injunction that we have a due regard to “the directions of the will, and the true intent and meaning of the testator * * Section 474.430, RSMo 1959, V.A.M.S. In order to arrive at such intent, our primary guide is the will itself, considered in its entirety or, as frequently stated, “its four corners.” Gehring v. Henry, Mo.Sup., 332 S.W.2d 873, 876 [2-4]; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653. In the event of ambiguity in the instrument itself, there are certain auxiliary rules of construction which are applied in order to resolve the ambiguity in the light of the testator’s intention. Walters v. Sisler, Mo.Sup., 371 S.W.2d 187. One such rule, sometimes referred to as a “presumption,” gives preference to a construction which will prevent partial intestacy, rather than one which will permit it, if such construction may reasonably be given. Gehring v. Henry, supra, 332 S.W.2d 878 [11] ; Shaw v. Wertz, Mo.Sup., 369 S.W.2d 215, 218 [8-11]; In Re Garrison’s Estate, Mo.Sup., 374 S.W.2d 92, 94 [1, 2]. That rule is strongly relied upon by appellants who urge that Mr. Myrick, having undertaken the “solemn act of writing his last will and testament” clearly “attempted to dispose of all of his property” and that, as to the farm, his intention was to dispose of it completely by vesting fee title in his grandchildren living after his daughters’ life estates had run their courses.

As is often the situation in matters such as this, respondents would apply the same rule, but with a different result — an implied remainder in fee to the heirs of the “then living grandchildren” of Mr. Myrick. In contending that the language of the will affords no basis for the construction espoused by appellant, respondents would charge the testator with knowledge of the legal consequences of the language used by him. Gehring v. Henry, supra, 332 S.W.2d 876 [2-4]. They contrast the provisions of Section 1 of the will, where the house and lots in Gentryville were devised to Rowena “to be hers absolutely” with the language of Section 2 where the testator spoke of “possession” with reference to the farm as evidencing that the testator was aware of the distinction between a fee simple and a life estate. They also point out that in Section 2, the word “possession” was employed to confer what was obviously a life estate on the daughters and conclude that when the testator employed the same word with respect to the interest of the grandchildren, he must have intended that the word have the same meaning and effect in limiting the latter’s interest. English v. Ragsdale, supra, 147 S.W.2d 653 [7].

The language of the will is such that resort to the circumstances surrounding the testator at the time of its execution may be looked to in order to obtain assistance in arriving at the correct meaning of the language which the testator employed. In Re Fowler’s Estate, Mo.Sup., 338 S.W.2d 44, 48 [2]. The circumstances of his advanced age and the status of his family would lend support to the conclusion that the testator intended to make an absolute disposition of his estate. Mr. Myrick had ten grandchildren living at the time of the execution of his will. Five of them, described as “small children” were children of Rowena Hager, who lived with her father during a large portion of the time after she was married in 1919 and until her father’s death in 1937, although she was living elsewhere at the time of his death. Mrs. Prior, the other living daughter, lived next door. Mr. Hag-er had started farming the east half of the farm in 1919 and Mr. Prior had been farming a portion of it prior to that time. In 1920, the division fences, referred to in the will, were erected and the Hagers continued to farm the east half and the Priors the west half and were doing so at the time of the execution of the will and of the testator’s death.

With numerous small grandchildren close at hand, it does not appear reasonable to assume that Mr. Myrick’s thoughts at the time of the execution of his will were directed toward great-grandchildren. The will discloses an obvious intention on the part of the testator to provide, insofar as possible, for his daughters during their lifetimes and thereafter to benefit the testator’s grandchildren. Such was clearly the disposition of the bonds. If he had any great-grandchildren at the time that the will was executed, it does not appear. Certainly his will in no manner takes cognizance of them by any language employed by the testator. In our opinion, we should not, by implication, find such an interest attempted to be conferred upon them as would violate the rule against perpetuities, if an alternative plausible nonviolative construction is authorized. Nelson v. Mercantile Trust Co., Mo.Sup., 335 S.W.2d 167, 173 [8, 9].

We do not consider, as respondents suggest, that the absence of a residuary clause in the will evidences, as an alternative construction advanced by respondents, that Mr. Myrick actually intended to die intestate as to the farm upon termination of the second life estates in his grandchildren. The lack of such a clause is entirely consistent with an intention to dispose of the farm completely and a belief that such had been done.

We recognize that partial intestacy must be accepted notwithstanding a testator’s avowed intention not to die intestate, where the language of the will plainly and unequivocally results in partial intestacy. In such case the court cannot give the testator’s intention a different meaning, “for the purpose of carrying into effect a conjecture or hypothesis of the testator’s intention, by supplying, rejecting, or transposing words or phrases.” Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634, 637; Lang v. Estorge, Mo., 242 S.W.2d 50, 53 [3, 4]. Although we might agree with respondents that the term “possession” would be more appropriately applied to a life estate, as was the case with the daughters, the fact that such term was also applied with respect to the grandchildren’s interest does not produce a similarly limited estate in them. The rule that the same or similar language must be accorded the same meaning throughout the will is again only an auxiliary rule of construction, which must yield to an otherwise manifest intention of the testator. Tapley v. Dill, 358 Mo. 824, 217 S.W.2d 369, 374 [10]; Commerce Trust Co. v. Weed, Mo.Sup., 318 S.W.2d 289, 294 [1, 2].

According to our statute, Section 474.-480, RSMo 1959, V.A.M.S., technical words of inheritance are not required in order to devise an absolute estate. There is no positive rule of law which prevents or prohibits a testator from transferring an absolute estate by the use of the language here in question, if such was the expressed or ascertainable intent of the testator.

We do not consider that the difference between the language of Section 1 and Section 2 of the will discloses an intention on the part of the testator to make less than an ultimate disposition of the farm. As stated, Mr. Myrick, a minister, drew the will himself. Its language does indicate that he possibly had some little familiarity with technical legal terms. However, he was obviously not a skilled draftsman of wills. His ineptness produced the present ambiguity. Although the testator would be charged with the legal consequences of the choice of language of clear and definite meaning, the language employed in Section 2 is not of such clear and definite import as to produce necessarily the consequences urged by respondents.

We are of the opinion that the intention of the testator, determined from the will as a whole and in the light of the surrounding circumstances was to make his grandchildren living at the time of the death of his last surviving daughter the absolute owners of the farm. To give effect to such intention would violate no express rule of law insofar as the adequacy of the language employed in the will for such purpose is concerned and, therefore, we conclude that such is the meaning of Section 2 of the will.

Respondents argue that, even if Section 2 be so construed, it would violate the rule against perpetuities because the fee would not vest in the grandchildren until they met and agreed upon a division of the property as authorized by the will. We cannot accept this contention. The will provided that the farm should become the “joint possession” of the grandchildren upon termination of the preceding life estates. This would negative any idea that actual vesting of title would be suspended, pending division of the property as authorized by the will. The authorization for division is surplusage and has no legal effect insofar as the time of vesting of the fee simple title is concerned. Such conclusion is in accordance with the rule of construction in favor of vesting of estates at the earliest possible time. Commerce Trust Co. v. Weed, supra.

Respondents also argue that, even if “a fee interest in the land is vested in the then living grandchildren of H. W. B. Myrick upon the death of his last surviving daughter * * *, this fee must necessarily be what is known as a fee tail or an estate entail along the lines of Shepperd v. Fisher [206 Mo. 208, 103 S.W. 989] * * *”; that, by Section 442.470, RSMo 1959, V.A. M.S., the fee tail becomes a life estate in the “then living grandchildren” as first takers, with the fee upon their death in their living body heirs; that such a limitation violates the rule against perpetuities.

We reject this contention for the reason that the devise to the grandchildren is not such as would have created an estate tail at common law, and, therefore, § 442.-470 has no application. The will does not provide that upon the death of the last surviving daughter the farm shall go to the grandchildren and their bodily heirs. Instead it provides that the farm shall be the possession of the “then living grandchildren of ours, the body heirs of the said Sybil Prior, Rowena Hager and of Zenobia Mowery * * *.” This language is merely descriptive of the grandchildren who were to be takers under the will and does not show “an intention to create an estate of inheritance descendible only to lineal heirs.” 96 C.J.S. Wills § 862, p. 291.

In our opinion, the proper construction of the will in question, insofar as the property described in Section 2 thereof is concerned, is that a life estate in the west half thereof was devised to the testator’s daughter, Sybil Prior, and in the east half to his daughter, Rowena Hager, with a right in the bodily heirs of the life tenant first dying to continue in possession of the deceased daughter’s half of the farm until the death of the testator’s last surviving daughter, at which time fee simple title vests in the grandchildren of the testator then living.

Arta Jean Prior Merrill sought partition in the action and partition was ordered on the theory that she was the owner of a interest in the farm in fee simple. Under our conclusion, she has no present interest in the land in question which would authorize her to sue for partition against the surviving life tenant and the contingent remaindermen. Noyes v. Stewart, 361 Mo. 475, 235 S.W.2d 333. Therefore, the judgment of partition must be reversed.

Accordingly, the judgment of the trial court on Count One, quieting title, is reversed and the cause remanded for entry of a new judgment quieting title in conformity herewith. The judgment as to Count Two, partition, is reversed and the cause remanded with directions to enter judgment, dismissing Count Two of the petition.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Carl Dennis SIMS and Bill Gene Magruder, Defendants.
    No. 51099.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Charles C. Hatley, Asst. Atty. Gen., New Madrid, for respondent.
    Hale Brown, Kirkwood, Theodore Schwartz, Clayton, for defendants.
   HYDE, Presiding Judge.

Defendants were jointly charged and tried for burglary, second degree, and stealing, under the habitual criminal statute. Secs. 560.070, 560.095, 560.110, 560.156, 556.-280; statutory references are to RSMo and V.A.M.S. Defendants were found guilty by the jury and sentenced by the court to imprisonment of seven years for burglary and three years for stealing to run consecutively, and have appealed.

Defendants had separate counsel, employed by them, on arraignment, at the trial and at sentencing, who filed motions for new trial and perfected appeal, the transcript being paid for by defendants. However, no brief has been filed here so we consider all assignments in the motions for new trial in accordance with Criminal Rule 27.20. (See also Rule 28.02, V.A.M.R.) Since the defendants were tried jointly and the assignments made in the separate motions for new trial by each defendant apply equally to the other, we rule all of them as applicable to both.

Defendants were found inside the building of the Dolly Madison Cake Company by officers of the St. Louis County Police Department about 4:25 A.M., March 24, 1963. The police had been called by Thomas H. Patterson, an employee of the Southwestern Bell Telephone Company, who saw the defendants enter. Patterson was in the Telephone Building, south of the Cake Company building (there being a parking lot between the two buildings) when he heard a car door slam. Looking out a window, he saw a car on the side street, west of the parking lot, and saw two figures standing by the car. He said the men “walked up the street, jumped a fence” and went up to the front door of Cake Company building on the parking lot, “the main entrance to the store part of the building.” Patterson said: “[A]bout the time they reached the door there was a car coming south on Woodson Road so they ran to the back of the building, back along here to the fence again, and after the car passed they came back to the door and went in.” Woodson Road was on the east side of the two buildings.

Mrs. Lena Helton, Clerk of the Cake Company, closed the store at 7:00 P.M. on March 23, 1963, checked all doors and left after all were locked. She put about $48.00 (tens and ones) under the counter. When the police came, all doors were found locked and Donald E. Marshall, the Division Manager of the Cake Company, was called to come and let them in. They found defendants in the garage part of the building behind the store. They also found a crowbar, a screwdriver and a flashlight there and $64.85 in currency and coin was taken from defendant Sims, including four ten dollar bills and nineteen ones. Defendant Mag-ruder was found to have $2.55. There was no money under the counter; also missing was a roll of postage stamps from the manager’s desk and a roll of stamps was found on a truck in the garage where defendants were arrested. There were tool marks on the jamb of the door to the store and there was testimony that this door (made of aluminum) could be opened and locked again with the crowbar and screwdriver. Photographs in evidence showed the condition of the store and the manager’s office at the time the police came.

Defendants’ testimony was that they and Donald Steinhoff were at Sims’ house until about 1:00 A.M. and left in Steinhoff’s car, going to a restaurant; that afterwards they had trouble with the car and finally left it and Steinhoff to go to Sims’ brother’s house when a policeman of St. Ann they knew came up and told them it was too late to be on the streets; that they jumped the fence by the Cake Company parking lot when they saw a car they thought was the car of the policeman who had spoken to them; and that when they came to the Cake Company building they saw lights on the inside of the store, an “open” sign in the window and the door partly open. Sims testified that he “just opened the door,” “hollered, asked if anyone was in there” and “looked for a telephone,” to call his brother. Defendants had gloves (which would prevent leaving fingerprints) when arrested but Sims explained this saying that he used jersey gloves in his work; that he had two pair, one of which he had loaned Magruder, to wear gloves pushing the Stein-hoff car. Sims further testified that the money taken from him was money he had earned working. Magruder testified that he and Sims went to the south door of the bakery in question which was slightly open; that he and Sims went in to make a telephone call; that the door closed behind him and about that time a police car pulled up and when defendants heard police cars coming into the parking lot, they went into the garage so they would not be seen. Mag-ruder said he and Sims waited in the garage for about forty-five minutes until the police came in and arrested them. Defendants denied that the crowbar, screwdriver and flashlight were theirs.

Steinhoff testified that he, Sims and Magruder left Carl Sims’ house after midnight in Steinhoff’s car, stopped at an all-night restaurant, and after leaving the restaurant had car trouble; that Sims and Magruder pushed the car, got it started but the car later quit and that Sims and Magruder left walking to go over to Sims’ brother’s house to get help; that after Sims and Magruder had been gone ten or fifteen minutes the car started and he drove on to pick them up; and that he was picked up by the police who put him in the police car and took him back down to the Dolly Madison store where they had Sims and Magru-der inside.

Defendants allege error in refusing to sustain their motions for acquittal at the close of all the evidence on the ground that there was no evidence to show the Interstate Baking Company, a corporation, was the owner of the money alleged to have been taken or was the owner of the Dolly Madison Cake Company. The information alleged breaking into a building, “the property of the Interstate Baking Company, a corporation, doing business as Dolly Madison Cake Company,” with intent to steal and did steal money, “the property of said Interstate Baking Company, a corporation, doing business as Dolly Madison Cake Company.” It is also claimed that the evidence was insufficient to show a breaking or entering by either of the defendants or that the money found on Sims belonged to anyone other than himself. There is no merit in these contentions; as to the latter witness Helton testified that the money she put under the counter when she left was the property of the Dolly Madison Cake Company. This money was missing and money in the same denominations was found on Sims. Likewise, the postage stamps from the manager’s desk were found in the garage near defendants. The facts shown by the evidence, hereinabove stated, are sufficient to show breaking and entering by defendants with intent to steal and stealing. In this connection error is assigned in admitting testimony of Captain Fred J. Vasel of the St. Louis County Police Department “that no money was found in a box in the office adjoining the room wherein defendants were arrested.” No reason is given for this assignment and since this testimony showed that after defendants had entered there was no money in the place where Mrs. Helton had left it, we hold this testimony was properly admitted.

Defendants’ contention concerning failure to show status or ownership of the Interstate Baking Company likewise is without merit. Some of our early cases did make strict requirements in this regard but they were overruled by State v. Carson, 323 Mo. 46, 18 S.W.2d 457, 461. In that case, we said the statute of jeofails was ignored in the earlier case (then 3908 RS 1919, later 545.030, now Rule 24.11) and held on a charge of selling property mortgaged to a bank that the defendant “is fully informed of the ‘nature and cause of the accusation’ without any specific description of the mortgagee incidentally affected.” This principle has been applied in many subsequent cases. In State v. Latham, 344 Mo. 74, 124 S.W.2d 1089, 1090, the information only stated property was stolen from “Eggers’ Garage” and we cited Sec. 3652 RS 1929, later Sec. 546.080, now Rule 26.04, stating in part as follows: “Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname * * * or other description of any person whatsoever of any person whomsoever therein named or described * * * or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.” We affirmed conviction ruling “that said court did not find that the omission from the information of an allegation that Eggers’ Garage was a corporation, or if a copartnership an allegation of that fact and the names of the partners, was material to the merits of the case or prejudicial to the defense of the defendant.” As we said in State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740, 741: “Proof of the appellant’s guilt of the crimes charged, or either of them, did not depend upon establishing the fact of the oil company’s incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and, to establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the information, it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership, or an individual is not material to the appellant’s defense or in the establishment of his guilt.” See also State v. Parker, 324 Mo. 734, 24 S.W.2d 1023; State v. Dowling, 360 Mo. 746, 230 S.W.2d 691; State v. Stubblefield, Mo.Sup., 248 S.W.2d 665; State v. Zammar, Mo.Sup., 305 S.W.2d 441; State v. Stuver, Mo.Sup., 360 S.W.2d 89. Likewise, defendants’ guilt of the crimes charged in this case did not depend on establishing that “Interstate Baking Company, a corporation, doing business as Dolly Madison Cake Co.” was a corporation owning Dolly Madison Cake Company, as a subsidiary corporation, whether it was a division or department of the Baking Company or whether that designation was used as a trade name. Mr. Marshall testified that he was the “Division Manager of Dolly Madison Cake Co.” at its store at 3507 Woodson Road; that its building was entered and that the missing money was its property. We hold his testimony and the other proof was sufficient to prove defendants “feloniously broke into the premises of another and to establish larceny” and under Rules 24.11 and 26.04 to sustain their conviction.

Error is assigned in the admission of photographs showing defendants at the time and place of their arrest, showing the store room and the office of manager Marshall in a state of disarray and showing the door leading to the office adjoining the room where defendants were arrested. These photographs were taken by one of the police officers that night and there was testimony that they fairly and accurately showed the conditions, objects and persons as they were at the time they were taken. Admission of photographs is mainly within the sound discretion of the trial court and are properly admitted when helpful to show relevant facts. State v. Smith, Mo.Sup., 240 S.W.2d 671, 675; State v. Morris, Mo.Sup., 248 S.W.2d 847, 849; State v. Brown, Mo.Sup., 312 S.W.2d 818, 822; State v. Anderson, Mo.Sup., 375 S.W.2d 116, 121. We hold there was no error in admitting these photographs in evidence.

Error is assigned in the admission in evidence of the crowbar and screwdriver found in the garage near defendants when they were arrested. The Cake Company manager testified these were not its property. Defendants’ ground stated in the motion is that “the chain of possession of the property had not been established from the time of the seizure thereof.” These articles were taken into custody by Detective Tinkham who found them on the garage floor at the time of defendants’ arrest. He took pictures to show the position in which they were found. Tinkham identified these articles at the trial. He said he put these articles and others in envelopes, sealed the envelopes and gave them “to the custodian of our evidence locker where they were placed in our vault.” He also said that such envelopes would be initialed. We hold there was sufficient identification to authorize the admission of these articles. See State v. Pruett, Mo.Sup., 342 S.W.2d 943, 945, and cases cited; State v. Summers, Mo.Sup., 362 S.W.2d 537, 540; State v. Maxwell, Mo.Sup., 376 S.W.2d 170, 174; see also State v. Lindner, Mo.Sup., 282 S.W.2d 547, 552. For the same reasons, we overrule the claim of error in the admission of the roll of postage stamps.

Error is assigned in admitting testimony of Captain Vasel (1) that he had been called to the premises on a report that a burglary was in process; (2) that the premises were “obviously broken into”; and (3) that the crowbar and screwdriver could have been used to open the front door. As to 1, the reference to burglary was in a question which was not answered. The question was withdrawn on objection being made and no action by the court of any kind was asked by counsel for either defendant. As to 2, the word objected to (which was “obvious”) was stricken and request for a mistrial denied. We find no abuse of discretion in that ruling. As to 3, Captain Vasel described the locking mechanism of the aluminum front door of the Cake Company store as a bolt that protrudes from the door into the jamb and could be unlocked by a key from either inside or outside. He testified that he had been in the police department 13 years; that the offense of burglary came under the division he commanded; and that he was familiar with the use and operation of burglar tools generally. He then was asked whether the crowbar and screwdriver in evidence could be used to open a locked door of the type on the Cake Company building. Objection was on the ground that the question called for conjecture, invaded the province of the jury and that the witness had not been qualified as an expert “to determine the usage of tools of this nature.” After an affirmative answer, Captain Vasel was asked to demonstrate how it could be done but objection to a demonstration was sustained; but he was permitted to say the door could be locked again with the same tools. “[T]he determination of whether a witness is qualified to give particular testimony rests largely within the discretion of the trial court, although such determination is reviewable for abuse.” Davis v. Gatewood, Mo.Sup., 299 S.W.2d 504, 511. See also State v. Terry, Mo.Sup., 325 S.W.2d 1; State v. Menard, Mo.Sup., 331 S.W.2d 521; in State v. Turnbough, Mo.Sup., 388 S.W.2d 781, 786, in which a fire chief was permitted “to testify as to the origin of the fire and the intensity of the heat” we said: “The court has a wide discretion in determining the admissibility of opinion evidence of this kind, and no abuse of discretion is shown by the record.” See also State v. Brown, Mo.Sup., 291 S.W.2d 615, 619, in which we held it proper to admit the opinion of a police department laboratory officer as to whether marks on window sash and door of burglarized building were made by crowbars and screwdrivers found in truck driven by defendant. While the State might well have shown in more detail Captain Vasel’s experience, this was a rather simple mechanical operation (prying the bolt of the lock away from the slot in the door jamb) and we cannot find any abuse of discretion in admitting this testimony.

Error is assigned for not permitting Sims to testify to what Officer Hauserman of St. Ann said to him after Steinhof f’s car stalled. Sims was permitted to say the officer told him, “It’s too late to be on the streets and get out of there.” Objection to further conversation with this officer as hearsay was sustained and we think properly. Defendants’ theory was that they thought cars they saw later and attempted to evade were this officer’s car and that they were trying to keep away from him when they went to the Cake Company building. Their version of their actions was fully presented to the jury and we find no merit in this assignment.

Defendants make several assignments concerning the instructions. Assignments that there was not sufficient evidence to support giving Instruction No. 1 submitting burglary, Instruction No. 2 submitting burglary and stealing, Instruction No. 3 submitting stealing, are obviously without merit from the facts hereinabove stated as shown by the evidence. This is also true as to Instruction 4, concerning persons acting jointly being equally guilty, of the claim there was not sufficient evidence that a crime was committed by either.

Instruction No. 1 is criticised for stating “no particular amount of force is necessary” to constitute breaking and entering, as being inconsistent with requiring a breaking and entering and as constituting a comment on the evidence. As to force see State v. Fritz, Mo.Sup., 379 S.W.2d 589, 590, and cases cited. These contentions are without merit.

Instruction No. 2 is criticised as referring to the corporate entity by using the term “its property” in defining stealing and says this constitutes a comment on the evidence. Apparently this refers to defendants’ contention concerning the allegation in the information that the property belonged to “Interstate Baking Company, a corporation, doing business as Dolly Madison Cake Company,” and that some further proof was necessary to more definitely show the corporate status. We have already ruled that such proof was not an essential element of the State’s case and therefore overrule this claim concerning Instruction No. 2. A further criticism of this instruction is its direction “the moving of property alleged to have been stolen from the place where it was before, however slight, is sufficient to constitute stealing.” It is said this overlooks accidental or unintentional moving. However, this instruction clearly requires a finding of “felonious intent at the time to convert the same to their own use and to permanently deprive the owner of the use thereof without its consent.” Defendants’ claims of error against this instruction cannot be sustained.

Instruction No. 4 is criticised as vague and indefinite, as a comment on the evidence and as failing to require a finding of guilt of either or both defendants beyond a reasonable doubt. This instruction was as follows: “All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly, is the act of all and of each one so acting.” This was not a verdict-directing instruction but only a statement of a properly applicable principle under the evidence. See Raymond Missouri Instructions, Secs. 3471-3479, and cases cited. We hold there was no prejudicial error in giving this instruction.

Instructions 5 and 6 are criticised as permitting the presumption of innocence to be overcome prior to the conclusion of the entire case by No. 5 concerning proof of intent; and of replacing the standard of “reasonable doubt” with a more difficult standard for the jury to understand by No. 6 stating a doubt to authorize acquittal ought to be a “substantial one.” As to No. 5, see Raymond Missouri Instructions, Sec. 3716; as to No. 6 see Raymond, Secs. 3732-3734, 3784-3792, 3800-3809, and cases cited. Considering, as we should, these instructions together with the requirements of the other instructions given, we hold there was no prejudicial error in giving these instructions. Error is also claimed in refusing offered Instruction A concerning “conviction of the defendant on circumstantial evidence alone.” The court refused this instruction on the authority of State v. Loston, Mo.Sup., 234 S.W.2d 535, 538, on the ground that part of the State’s evidence was direct. See also State v. Ybarra, Mo.Sup., 386 S.W.2d 384, 386; State v. Tallie, Mo.Sup., 380 S.W.2d 425, 429; State v. Cox, Mo.Sup., 352 S.W.2d 665, 670. We hold the court properly refused Instruction A.

Other assignments concern the oral argument during which the court admonished defendants’ counsel for remarks concerning expected punishment (stating the maximum) if defendants were found guilty and in failing to declare a mistrial when the prosecuting attorney thereafter stated his recommendation would be the maximum. Since the habitual criminal statute applied, the jury had no function as to punishment and the statement of the prosecuting attorney was retaliatory to the remarks of defendants’ counsel concerning it. We have read the entire argument carefully and find no prejudicial error in the court’s rulings. We have examined the record as required by our Rules 28.02 and 28.08, V.A.M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    A. D. LAWRENCE, Jr., and Z. Maurine Lawrence, Husband and Wife, Respondents, v. The CAMERON SAVINGS AND LOAN ASSOCIATION, a Corporation, Appellant.
    No. 51235.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.

      J. William Blackford, Kansas City, for respondents.
    Robert E. Coleberd, Liberty, Frank L. Pulley, Cameron, Hale, Coleberd, Kincaid & Waters, Liberty, of counsel, for appellant.
   HOUSER, Commissioner.

Action in equity by A. D. Lawrence, Jr. and his wife Maurine against The Cameron Savings & Loan Association and Cecil Benson and his wife Jessie, to impress a trust in favor of plaintiffs on certain real estate conveyed by plaintiffs to the Ben-sons and compel its reconveyance to plaintiffs ; for a decree finding that the association has no interest in the real estate and to declare null and void and cancel all deeds and deeds of trust affecting it; to quiet title in plaintiffs as the true owners and to recover moneys from all defendants. Tried to the court, the issues were found for plaintiffs. Defendants Benson did not appeal. The association did appeal to this court. We have jurisdiction because the title to real estate is involved. Mo.Const. 1945, Art. V, § 3, V.A.M.S.

The Lawrences owned 20 acres of land. Cecil Benson, Lawrence’s brother-in-law, is a contractor. The Lawrences and Ben-sons made an oral agreement that the 20 acres be conveyed to the Bensons; that Cecil Benson would plat and develop the tract as a subdivision to be known as Lawrence Heights, an addition in Clay County; that Benson would handle the business details, secure financing and build houses on the lots, the Lawrences to be paid $500 or $600 each for the lots depending on their size, when houses were built and lots were sold, with nothing due the Lawrences until lots were sold. Unsold lots not built on were to be reconveyed to the Lawrences.

In order to secure a construction loan the Lawrences and the Bensons went to the offices of the association, where they talked to George Johnson, its secretary-treasurer. The details of the agreement between the Lawrences and the Bensons were discussed with him, including the proposal that the subdivision be financed by a construction loan to be made by the association. The arrangements proposed were satisfactory to Johnson, who agreed to them including the price the Lawrences were to receive for the lots. In the course of the conversation Johnson said that the best way to do it was for the Lawrences to deed the property to the Bensons and that the association would make the payments of the sums due the Lawrences, because the association was furnishing the money. Johnson stated and repeated that “if it didn’t work” the Lawren-ces were “to take the land back, that they [the association] didn’t want high priced land down there to pay city taxes on.” Arrangements were thus made at that meeting with Johnson for the association to advance and lend Benson the money for the purpose of building houses on the Lawrence Heights subdivision, with an understanding on Johnson’s part that the Lawrences were to be paid for their lots when a house was built, completed and sold, at the rate of $500 or $600, depending upon the size and location of the lot, and that unsold lots were to be reconveyed to the Lawrences. This was an oral, not a written, agreement. On the same day, May 7, 1954, a warranty deed conveying the 20 acres from the Lawrences to the Bensons was prepared by Johnson and executed and acknowledged by the Lawren-ces before Johnson in his capacity as a notary public. Nothing was paid by the Bensons to the Lawrences for executing the warranty deed. The fact that the Lawren-ces were paid nothing for the land was known to Johnson.

In 1954 and 1955 three duplexes were built on three of the $600 lots. These duplexes were not sold, having been built for investment purposes. The Bensons at first collected the rents, and paid them to the association. Later the association took over the collection of the rents. The Lawrences were never paid for the three lots on which the duplexes were built.

After the land was platted and on May 4, 1956 the Bensons executed a note to the association for $211,925.19 and gave the association a deed of trust on all of the lots in the subdivision as security for the loan. The association, through Johnson, had knowledge that the land was not paid for— that the Bensons had not paid the Lawrences for the land — when the deed of trust was made in its favor.

Over a period of several years several houses, financed by the association and built by Benson, were sold to the public. The association also furnished Benson with money to build roads and a septic tank and disposal unit in the subdivision. When houses were constructed and sold the association would issue its check payable to the Lawrences for the agreed amount due the Lawrences for the lots sold, and would prepare a release on the particular lot for the Lawrences to sign. Association checks were mailed to and received by the Lawren-ces, who cashed the checks issued by the association after executing the written release to the Bensons of the Lawrences’ interest in each of the lots sold.

Eventually Benson quit building houses, and the Bensons defaulted in the payments due the association on their note. Finally the deed of trust was foreclosed, and the association bought the property in at the trustee’s sale.

At the trial Johnson, then executive vice-president of the association, testified that the litigation prevented the giving of clear title to the lots in question, but that when the lots and duplexes could be sold and clear title given it was his intention to carry out the agreement and pay the Lawrences for the lots “in keeping with and according to his understanding and agreement.”

Plaintiff’s petition is in two counts.

Count I alleges that on and from May, 1950 plaintiffs were owners of the land; that in 1954 they contracted with Benson for the construction of homes thereon and their sale and that plaintiffs would transfer the land to the Bensons, for which the Bensons were to pay plaintiffs $500 or $600 per lot when each house was sold or completed; that lots not built on were to be returned to plaintiffs; that plaintiffs relied on the statements and representations of the Ben-sons “and the officers and agents of the company” and reposed special trust and confidence in them and relied upon them for advice; that a fiduciary and trust relationship existed; that houses have been built on all but nine lots described by lot and block number; that plaintiffs have received payment for all of the lots built upon except three lots upon which duplexes were built and two other described lots which have been built upon and transferred to another party unknown to plaintiffs; that the Ben-sons owe plaintiffs $2,800 for lots sold and built upon or transferred; that building operations have ceased but the Bensons have failed and refused to transfer back the lots not built upon; that plaintiffs have no adequate remedy at law. The prayer of Count I is for judgment for $2,800 due them from the Bensons and for a court order impressing a trust on the land and requiring the Bensons to transfer back to plaintiffs the nine lots not built upon.

Count II incorporates the allegations of Count I and further alleges that the association has been financing construction loans upon each of the houses built by Benson; that plaintiffs had an understanding and agreement with the association that if the building operations ceased plaintiffs would get their land back on which no houses were constructed; that the association arranged the details of the transfer of the property and assured plaintiffs (1) that they were to receive the $500 or $600 per lot when the houses were completed; (2) that they would get their money first and that plaintiffs’ right to reconveyance in event of failure to build houses would not be jeopardized by liens or mortgages held by the association; and (3) that Benson held the property in trust for plaintiffs and that plaintiffs were the true and equitable owners of the land; that the association has received moneys of plaintiffs which should have been paid to them and has refused to pay for the three lots on which duplexes have been built; that the association is collecting the rents on the duplexes but refuses to pay plaintiffs; that two certain lots have been transferred to a realty company and houses are being built upon them; that the money for these lots has been received by the association which fails and refuses to pay the money to plaintiffs; that the association is claiming some interest in the property but has no claim in truth or fact; and that plaintiffs have no adequate remedy at law. Count II concludes with a prayer that the court determine that the association has no interest in the nine lots upon which no houses have been constructed; judicially declare that any legal documents, deeds, deeds of trust, or otherwise, be delivered up and cancelled and declared null and void, and that plaintiffs are the true owners of said land and that the title be quieted in them, and compel the association to pay plaintiffs any moneys of the plaintiff.

The judgment does not dispose of the two counts separately. It finds the issues for plaintiffs generally and adjudges that plaintiffs are the owners of the nine lots upon which no houses have been built, describing them; declares null and void “any legal documents, deeds of trust, or deeds, or otherwise, held by the defendants on or concerning the aforesaid lots”; quiets title to those lots in plaintiffs; grants judgment against the association for $1,000 for two lots (for which the Lawrences held the association’s uncashed check), and grants judgment and a lien for $600 each (total $1,800) on the three lots on which duplexes are built.

The association’s first point is that Count I does not state a claim upon which relief can be granted against the association. Plaintiffs concede that Count I, standing alone, is not directed against the association but solely against the defendants Benson, who have not appealed from the judgment. It is clear that Count I, considered by itself, does not state a claim upon which relief can be granted against the association.

The association’s second point is that Count II does not state a claim upon which relief can be granted against the association because it does not state any facts showing a violation of any rights of the Lawrences resulting in their damage; that the charge that the association agreed that if operations ceased the Lawrences would get their land back upon which no houses were constructed and would get their money first conflicts with and goes beyond the powers of a savings and loan company as prescribed in Chapter 369, V.A.M.S., regulating these institutions, and that such agreements and assurances are ultra vires and far beyond the statutory authority of the association; that Chapter 369 does not authorize the secretary-treasurer of a savings and loan association to bind the latter by entering into an oral agreement such as is alleged, and that the oral contract is invalid; and because, disregarding the ultra vires allegations of Count II, no facts are left upon which to establish a cause of action against the association.

The facts alleged in Count II as supplemented by those stated in incorporated Count I state a cause of action in equity against the association to quiet and determine title, and sufficiently allege a violation by the association of the rights of plaintiffs and their resultant damages. Under these facts plaintiffs have an equitable right to get back the lots upon which houses were not built, to payment for the lots upon which houses were built, and to payment for the lots upon which duplexes were built not for sale but for investment purposes. The resultant damage is the deprivation of the lots not built upon and the failure to receive the agreed sums for the lots built upon.

The defense of ultra vires is in the nature of confession and avoidance, 19 C.J.S. Corporations § 1331 a. It is an affirmative and special defense which must be specially pleaded in order to be available, Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64, 80; Chouteau v. Missouri-Lincoln Trust Co., 310 Mo. 665, 276 S.W. 49, and cannot be raised by general denial. Fricke v. Belz, 237 Mo.App. 861, 177 S.W.2d 702, 708 [14]. Matters constituting an avoidance or an affirmative defense must be set forth affirmatively in the pleadings in the trial court. Civil Rule 55.10, V.A.M.R. The defense of ultra vires was not raised in the association’s answer or other pleading and was not tried by the express or implied consent of the parties under Civil Rule 55.54. The question of the authority of Johnson as an officer of the association to make agreements for and enter into contracts binding upon the association was raised at the trial, but not the question of the power and authority of the association as a savings and loan institution under Chapter 369, V.A.M.S., to enter into the agreement in question. The association did not refer to the defense of ultra vires until it filed its brief on appeal. This is too late.

The association contends, however, that the allegations of the petition disclose on its face that the contract is ultra vires under Chapter 369, V.A.M.S., on the theory that the rule requiring the defense of ultra vires to be pleaded does not apply where the invalidity of the contract sued on appears as a matter of law on the face of the petition. 19 C.J.S. Corporations § 1331 b; Coliseum Athletic Ass’n v. Dillon, 204 Mo.App. 504, 223 S.W. 955.

Assuming that the association is subject to the limitations imposed by Chapter 369, and further assuming for the purpose of facilitating the disposition of this appeal that the contract exceeded the powers conferred upon the association by Chapter 369, nevertheless, since the contract was not malum in se and did not violate any express statutory provision, it was not illegal in the sense that an action depending upon the contract cannot be maintained. “The fact that a contract of a building and loan association is ultra vires does not necessarily make it void or relieve the parties of liability thereunder. Although the association has no right to enter into such a contract, it may have capacity to do so, and where the other party has acted in good faith and has fully executed the contract on his part, the association, having received the benefit of such performance, is estopped to set up the defense of ultra vires unless the act is malum in se or is expressly prohibited.” 13 Am.Jur.2d Building and Loan Associations § 42, pp. 184, 185, and the following cases there cited: Eastern Bldg. & Loan Ass’n v. Williamson, 189 U.S. 122, 23 S.Ct. 527, 47 L.Ed. 735; In re San Fransico Bay Exposition, D.C.Cal., 50 F.Supp. 344; Kadish v. Garden City Equitable Loan & Bldg. Ass’n, 151 Ill. 531, 38 N.E. 236; Marion Trust Co. v. Crescent Loan & Invest. Co., 27 Ind.App. 451, 61 N.E. 688; Montrose Perpetual Bldg. Ass’n v. Page, 143 Md. 631, 123 A. 68. Here the Lawrences in good faith conveyed their land to the Bensons partly in reliance upon the promises of Johnson, who was acting as an officer of an agent for the association. The Lawrences fully executed the contract on their part. The association received the benefit of their performance. The contract is not maluni in se and is not prohibited by any express provision of Chapter 369. The association, having received the benefit of the performance of the contract, is estopped to avail itself of the defense of ultra vires.

For its third point the association contends that the Lawrences did not make a submissible case against it because of failure to show that Johnson, secretary-treasurer of this association, had authority to enter into a binding agreement on behalf of this association; because Chapter 369 does not provide that construction loans may be governed by oral contracts between a borrower and a savings and loan association, and because the oral agreement between the Lawrences and the Bensons did not apply to the association and was merged in the deed from the former to the latter.

The association asserts that there is nothing in Chapter 369 which gives the secretary-treasurer of a savings and loan association the authority to bind the association by entering into an oral agreement such as plaintiffs count upon and that there is nothing in the evidence to show Johnson’s authority to thus bind the association. Even if this be accepted, the association is nevertheless bound by the acts and knowledge of its secretary-treasurer under the facts of this case, on the theory of ratification. It is unquestionably true that Johnson knew that the Lawrences had not been paid for their land when he approved the making of a loan to the Lawrences’ grantees, the Bensons. Johnson admitted that he was thus informed. With that knowledge Johnson, secretary-treasurer and director of the association, was present at the meeting when the matter was passed upon by the officers of the corporation. Johnson testified that he discussed the loan with the officers at that meeting when, presumably, the loan was approved. While there is no evidence that Johnson discussed the oral agreement in question with the officers of the corporation, it is clear that he permitted the loan to be passed upon and approved in the ordinary course of business. In this situation Johnson’s knowledge of the transactions had and agreements reached with the Lawrences and the Bensons, while sitting as a member of the board of directors, is to be imputed to the board of directors. “[T]he existence in the breast of a single director, while sitting in the board, of a matter of knowledge which he ought to communicate, and which he can properly communicate to his codirectors, is knowledge to the corporation as matter of law. 10 Cyc. 1057. And it is also true that the principal is ordinarily chargeable with the knowledge acquired by his agent in executing the agency.” Home Building & Loan Ass’n of Joplin v. Barrett, 160 Mo.App. 164, 141 S.W. 723, 728 [4]. With imputed knowledge of the arrangement the board of directors approved the loan and thereby ratified the agreement and understanding reached by Johnson.

The association further contends that Chapter 369 does not authorize a savings and loan association to enter into an oral agreement with a borrower, the effect of which is to reduce the security for a construction loan. This is another facet of the ultra vires argument, against which the association is estopped, as we have decided, supra.

The association counts upon a stipulation during the trial by counsel for the Law-rences that the conversation between Lawrence and Benson “applies only” to the defendant Benson (and therefore inferentially was not applied to the association). It is clear from the record, however, that this stipulation related only to the conversations between Lawrence and Benson prior to the time they went to the office of the association and not to conversations between Lawrence and Benson at the office in the presence of Johnson.

On the contention that the agreement was merged in the warranty deed: This action is not based upon the deed but upon the contract, by the terms of which the execution of the deed was to be only a part execution — a necessary act preliminary to the fulfillment, as one step in the performance, of the entire contract. The deed was collateral to the contract and the contract was not merged in the deed. Tighe v. Locke, Mo.App., 299 S.W. 105, 108 [1].

The association’s fourth point is that the judgment entry is null and void. Five reasons are suggested. The first three repeat contentions previously considered and overruled. We need not go over ground already plowed. The last two propose the insufficiency of the evidence to support the judgment entered. For instance, it is contended that the finding that plaintiffs are the owners of the nine lots not built upon is contrary to the evidence that the property was conveyed to the Ben-sons by a warranty deed vesting in them a fee simple title without exceptions or reservations. Under the facts in evidence, however, the deed conveyed only the bare legal title and the Bensons, and upon foreclosure the association, took the title subject to the equitable right of the grantors to be reinvested with the title upon the contingency agreed upon. Equity will impose a constructive trust in the unsold lots in favor of the original grantors who have been deprived of their property by the acts of the foreclosing mortgagee which, with full knowledge of all of the surrounding facts and circumstances, wrongfully repudiated the arrangement and has sought to retain the property for its own use and benefit, Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8, 16.

The association claims there is no evidence or basis for that part of the judgment entry declaring null and void the warranty deed from the Lawrences to the Ben-sons and the deed of trust from the Bensons to the association. While the decree reaches the proper net result (divestment of the title from the association and its reinvestment in the Lawrences) its provisions with respect to the real estate more appropriately should declare that the association holds the bare legal title in trust as constructive trustee for the Lawrences; that the latter are the true equitable and beneficial owners of the lots; that title thereto is forever quieted in the Lawrences, and should order the association to reconvey the title to the Lawrences within a certain time, failing in which the fee simple title to the lots, unencumbered by any deed of trust or lien or claim of the Bensons or of the association, shall be reinvested in the Lawrences by force of the decree. Contrary to the contentions of the association we find evidence to support paragraphs 2 and 3 of the decree granting judgment against the association for $1,000 and $1,800, respectively, with this exception: Paragraph 3 does not name the association as the party against whom the judgment for $1,800 is rendered. This should be corrected on remand.

We therefore affirm the judgment and decree of September 9, 1964 in the following respects: the general finding of the issues for the plaintiffs; the adjudication that plaintiffs are the owners of the nine lots upon which houses have not been built and quieting title thereto forever in plaintiffs and against defendants; the provisions of paragraphs 2 and 3, with the exception noted in the last preceding paragraph, and the assessment of costs. That portion of the judgment and decree which provides “That any legal documents, deeds of trust, or deeds, or otherwise, held by the defendants on or concerning the aforesaid lots are held and declared null and void” is set aside. The cause is remanded with directions to modify and amend the judgment and decree by excising the material above quoted and substituting therefor appropriate provisions consistent with the views expressed in the last preceding paragraph, including the naming of the association as the party against which the $1,800 judgment is rendered. The costs of this appeal are assessed against the appellants because the setting aside of a portion of the judgment and decree and the remand for modification are for technical reasons only and not for reasons related to the merits of the appellant’s claims.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: WELBORN, Commissioner. HOUSER, Commissioner HOLMAN, Judge

text:
    Mary Elizabeth SCHNURBUSCH, by her Next Friend, William H. Frye, Respondent-Appellant, v. Sylvester A. BOHNERT and Albertine Bohnert, Appellants-Respondents, Federal Land Bank of St. Louis and Walter R. Brown, Trustee, Respondents.
    No. 50736.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.
    Raymond H. Vogel, Vogel & Frye, Cape Girardeau, for respondent-appellant.
    Leo J. Rozier, Perryville, Edw. D. Summers, Frankfort, Ky., for appellants-respondents, Sylvester A. and Albertine Boh-nert.
   WELBORN, Commissioner.

This is an action by Mary Elizabeth Schnurbusch through a next friend against Sylvester A. Bohnert and Albertine Boh-nert, husband and wife, to set aside a deed. The Federal Land Bank of St. Louis, holder of a note secured by a deed of trust on the property, was a party defendant as was Walter R. Brown, trustee under such deed of trust. The relief sought was based upon allegations that the plaintiff grantor was of unsound mind on the date of execution of the deed and that a fiduciary and confidential relationship existed between the plaintiff and the Bohnerts and that the Bohnerts induced the plaintiff to execute the deed through undue influence. The trial court found that plaintiff had sufficient mind to know and understand the transaction which resulted in the execution of the deed. It further found that a fiduciary and confidential relationship did exist between plaintiff and the Bohnerts and the deed was the result of undue influence exerted over the plaintiff by the Boh-nerts. The trial court ordered the deed set aside. The Bohnerts appealed from this decree.

The court also entered an interlocutory judgment in favor of plaintiff against the Bohnerts for the amount of $13,057.67, the amount owed the Federal Land Bank which was secured by a deed of trust on the land in question and other land of defendants. The interlocutory portion of the judgment was to be discharged upon release of the land in question from the lien of the deed of trust.

Plaintiff sought to amend the decree by making certain changes in the portion .thereof which was interlocutory and making the money judgment final. The trial court overruled the motion to amend and plaintiff appealed from the order overruling her motion to amend the judgment and decree. Defendants have moved to dismiss plaintiff’s appeal on the grounds that the order appealed from is not final.

The land which is the subject of this controversy is a 1581,4-acre farm in Perry County, Missouri. It was described as “the home place” of the plaintiff, an unmarried woman 71 years of age at the time of the trial in June, 1963. Plaintiff had not lived on the farm for a number of years, having left there shortly after her father’s death in 1942. She inherited from her father a share in the farm and in 1943 purchased the outstanding % interest of the other heirs for $3,979.16. She rented the farm from time to time while she was in other cities doing missionary work for Jehovah’s Witnesses. According to the plaintiff, the only rent she ever received was $280 from one tenant. The evidence showed that at the date of the deed the farm was in a rundown condition.

On January 6, 1954, plaintiff, who was then living in St. Charles, Missouri, went to the Washington University Psychiatric Clinic. She was seen there by physicians who found her in a state of agitated depression. The clinic record shows that at that time plaintiff entertained the idea of returning to the farm to live. Her last visit to the clinic was on January 20, 1954. On February 16, 1954, she went to Oak Ridge, Missouri, in Cape Girardeau County, where she lived at a rest home or nursing home.

Plaintiff’s sister, Anna Bohnert, lived about one mile north of Perryville and Anna’s son, Sylvester, lived on a 70-acre farm about ten miles south of Perryville. In March or April, 1954, Sylvester was in the vicinity of Oak Ridge at a sale. He visited the plaintiff at the nursing home. Plaintiff started talking about the farm, complaining that she was just paying taxes on it and not receiving any income from it. According to Sylvester, “she talked like she would sell it to me.” A week or so later, Sylvester returned to visit the plaintiff and, according to him, plaintiff wanted to sell the farm to him, but he did not wish to buy it. Eventually, he agreed to rent it. Asked the terms of the rental arrangement, Sylvester stated: “She wasn’t particular. She wanted to get me started, thought I might get interested enough to buy it.”

Sometime in the summer of 1954, plaintiff came to live with her sister, Anna Bohnert. In July, 1954, plaintiff again became severely depressed and sought treatment at the outpatient department of State Hospital No. 4 at Farmington. Defendant and his wife drove the plaintiff to the hospital in their automobile. Electric shock therapy was undertaken and plaintiff received three such treatments from July 12 to July 19. A series of six treatments was planned, but the plaintiff did not return after the third. Plaintiff apparently continued to live with her sister in Perryville while receiving treatment at the outpatient department. The indication is that Sylvester accompanied by the plaintiff’s sister drove the plaintiff back and forth on the other visits to the hospital during this series of treatments.

Sylvester planted corn on the farm, but the land was so poor that the crop “wasn’t worth picking.” Sylvester told the plaintiff that, in view of the poor crop, he could not afford to continue renting the farm. According to Sylvester, they then had several discussions regarding the sale of the farm and eventually an arrangement was reached under which the farm would be transferred to Sylvester in return for his providing a place to live and food for the plaintiff.

Sylvester and his wife took the plaintiff to the office of Curt Vogel, an attorney in Perryville. Plaintiff did not know Vo-gel. He was selected as the attorney in the transaction by Sylvester who paid the attorney’s fee. According to Vogel, plaintiff and Sylvester, who was accompanied by his wife, told him of the arrangements which had been reached between them for the transfer of the farm to the Bohnerts. Sylvester said, “Curt and Mary done the talking, we listened.” Vogel testified that the plaintiff “was familiar with what the situation was to be. They had discussed it among themselves and she seemed to be in complete accord with what was discussed there and she made some suggestions as to things she wanted, and the reason she wanted to sell because she was out of money.”

On September 2, 1954, plaintiff returned to the outpatient department of the State Hospital in Farmington. The hospital records noted that she “was not eating or sleeping well and complains of being depressed.” Apparently Sylvester brought her to Farmington on this occasion. On Tuesday, September 7, she returned to the hospital where she received a series of four electric shock treatments, the last on Wednesday, September 15. The hospital note on this date states: “Patient slowly getting over depression with EST. Is staying in nursing home downtown until finished treatments. Being away from family may also have helped. To return Friday.”

On Friday, September 17, plaintiff did not appear for treatment. The hospital records show that she “packed up and left nursing home stating she was going home.”

How the plaintiff returned to Perryville is not clear. In any event, on the following day, September 18, 1954, plaintiff and Sylvester went to Vogel’s office. There plaintiff executed a deed conveying the farm to the Bohnerts. The parties also executed an agreement, apparently prepared in advance, under which the Bohnerts were to execute a 5-year note for $2,000, payable to plaintiff, without interest, to be secured by deed of trust on the property conveyed. The Bohnerts agreed that plaintiff could live in a small house which they had constructed near their residence on the 70-acre farm and that they would furnish the plaintiff necessary food and fuel. Plaintiff was to pay $30 per month for the use of the house, food and fuel, the amount to be credited monthly against the $2,000 note. The Bohnerts agreed to pay plaintiff’s funeral expenses, expenses of her last illness and other claims against the estate of the plaintiff up to an amount equal to the balance on the $2,000 note at the time of her death. Upon payment in full of the $2,000, plaintiff would have the privilege of remaining in the house and receiving food and fuel for $30 per month.

The note and deed of trust were executed, the deed of trust by Sylvester and his wife and the note by Sylvester alone. The deed from plaintiff to the Bohnerts bore revenue stamps in the amount of $3.30. That portion of the apparent purchase price of some $2,500 to $3,000, which the revenue stamps indicated, in excess of the $2,000 represented by the note, was explained as compensation to Sylvester for previous services which he had performed for the benefit of the plaintiff. The deed was filed for record on September 20, 1954. The deed of trust was not recorded.

Plaintiff moved to the little house on the Bohnerts’ farm. She described it as a “chicken house. It had chickens in it.” The note was endorsed by Sylvester for $30 payments for each month from October 18, 1954 to February 18, 1955.

On March 31, 1955, Anna Bohnert filed an “INFORMATION OF INSANITY” in the Perry County Probate Court charging plaintiff was “insane.” A hearing was held on the information on April 1, 1955 and an adjudication made that plaintiff was “a person of unsound mind and * * * a fit subject for State Hospital Number Four * * Plaintiff was still living in the small house on the farm at that time. On April 18, 1955, she was admitted to State Hospital No. 4 where she remained until June, 1955, when she was “paroled” to her sister Anna. At the time of the trial, plaintiff was living alone in Perryville.

The petition in this action was filed October 5, 1960.

On the question of the value of the farm, the Perry County Assessor testified for plaintiff that the farm was assessed at $2,-050 as of January 1, 1954, based upon approximately 20% of its cash value. The County Board of Equalization reduced the assessed valuation to $1,800 in July, 1954. In 1955, an order of the State Tax Commission resulted in an increase of the assessed valuation to $3,450, supposedly approximately 30% of cash value. In cross-examination the assessor acknowledged he had not visited the farm and was not acquainted with its condition. The trial court found his testimony “not particularly persuasive.” We concur in such finding. Defendants’ witnesses valued the land in 1954 at between $10 and $15 per acre.

On August 22, 1955, Sylvester applied to the Federal Land Bank for a loan to be secured by a deed of trust on his two farms. At that time he gave the 158^-acre farm a value of $5,000, explaining that he had spent $400 in liming and clearing the property. Testimony indicated that, at the time of the trial, the farm was valued between $12,000 and $16,000. The trial court found its value at the time of the deed to have been $6,000.00.

On the issue of plaintiff’s mental capacity at the time of execution of the deed, plaintiff’s principal witness was Dr. E. F. Hoctor who was superintendent of the Farmington State Hospital in 1954 and 1955. He had not seen the plaintiff as an outpatient in 1954, but had seen her when she was admitted in 1955. Doctor Hoctor’s testimony was equivocal in response to a question as to the competency of the plaintiff in September, 1954. He stated: “It would be difficult to say with absolute certainty. I could only say that she apparently had an anxiety state, a profound depression, and just what her absolute capabilities were on that date, I could not say with certainty.” He stated he didn’t think it would be advisable for a person in the condition of plaintiff to enter into a business transaction on September 18, 1954. The doctor stated that impairment of memory is a result of electric shock therapy, but that, in his opinion, the plaintiff would not, on the date of the deed, by reason of the electric shock treatments which she had just received, have had a loss of memory about those things that had been discussed prior to the treatments. Doctor Hoctor testified that the plaintiff was neurotic but not psychotic.

Subsequent to closing the hearing the court permitted the plaintiff to reopen her case to present additional testimony on the question of her mental capacity. At the hearing at that time, in response to a question by the court, Doctor Hoctor stated that, on the 18th day of September, 1954, plaintiff had the capacity to understand in a reasonable manner the consequence of executing the deed. The deposition of Dr. Walter L. Moore, a psychiatrist in St. Louis, was also introduced. In it he expressed the opinion that a person who had undergone treatments such as the plaintiff had was not competent to execute any business or understand what she was doing.

We will not reiterate here the often-expressed principles which govern the determination of a case of this nature. See Houghton v. West, Mo.Sup., 305 S.W.2d 407, 411-412(1-6); Shaw v. Butler, Mo.Sup., 78 S.W.2d 420, 428(3, 4); Cruwell v. Vaughn, Mo.Sup., 353 S.W.2d 616, 624(1-8). We are mindful of such principles and of our function on the review of a case such as this.

Here we have as the grantor of a deed a 63-year-old single woman suffering from mental illness. She had been under psychiatric care in January, 1954. When she went to Oak Ridge in February, 1954, she was depressed. “She didn’t remember very-good. She was confused about things and people.” According to her sister, who described herself as “the only one” close to plaintiff, the plaintiff “just didn’t have, you might say, a friend on earth.” Even her sister displayed rather obvious hostility toward the plaintiff. “I had to do things for her. * * * If she doesn’t get her way she pouts, everything is forcing. That is still not nice. She wants to make out like I am a criminal. She sends me away from her. She snaps me, she sasses me.” There is little cause for wonder that when Sylvester called upon plaintiff at Oak Ridge, “she was happy to see me.” The subject of the farm came up and, according to Sylvester, “she talked like she would sell it to me. I had a boy coming on and I could use it. I needed more land.” (Whether these are Sylvester’s thoughts or suggestions advanced to him by the plaintiff is not shown.) At any rate, Sylvester’s interest was sufficiently aroused that he returned to visit Aunt Mary within a week or two and the subject of the farm was again discussed. Mary stayed at Oak Ridge for two or three months from February 15, 1954. According to Sylvester, he must have rented the farm in May because that is when corn should be planted. Sylvester stated that, after his second visit to Oak Ridge, “she was coming to me or calling me. She was really on the ball all the time.”

Although the appellants state that the suggestion to lease the farm came from plaintiff, it appears that the idea originated with Sylvester. His testimony was that he told plaintiff he wasn’t going to buy the farm. “I was going to rent if you will rent it to me.” Plaintiff agreed to this arrangement. When asked what the rental terms were, Sylvester replied, “She wasn’t particular.” He then added, “She wanted to get me started, thought I might get interested enough to buy it.” (Again, whether the latter is Mary’s statement or merely Sylvester’s conclusion is not stated.) At any rate plaintiff imposed sufficient confidence in Sylvester to rent the farm to him on an indefinite arrangement. She further accepted his telling her that he was unable to produce any crop of value from the farm. She received no rental from him and apparently made no complaint on that score.

By Sylvester’s account, the eventual arrangement for the purchase of the farm was arrived at only after he found that the corn crop which he planted in 1955 had failed. He told plaintiff he could not continue renting the farm and thereafter the sale arrangements were worked out. We note that in his deposition Sylvester testified that the arrangements were worked out in June, May or June. Then at the trial he testified they were worked out in June or July. In view of his testimony regarding the effect of the poor corn crop upon the transaction, the latter date would appear to be more nearly reasonable.

Sylvester related that plaintiff first stated that the only way she would sell the farm would be “if she could go with the place.” He stated that was not acceptable to him and that they finally worked out among themselves what the arrangements should be. Sylvester then selected an attorney who would handle the transaction. Plaintiff relied upon Sylvester for that purpose. She did not know the attorney who was selected. Vogel thought that he “was representing all of the parties when they came in.” On Sylvester’s deposition, portions of which were read in evidence by plaintiff as admissions against interest, he stated that he and his wife took plaintiff to Vogel’s office and “had Mr. Vogel explain it to her.” Just what necessity there was for Vogel to explain to plaintiff the transaction which, according to the Bohnerts, had previously been agreed to between the plaintiff and themselves is not clear. We further note that, although Sylvester testified that he did not go to Vo-gel’s office except in the company of Mary, Vogel testified that he “saw two or three of them together at least twice, probably Mr. Bohnert a few more times.” This certainly would indicate that Bohnert did visit Vogel without Mary’s being present.

The first visit to Vogel by Mary and the Bohnerts took place prior to the outpatient treatment which Mary received at the State Hospital in July. On her deposition Mrs. Bohnert testified that she made two trips to Vogel’s office and that her trips to Farmington were in between the trips to Vogel’s office. Inasmuch as Mrs. Bohnert was not present on September 18, which was shortly after Mary returned from Farmington after the second series of treatments, Mrs. Bohnert must have been referring to the July trips to Farm-ington. In any event, according to both Mrs. Bohnert and her husband, when the three of them visited Vogel’s office the second time, Vogel had prepared the documents necessary to effectuate the transaction, but Vogel “still didn’t think we ought to sign over because she wasn’t fully decided on it.” Again we note that this seems to be inconsistent with Sylvester’s position that Mary was unduly anxious to sell the farm to him, kept pushing him to buy it, and his position that all of the arrangements had been agreed to prior to any visit to Vogel’s office.

Sometime following the second visit to Vogel’s office Mary returned to Farming-ton. She underwent a second series of electric shock treatments. Two days after the last treatment and on the day when she was to receive another, she left Farm-ington and returned to Perryville. The following day she and Bohnert went to Vogel’s office and the documents were executed. The consideration for the deed, as evidenced by the documentary stamps, amounted to between $2,500 and $3,000.00. According to Mary “one time it was $3,000 and came down to $2,000.00.” Bohnert explained the additional consideration as for “the favors I had done her or something.” “I took her here and there. I never charged her anything, she wouldn’t give me nothing.” However, he did not discuss with Mary payment for such services. Vogel “assumed” that the additional consideration was for service Bohnert had done for Mary and “he considered that part of the consideration.” Vogel did not know whether he said anything to Mary about the part of the consideration represented by prior services on the part of Bohnert.

A case such as this must be decided upon its particular facts. Our decisions have not attempted to delimit the situations which will give rise to a confidential or fiduciary relationship in such cases. There must exist “a special trust and reliance which involves some fiduciary obligation on the part of the person so trusted, although it need not be a strictly technical fiduciary relationship.” Flynn v. Union National Bank, Mo.App., 378 S.W.2d 1, 10-11(14). Here we think that the evidence did show the existence of special trust and reliance by Mary upon Sylvester. She was willing to entrust the rental of the farm to him without any particular arrangements. She left to his judgment the selection of an attorney in the transaction. Although her reliance upon Sylvester otherwise was not in business matters, the particular situation involving her mental state, of which Sylvester obviously had knowledge, although he endeavored to minimize his information, places the latter’s activities under special scrutiny. 26 C.J.S. Deeds § 62b, pp. 768-769. Wilhoit v. Fite, Mo.Sup., 341 S.W.2d 806, 813(1-3). Knowing what he did of his aunt’s mental condition and of her reliance upon him, he was under an obligation to deal with her in a manner other than he would have been free to do had this been a genuine arm’s length transaction as it purported to be.

Sylvester’s conduct subsequent to the transaction certainly casts doubt upon his good faith. His deed was recorded promptly. Mary’s deed of trust was never recorded. Within a short time, after having spent $400 for improvements on the property, he gave it a value of $5,000. In connection with the application for the Federal Land Bank loan, he stated that there were no outstanding liens on the land. He knew full well at that time that Mary held a deed of trust on the property. He merely listed his indebtedness to her as an open debt. He must have had some reason to be confident that her deed of trust was not going to be placed on record. Two years later, although Mary lived in the house provided for only a few months and no further payments were made on the $2,000 indebtedness to her, Sylvester in applying for a loan completely ignored the obligation to Mary.

Even in the absence of a fiduciary relationship, the evidence here might well afford a sufficient basis for setting aside the deed on the grounds of undue influence. Although Vogel testified that plaintiff clearly understood the transaction and was agreeable to it, the fact is that the transaction was not what plaintiff had, according to Sylvester, originally suggested (“The only way she would sell the farm was that she would go with it”). She was reluctant to accept the arrangement finally worked out. She was not fully informed regarding the consideration. Finally, her mental state was not normal. All of these circumstances tend clearly to show that the deed was in fact procured by Bohnert as a result of his influence upon plaintiff which rose to the mark of such overper-suasion as to amount to a substitution of Bohnert’s will for that of plaintiff. Peine v. Safer, Mo.Sup., 289 S.W.2d 101, 109(4-6).

However, we consider that the trial court’s finding of a fiduciary relationship was justified and that the evidence clearly raised an inference of undue influence which defendant failed to rebut. Therefore we will affirm the court’s decree setting aside the deed. We do not consider the failure of plaintiff’s petition specifically to offer generally to do equity a sufficient ground to require otherwise. The petition states that plaintiff is willing to do equity, although the specifc offer is merely to deliver to defendants the note and deed of trust executed by Bohnert. However, the petition asks for “such other relief as is meet and just in the premises.” This is a sufficient indication of plaintiff’s willingness to make what restitution the court may think the case demands. Githens v. Butler County, 350 Mo. 295, 165 S.W.2d 650, 653(9, 10).

As for plaintiff’s appeal, the trial court, pursuant to Civil Rule 82.06, V.A.M.R., designated as final for purposes of appeal that portion of its judgment and decree setting aside the deed. It entered further judgment, specifically designated as interlocutory in character, against the Bohnerts for the amount of the outstanding indebtedness to the Federal Land Bank, such judgment to stand discharged upon the release of the land here in controversy from the lien of the bank’s deed of trust. The money judgment was also ordered held in abeyance until the issues remaining in the case were disposed of.

In her petition plaintiff asked for an accounting. After the trial and before final judgment, plaintiff filed a motion to dismiss that portion of her claim in which she sought an accounting. The trial court overruled the motion and defendants filed an amended answer in which they alleged that they had made permanent and extensive improvements on the land which would increase the value thereof so that the value was many times that at the time of the deed.

Plaintiff filed an after-trial motion to amend the decree by adding to that portion of the decree designated by the court as final a paragraph which would have ordered money judgment against the Bohnerts for $13,057.67, the judgment to stand discharged if within 60 days the land was released from the lien of the deed of trust. The essential ground for the motion was that there remained no issue to be disposed of in the case, plaintiff having moved to dismiss her claim for an accounting.

Obviously plaintiff is attempting to appeal from that portion of the decree which the trial court designated as interlocutory. The trial court was authorized to designate a portion of its decree final and to retain control of a portion thereof. As to the latter, there is no final appealable judgment and defendants’ motion to dismiss plaintiff’s appeal will be sustained.

The judgment is affirmed on the appeal of Sylvester and Albertine Bohnert.

Mary Schnurbusch’s appeal is dismissed.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

HYDE, HENLEY and EAGER, JJ., concur.

HOLMAN, J., concurs in result in opinion filed.

FINCH and DONNELLY, JJ., concur in result and concur in separate concurring opinion of HOLMAN, J.

STORCKMAN, C. J., dissents and adopts as dissenting opinion the Memorandum of Dissent filed by HOUSER, C.

HOUSER, Commissioner

(dissenting).

I respectfully dissent from the proposed opinion for the reason that I do not think there is clear, cogent and convincing evidence justifying cancellation on the ground of mental incapacity, fiduciary and confidential relationship, or undue influence amounting to a substitution of Sylvester Bohnert’s will for that of plaintiff.

The opinion, which upholds the cancellation of this deed on the basis of a fiduciary relationship and undue influence, depends upon the following to show confidential relationship : that plaintiff rented the farm to Sylvester under an indefinite arrangement; acquiesced in his statement at the end of the crop year that he was unable to produce a crop of value; did not complain of not receiving any rent; relied upon Sylvester to select an attorney to handle the transaction, and that Sylvester drove plaintiff to Farmington several times for outpatient visits to the mental hospital there. The opinion concedes that plaintiff did not otherwise rely upon Sylvester in business matters. I do not think this is sufficient to establish a fiduciary or confidential relationship between the parties.

The opinion depends upon the following to show undue influence: the fact that her mental state was not normal and that she was undergoing treatments at a mental hospital in close proximity to the date of the execution of the deed; that the transaction finally agreed upon was not what plaintiff had originally suggested; that plaintiff was reluctant to accept the arrangement finally worked out, and that she was not fully informed regarding the consideration. I do not think that this is sufficient to establish undue influence or that the court can infer undue influence therefrom. The most that can be said is that it shows an opportunity to exert undue influence, but this is not suf-ficent to invalidate a deed — its actual existence must have been shown. Cruwell v. Vaughan, Mo.Sup., 353 S.W.2d 616.

From the recital of facts in the opinion I would reverse the judgment on the Boh-nerts’ appeal.

HOLMAN, Judge

(concurring in result).

I do not agree that the evidence on the issue of undue influence was sufficient to warrant setting aside the deed but I am of the opinion that the deed should have been set aside because of the mental incapacity of plaintiff. I therefore concur in the result of the principal opinion which affirmed the judgment.