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    GILLIE GLASCOCK and EMMET GLASCOCK, a Minor, by GILLIE A. GLASCOCK, Guardian, v. MELVIN GLASCOCK and G. M. GLASCOCK, Appellants.
    Division Two,
    March 9, 1909.
    1. DEED: From Wife to Husband: Fraud. A married woman is legally competent to convey her real estate to her husband without the intervention of a third party. And a deed made by her to him, for the expressed consideration of one dollar, which was not paid, upon his representation to her that, there being no children, if .both died, the property would go to her heirs, and she deeming that unfair executed the deed in order that if either died the other might have the use of the property, cannot, after the title has passed into third parties, who knew nothing of those representations, be set aside as fraudulent.
    2. -: Duress: Evidence. Plaintiff testified that her husband told her that unless she signed a deed to lots in Dexter he would kill her, but on cross-examination she testified that “he did not come right out and tell me, but he told me to get myself ready and go to Essex and sign that deed, and I did.” The notary who took her acknowledgment wrote into the certificate that, She “said she assigned that was enough,” and testified that, when he propounded the usual questions, “she said she had signed the deed and that was sufficient.” There was no evidence that the grantee knew of the threats or duress. Held, insufficient to authorize a cancellation of the deed, although the husband afterwards became insane.

      3. MORTGAGE: Cancellation: Duress. A note bearing the genuine signatures of the makers imports that the payee furnished the consideration therein named, and the burden is on the maker to show the contrary; and where a suit is brought to cancel the mortgage securing the note upon the ground of duress the court requires clear, cogent and convincing evidence establishing the fact. And where one of the makers (a wife) testifies that she signed the note and mortgage under duress of the other (her husband), and that she knew nothing about whether her- husband got the money or not, and defendant shows that he not only furnished the money and at plaintiffs written request, hut that the deed of trust was freely executed by her, that his act in furnishing the money was one prompted by brotherly affection, and that the whole transaction consists with good .faith and fair dealing, the mortgage will not be cancelled.
    4. -: Insurance Money. Where there was a valid deed of trust, insurance money arising out of a destruction of .a house on the mortgaged lot cannot he awarded to the mortgagor.
    5. -: Dower. Where there is a valid deed of trust and the mortgagee buys the property at the foreclosure sale, the court cannot decree that one of the mortgagors is entitled to dower in the property. Where she alleges that by agreement between her and the mortgagee he was to buy in the property for her, if she is entitled to anything it is to redeem the whole property by paying to the mortgagee his outlay in acquiring the title at the trustee’s sale, and not to dower therein.
    Appeal from Stoddard Circuit Court. — Now. J. L. Fort, Judge.
    Reversed (with directions).

      Wammack & Welborn for appellants.
    (1) In an equity case the appellate court will review the finding of the chancellor on questions of fact. Hoeller v. Haffner, 155 Mo. 589; Kinney v. Murray, 170 Mo. 707; State ex rel. v. Jarrott, 183 Mo. 219; Myers v. Schuchman, 182 Mo. 177; Bell v. Campbell, 123 Mo. 20. (2) And will enter final judgment for the party entitled to judgment. Mill Co. v. Sugg, 169 Mo. 135. (3) When a grantor in a deed of land seeks its cancellation and the reinvestment of title on the ground of fraud, duress or mistake, the onus of establishing the same is on such g'rantor, and before the relief asked will be given the fraud, mistake or duress must be established by clear and convincing evidence Keiser v. Gammon, 95 Mo. 224; Jackson v. Wood, 88 Mo. 76; Bryan v. Hitchcock, 43 Mo. 527; Trust Co. v. Browne, 177 Mo. 412; Davis v. Lister, 64 Mo. 46; 6 Cyc. 336. (4) This class of cases is ánalagous to that class where a resulting trust is sought to be established by parol evidence. Jackson v. Wood, 88 Mo. 78. (5) A decree and finding in equity must be consistent with, and embraced within, the pleadings and proof. Ross v. Ross, 81 Mo. 84; Newham v. Kenton, 79 Mo. 382.

      Keaton & Keaton for respondents.
    (1) Mrs. Glascock was a competent witness as to her husband’s threats upon her life by which the fraud was perpetrated, against her and the undue influence exercised over her resulting in the wrongs. Hatch v. Rollins, 158 Mo. 190. Melvin Glascock was an incompetent witness to testify to the many transactions and the dealings and contracts he had with L. O. Glascock, who had been insane for about ten years, who is dead and was dead at the time of the trial. R. S. 1889, sec. 4652. (2) In this equity case the appellate court will review the findings of the chancellor on the question of fact, and render a final judgment for the party entitled to the decree “or give such judgment as such court ought to have given, as to them shall seem agreeable to law.” R. S. 1899, sec. 866. The trial court should have set aside the two warranty deeds for the eighty acres of land and lot 10 in Dexter, which were represented to plaintiff Gillie A. as mortgages, and have ordered the property sold, and an account taken between the parties as to the several amounts advanced by defendant, Melvin Glascock, and the eighty acres of land being sufficient to pay all such claims nearly twice over,' and defendant having agreed with plaintiff and said he would make it pay all the debts, it should have been so applied and have left all thé other property unincumbered for the benefit of plaintiffs. State ex rel. v. Jarrott, 183 Mo. 218. (3) In this case the trust and confidential relations between the parties, as well as the insanity of Dr. L. O. Glascock, is proven beyond a reasonable doubt; “the fraud, mistake or duress is established by clear and convincing evidence, and the burden of proof is wholly on the défendants. ’ ’ Dingman v. Romine, 141 Mo. 480; Mowry and Kettering v. Norman, 204 Mo. 194; Bradford v. Blossom, 207 Mo. 229; Jackson v. Wood, 88 Mo. 76; Dausman v. Rankin, 189 Mo. 677; Strong v. Whey-bark, 204 Mo. 348; Roberts v. Bartlett, 190 Mo. 700. The findings and decree of the -court were all within the issues presented by the pleading and evidence, as far as they went, and should be extended to do- complete justice, as-the court of equity had grasp- and jurisdiction of the subject-matter and of the parties. Real Est. Sav. Inst. v. Collonious, 63 Mo. 295; Snyder v. Am, 187 Mo. 175.
   GANTT, P. J.

This is a suit in equity by the widow and minor son of Dr. L. O. Glascock, deceased, against Melvin Glascock and G. M. Glascock, his brothers, to have certain deeds and conveyances executed by her deceased husband and herself declared fraudulent and void on account of the alleged fraudulent acts of the defendants and on account of duress by threats, and to divest the title out of the defendant Melvin Glas-cock in and to certain real estate and vest the same in plaintiffs.

The petition alleges that said L. O. Glascock and plaintiff Gillie were at the time of his death husband and wife and the plaintiff Emmet their only son, and that at that time Doctor Glascock and the plaintiff Gillie were the owners in fee of all of lots numbered 1, 4 and 6 and out-lot 3 in block 26, and of lot numbered 10' in block 2 of Deal & Boughton’s addition to the city of Dexter, and lot numbered 1 of the northwest quarter of section 4, and all of the land west of Bess Slough in the northwest corner of section 3, all in township' 24, range 11, and all in Stoddard county, Missouri. That the plaintiff, Gillie Glascock, was the owner in her own right of all of lots one, four and six in block 26, in the city of Dexter, and that plaintiff earned money by her separate labor and from time to time furnished her said husband sums of money; that the said L. O. Glascock was a practicing physician and earned good money, and that their joint means purchased their property; that the above real estate of the plaintiffs and the property purchased by the said L. O. Glascock by and with the means aforesaid was of the value of $4,500, and that the same was fully paid for and free of all incumbrances; that about and prior to 1895, Doctor Glascock began do lose his mind and was finally adjudged insane and incapable of transacting business and confined' in the insane asylum at Pulton on the 17th of November, 1901, where he died on June 17th, 1903. It is further alleged that when Doctor Glascock began to lose his mind, he became dangerous and threatening towards the plaintiff Gillie, and he seemed to be seized with an unnatural design to strip the plaintiffs of their property, and bestow it upon the brother, Melvin Glascock, and when his wife remonstrated with him, he said to her, “You will sign all papers I want you to or I will kill you. ” It is then alleged that Doctor Glascock colluded with the defendant Melvin to enable the latter to obtain deeds of conveyance of all the property of the plaintiff Gillie and the doctor. The petition then alleges specifically that in pursuance of the said collusion and design on November 27, 1895, Melvin Glascock came from Tennessee to Missouri, and soon after a conference with Doctor Glascock, Doctor Glascock executed a warranty deed conveying lot ten in block 2 of Deal & Boughton’s addition to the city of Dexter to the defendant Melvin for the alleged consideration of three hundred dollars, and represented the same to be a mortgage to secure a certain sum of money; that plaintiff Gillie refused to sign and execute the same and thereupon the doctor declared and threatened that if she did not sign and execute the same he’ would kill her; that under fear of this threat she executed the said deed, which she afterwards learned was a warranty deed', for which she received no consideration, and that the same was procured by duress for the purpose of investing the title in Melvin.

It is then alleged that on November 27, 1895, by like fraudulent representations and by like means and the same threats and without consideration another warranty deed was procured from Doctor Glascock and plaintiff Gillie to Melvin conveying lot numberéd 1 of the northwest quarter of section 4, township 24, range 11, for the pretended consideration of five hundred dollars.

That on July 8, 1897, by the same means of duress, a warranty deed was obtained from the plaintiff Gillie directly to her husband, Dr. L. O. Glascock, for the pretended consideration of one dollar, "which was never paid, purporting to convey all of lots numbered 1, 4 and 6 in block 26, in the city of Dexter.

For practically the same causes the following other conveyances were assailed in the bill: A deed of trust from plaintiff Gillie to L. O. Glascock to Melvin Glascock dated November 8, 1897 conveying lots one, four and six and out-lot three in Dexter, and purporting to be given to secure a note of $725 due two years after date; a warranty deed from plaintiff Gillie and her husband to defendant G. M. Glascock of date December 10, 1900, and a deed of the same date from G. M. Glascock to L. O. Glascock to lots one, four and six and out-lot three in block 26 in Dexter.

It is then alleged that at the time of Doctor Glascock’s death the premises including all west of Bess Slough in the northwest corner of lot two of the northwest quarter of section 3, township 24, range 11, and known as Mill property, was incumbered by a deed of trust of $125 and plaintiff Gillie desiring that the same should be sold, the defendant Melvin agreed to have it advertised and sold under the deed of trust and to buy it in for her, but instead of so doing, Melvin bought in the property in his own name for $25, and afterwards sold the same for f200, and never accounted for the overplus and appropriated to his own use the rents of the property after June 8, 1902.

It is then alleged that Doctor Glascock’s office, situated on lot one in Dexter, was insured and the premiums on this insurance were paid out of plaintiff Gillie’s money, and that this office has since burned and that the defendant Melvin was about to collect the.insurance. There is also a charge that the defendant Melvin has collected all the rents on lot one of the northwest quarter of section four and has never accounted for the same.

The answer of G. M. Glascock was a general denial.

Defendant Melvin admitted that he obtained the title to lot ten, block two, Deal & Boughton’s addition to Dexter, and to lot number one of the northwest quarter of section 4, township 24, range 11, by the deeds set out in plaintiff’s bill, and that on November 8, 1897, Dr. L. O. Glascock and plaintiff Gillie executed their joint promissory note to defendant for $725 and secured the same by their deed of trust on lots one, four and six and out-lot three, block 26, in Dexter. Further answering defendant Melvin stated that his dealings with the said L. O. and Gillie Glas-' cock in and about the property mentioned in the bill were all in the utmost good faith on the part of the defendant and at the urgent request and solicitation of said L. O. and Gillie Glascock, and defendant paid the $800 mentioned in the two deeds of November 27, 1895, and also the $725 mentioned in the said deed of trust of November 8, 1897, and that since the execution of the deeds of November 27,1895, L. O. and Gillie Glascock have had possession of and collected all the rents on said lot in Dexter under an agreement that they would pay the taxes and keep up the insurance, which they failed to pay, and defendant was forced to pay the same, amounting to $53.18, and there was the same agreement as to lot one of the northwest quarter of section four, township 24, range 11, which they also failed to observe, whereby defendant was 'Compelled to pay $16.67 taxes on said land. Defendant also alleged that he had been forced to pay all the taxes and insurance on lots one, four and six and out-lot three in Dexter, since the execution of the deed' of trust of November 8, 1897, in order 'to protect his lien thereon.

In relation to the property described as that west of Bess Slough in the northwest corner of lot two of the northwest corner of section 3, township 24, range 11, and known as Mill property, defendant alleged that plaintiff Gillie and L. O. Glascock executed a deed of trust thereon on December 29, 1899, to secure a debt of $125 to A. H. Carter and J. N. Miller, that this debt became due and said L. O. and Gillie were unable to pay the same and at their request defendant took an assignment of the same and paid said debt; that afterwards Doctor Glascock was sent to an asylum and it became necessary to foreclose this deed of trust in order to get the title in a condition in which it could be handled to the best interest of all concerned and accordingly said property was advertised according to the terms of the deed of trust and defendant Melvin became the purchaser of the same for $75 and afterwards sold the same for $200. And as showing his relation to the said Mill property he rendered the following:

Dr.

To amount sale of mill............$200.00

To rent collected on property...... 26.00

C'r.

By note and deed of trust.......... $130.30

By taxes, cost of sale, repairs...... 74.31

By cash paid funeral expenses of Dr. Glascock........,............ 131.80

By taxes and insurance on lot one.. 53.18

By taxes on eighty acres aforesaid.. 16.67

$226.00 $406.26

The defendant stated that he charged the last two items to this Mill account for the reason that they were justly due for moneys paid for and on behalf of plaintiff and her said husband and he has no lien or security -therefor. Defendant Melvin further states that there is still due him on said property the sum of $180.26, and although he purchased the- said property in open competition with the world, yet upon the payment to him of the said sum by plaintiff he will gladly reconvey said land to them or either of them.

In reply the plaintiffs denied all the new matter in the answer and alleged that the charges on the Mid property of $74.31, $53.18 and $16.67 are not proper charges on said property and were made for the purpose of burdening the same so as to prevent redemption by plaintiffs. They further state that the payment of Doctor Glascock’s funeral expenses by defendant was wholly voluntary.

The cause was tried at the March terra, 1905, of the circuit court of Stoddard county, and resulted in a decree for the plaintiffs by which the title to lots one, four and six in block 26 in the city of Dexter, was vested in plaintiff Gillie Glascock and the deed of conveyance- made by her and her husband, Doctor Glascock, on the 8th of July, 1897, canceled, on the ground that said deed was procured by fraud by Dr. L. O. Glascock from his wife; and also canceling the deed of conveyance to said lot made by L. O. Glascock and Gillie Glascock to defendant G. M. Glascock on the 10th of December, 1900, and the deed to the same lots by G. M. Glascock to L. O. Glascock on the same day; and canceling the deed of trust given on said lots by L. O. Glascock and Gillie Glascock to the defendant Melvin Glascock on the 8th of November, 1897, on the ground that the said deed of trust was executed under the duress of Dr. L. O. Glascock of which duress the defendant Melvin had knowledge at the time. The court further found that the plaintiff Gillie A. Glascock was entitled to the insurance on the property which was located on one of said lots, which property had been déstroyed by fire. The court further found that plaintiff Gillie was entitled to dower in lot three, block 26, in the city of Dexter, and in the Mill property. The court further found that Melvin Glascock had a mortgage lien on out-lot three in block 26 in Dexter subject to the dower interest of Gillie Glascock therein. The court further found that the defendant Melvin had the title to the two acres known as the Mill property subject to the dower interest of Gillie Glascock. The court then found that the defendant Melvin was the owner in fee of lot numbered 10 in block 2 in Deal & Boughton’s addition to Dexter and also of lot numbered 1- on the northwest quarter of section 4 in township 24, range 11, in Stoddard county. The cost of the suit was adjudged against defendant and defendant Melvin was enjoined from foreclosing Ms deed of trust on lots one, four and six of block 26 in tbe city of Dexter.' After unsuccessful motions for a new trial and in arrest of judgment tbe defendant appealed to this court.

To maintain the allegations of her petition the plaintiff Mrs. Glascock offered in evidence a warranty deed from herself to her husband L. O. Glascock dated July 8, 1897, conveying the lots one, four and six in block 26 in the city of Dexter for the alleged consideration of one dollar, and a deed dated December 13, 1900, by L. O. Glascock and herself to G. M. Glascock, conveying the same lots for an alleged consideration of one dollar. When offering this deed plaintiff called special attention to the acknowledgment of the deed, which was in these words:

“State of Missouri, County of Stoddard, ss.
“On this 13th day of December, 1900, before me personally appeared L. O. Glascock and Gillie A. Glascock, ‘ said she ■ assigned that was enough, ’ his wife, to me known to be the persons described in and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed.
“In testimony whereof, I have hereunto' set my hand and affixed my official seal, at my office in Essex, Missouri, the day and year first above written.
“My term of office, as a notary public, will expire October 9, 1901. William T. Arnold,
“Notary Public.”

Plaintiff then offered in evidence a warranty deed of the same date from G. M. Glascock, a single man, to L. O. Glascock, conveying the same lots, which deed was recorded December 13, 1900.

In regard to the Mill property, Mrs. Glascock testified that Melvin Glascock paid off a mortgage on this property amounting to $130 and afterwards wrote from Tennessee that “when he came out here he would make it secure.” But he never did anything with it but left it an open account. After Doctor Glascock died both she and Melvin wanted the property sold and Melvin advertised it for sale telling her that he would buy it in and have it put in her name; that he bought it in his own name and told her that whenever they put up $200' in the bank she could give up the keys; that after that she was advised that the $200 was in the bank and she gave up the keys; that defendant got the full $200, and upon being asked by her what he did with it, he said he paid insurance with it. She further stated that she did not go to Bloomfield and hid on this Frisco property because she believed Melvin would huy it in for her.

In relation to the execution of the other deeds she testified in substance as follows: First, as to the deed of December 10, 1900, from herself and husband to G. M. Glascock conveying the lots one, four, six and three in Dexter, she stated that at first she would not sign it, but the doctor told her if she did not he would kill her and from his actions and looks she knew he would do so, so she signed it. She told G.'M. Glascock what the doctor had done to get her to sign the deed. She never knew that there was a deed given with the consideration of one dollar and she never got the dollar. Upon the-morning that this deed was made she, Melvin, G. M. and Doctor Glascock were at her home at Pinhook and went from there to Essex where she signed the deed. At the time she signed the deed G. M. and the doctor were standing in the door of the notary’s office; Melvin was somewhere in town, but she did not know where. After the deed was signed the others went to Bloomfield to get the deed recorded and she returned to Pinhook. Second, in regard to the deed to the lots in Dexter known as the home place from herself and the doctor she testified in response to a question as to why that deed was executed, as follows: “The deed to the home place in Dexter was in my name and the doctor told me that it being in my name, if we should both die, the place would go to all my folks, and I said it was not fair, we had no children at that time and he said for me to make this deed over to him in his name, and so I did, and I made the deed over to him in order that if we both died that way that it would not be all'in one.”

Third, as to the deed of trust of November 8, 1897, on this home place for $725, she testified this was given without any consideration, she did not know anything about Melvin having the deed, they told her they were mortgages, she never knew there was any deed given except to U. M. Glascock, and they told her that was a mortgage. She signed this deed through fear of- Doctor Glascock. He told her, “If you do not sign that mortgage, I will kill you.” And she told his brother this. “The doctor looked wild out of his eyes and showed that his mind was not right.” “Q. "Who was present at the time the doctor told you he would kill you if you did not sign your name to this deed of trust on the home place — nobody there besides you and him? Ans. No, sir, there wasn’t— they would not let me know anything- about their business — they kept it away from me for about eight weeks. Q. When 'did you tell the defendant here, Melvin Glascock, that you had signed this deed of trust under threats from your husband? Ans. At the time of the first deed I told him more than I did anyone else — I told him all about the doctor losing his mind, and how he talked to me, and I told him that at the garden gate, that he told me, if I didn’t sign this mortgage — he never told me it was a deed — I told him that he said, if I didn’t sign this, that he would kill me — and I signed them through fear, or I would not have signed them. Q. How long after you signed the deed until you told Melvin Glascock about your husband threatening you? Ans. I don’t remember whether or not it was before or afterwards. Q. It wasn’t far from the time yon had told him — about that or probably before that,, that your husband wasn’t in his right mind? Ans. Yes, sir, that I didn’t think the doctor was in his right mind, that if he was, he would not have tried to get me to do anything like that, and I don’t think the doctor had his right mind— I know there was times, even when he bought that mill, that he didn’t have his right mind. Q. What did Melvin Glascock say, when you told him about signing that deed? Ans. He said, ‘Oh, Gillie, surely not,’ and I says, ‘Teeney, I believe he is going crazy— his eyes fairly sparkled.’ Q. What did he say? Ans. He said, ‘surely not.’ ”

On cross-examination, she testified to the following effect:

She lived with Doctor Glascock as his wife, from 1866 to the time he was taken away. Melvin Glascock visited their home frequently, was always agreeable in his conduct and always showed a disposition to see her and the doctor get along in the world. At-the time the doctor was taken away to the asylum, she was living with him at Pinhook. Melvin Glascock came over, but she did not remember of sending for him. She was not afraid of the doctor at the time he was taken away, so long as she could keep him in a good humor, but was afraid of him when he was angry. If she ever told her neighbors that she was not afraid of him and that there was no need of sending him away, she didn’t remember it. She testified that at this time, 1901, she had all the confidence in the world in Melvin Glascock, and that she always thought that he would befriend her and did not think that he would take a penny in the world away from her under any circumstances. She continued to have this same regard for him until he took the Pinhook place away from her. ■ The doctor told her if she did not sign the mortgage he would kill her. He told her that when she signed the first one. When she signed the deed at Essex, he had already told her that if she didn’t sign these mortgages, he would kill her. He told her that morning to get herself ready to go to Essex to sign this deed, and she knew she had to do it. Being asked if the doctor ever told her more than once that if she didn’t sign the deed, he would kill hex', she answered that he told her that if she didn’t sign the mortgage on the home place at Dexter, he would kill her. She further stated that he didn’t come right out and tell her that she had to sign the deed at Essex (with the peculiar acknowledgment) hut he told her to get herself ready to go to Essex and sign that deed and she did. The deed from herself to L. O. Glascock dated July 8, 1897, conveying the lots one, four and six in Dexter, she signed voluntarily because “if he died, it would come back to me.”- That was “way back yonder.” “Q. The morning before you went to Essex to sign the deed, did he tell you that morning that he would kill you, if you didn’t sign the deed? Ans. He did not come right out and tell me, but he told me to get ready to go to Essex and sign that deed and I did. . . . Q. Now, Mrs. Glascock, you stated that you made a deed to L. O. Glascock before you made those other deeds, he did not threaten to kill you to make you do that did he? Ans. No, sir, that was away back yonder, when the deed was made. Q1. And you voluntarily made that deed? Ans. ¿Tes, sir, because, if he died, it would hgye to come back to me. Q. There were no threats made to make you make that deed? Ans. No, sir.” She testified further that she never signed a deed to the eighty acres. They told her it was a mortgage, though she did not know that Melvin ever told her it was a mortgage. She did not know whether her husband went to Tennessee to borrow money or get Melvin to buy the land. She signed the deed of trust for $725 because she had to. She was afraid of the doctor. Evexy paper she signed was because she was afraid not to sign. Melvin never told her he would kill her and never intimidated her in any way to get her to sign it and if he was present she did not know it. She never wrote him to let her have money on the home place or she would lose it. She could not say whether defendant Melvin let the doctor have money from time to time because she never saw it or saw him get it. She had no recollection of giving a deed of trust on the home place to Thomas Ulen. The doctor did not threaten her to get her to sign the Ulen deed of trust. She testified that she and her husband kept possession of the eighty acres until the doctor’s death. They had the use of it after the doctor’s death, defendant Melvin got the rents, she and her husband also had possession and got the rents from the home place in Dexter. Sometimes the doctor paid the taxes and sometimes Melvin.

The notary testified that when the deed was made by Doctor and Mrs. Glascock to G. M. Glascock, the doctor and G. M. were up at the door or had just stepped out. He asked her if she understood the nature of the deed. She signed it. She would not say whether she signed it as her own free act and deed. She simply said she had signed it and that was sufficient.

Mr. Langford testified he knew Doctor Glascock for ten years and worked for him. Never noticed anything wrong with him until about one year before he was taken to the asylum. The doctor had transacted all his business right up to the time he was sent to the asylum.

Mrs. Mentz testified that she thought the doctor acted strangely about eight years before the trial.

On the part of the defendants there were eight witnesses who were well acquainted with the doctor up to the time he was sent to the asylum and there was nothing wrong with his mind up to about one year before he was sent away. He attended to all of his affairs. The evidence on the part of the defendants tended to fully sustain the answer of the defendant Melvin Glascock, and other facts will be noted in the course of the opinion.

The case can only be disposed of intelligently by a consideration of the charges separately and the decree of the court as to the separate tracts of land.

I. The circuit court decreed a cancellation of the deed executed by the plaintiff Gillie to her husband Dr. Glascock, of lots one, four and six, in block 26, in Dexter, of date of July 8, 1897, on the ground that it was obtained by fraud on the part of Doctor Glascock, and also canceled the two deeds, made to confirm that deed, on December 10, 1900. This was the home place in Dexter. The averment as to the procuring of this deed of July 8, 1897, is that it was obtained “by the same means of duress for one dollar, which was never paid.” The only testimony as to the procurement of this deed was given by the plaintiff. She testified, “The deed to the home place in Dexter was in my name, and the doctor told me that, it being in my name, if we both should die, the place would all go to my folks and I said it was not fair. We had no children at that time, and he said for me to make this over to him in his name and so I did and I made the deed over to him in order that if we both died that way, it would not be all in one. ’ ’ She testified that she made the deed voluntarily and without any duress- whatever. There is no charge of fraud in the obtaining of this deed by Doctor Glascock, and plaintiff’s own testimony negatives the charge of duress and every semblance of fraud as to this deed. The conveyance was regular on its face and there is not a scintilla of evidence that the defendant Melvin Glascock had any notice of duress or fraud in procuring the same. That plaintiff, Mrs. Glascock, was legally competent to convey this realty to her husband without the intervention of a third party was established by this court In Banc in Rice, Stix & Co. v. Sally, 176 Mo. 107, and followed in Grimes v. Reynolds, 184 Mo. l. c. 692, and 184 Mo. 694; O’Day v. Meadows, 194 Mo. l. c. 614; Bower v. Daniel, 198 Mo. l. c. 320; Rice, Stix & Co. v. Sally, 198 Mo. l. c. 687; Rossier v. Railroad, 115 Mo. App. l. c. 520.

II. In natural and logical sequence this brings us to the decree of the court also canceling the two deeds of December 10, 1900, whereby Doctor Glascock and plaintiff Gillie conveyed the title to this home place first to G. M. Glascock, his brother, and by the latter back to Doctor Glascock. Obviously these conveyances were conceived and executed by Doctor Glascock on account of the opinion theretofore held by many members of the bar and by both courts of appeals, that the conveyance of July, 1897, did not have the effect of vesting the legal title in Doctor Glascock to this real estate and it was sought to cure this supposed defect by reconveying the property to G.. M. Glascock and have him convey to Doctor Glascock. The circuit court found that the conveyance by Doctor and Mrs. Glascock was invalid, but does not state in its decree upon what ground it based its decree. The ground alleged in the petition is that this deed was procured by violent and furious threats and by duress. The testimony of Mrs. Gl'ascoek alone sustains this charge. She testified in chief that the doctor told her if she did not sign the deed, he would kill her, but in her cross-examination she stated: “He did not come right out and tell me but he told me to get myself ready to go to Essex and sign that deed, and I did.” There is evidence of the notary that when he propounded the usual questions as to executing the same voluntarily, she said she had signed it and that was sufficient. But Melvin Glascock did not know of any duress, if such there was, and whether there was or not, those transactions, if invalid, left the title in Doctor Glascock just as it was, under the deed of July 8, 1897, with an inchoate right of dower in plaintiff, Gillie. In so far as the decree might affect the rights of Melvin Glascock, we think it was not supported by the evidence of plaintiff herself, independent of the testimony on the part of the defendants which positively denies all knowledge of insanity on the part of Glascock and of any threats or duress or involuntary execution of the deed.

III. But even if we are wrong in our construction of the evidence as to the deeds of December 10, 1900, it is obvious they cannot affect defendant Melvin’s security obtained by the deed of trust of November 8, 1897, executed three years before the deeds of December 10, 1900. As already stated, the deed of July 8, 1897, had vested the title to the home place, lots one, four and six in block 26 in Dexter, in Dr. Glascock, by the wholly voluntary act of plaintiff Gillie. This deed of trust was given to secure a note of $725 signed by both Dr. and Mrs. Gillie Glascock, payable two years after date and bearing six per cent interest. The circuit court found this deed of trust was procured by duress of Doctor Glascock, of which defendant Melvin had knowledge at the time. That defendant Melvin loaned Doctor Glascock the $725 at the date of the note and deed of trust is evidenced by the genuine signatures of Dr. and Mrs. Glascock and the possession of the note and deed of trust by Melvin at the time of the trial. By positive statute in this State this note imported that Melvin Glascock had furnished the consideration therein named and the burden was on plaintiff to show lack thereof. [R. S. 1899, secs. 457 and 894; County of Montgomery v. Auchley, 92 Mo. l. c. 129; Taylor v. Newman, 77 Mo. 257.] But Mrs. Glascock simply testified she did not know anything about it. She could not say whether the doctor got the money or not. But the matter was not left to presumption or doubt by defendant’s testimony. He testified that in the fall of 1897 his brother wrote him that he was involved and desired defendant to come over to Missouri and let him have some money, if he could; and Mrs. Glascock wrote in the letter that the ownership of the three lots was in her name, and for defendant to come and she would give the mortgage; that the lots would be sold unless she could get some help; that thereupon he came to Missouri and the doctor and Mrs. Glascock summed up their debts and at first thought $700' would cover all the debts, but found out that would not be enough, and defendant told them to make it $725 and they said that would be ample, and thereupon he let them have the $725 and took their note and this deed of trust. Moreover Melvin’s testimony is strongly corroborated by the fact that Ulen had a mortgage on these lots and that was paid off about this time, although Mrs. Glascock also testified she knew nothing of the Ulen mortgage. The testimony of Mozley and G. M. Glascock and Jeffers sustained defendant as to the furnishing of this money. Over and against this array of evidence we have merely the general statement of Mrs.. Glascock that all the deeds were executed under duress.

While this court is inclined to defer to the finding of the circuit court, it has never abdicated its right to review the findings of the circuit court in chancery cases. [Kinney v. Murray, 170 Mo. l. c. 707; State ex rel. v. Jarrott, 183 Mo. l. c. 219.] Bearing in mind that this is a bill to cancel a solemn written instrument on the ground of duress, and that courts of equity require clear, cogent and convincing evidence in such cases, we are unable to concur in the finding of the circuit court that this note and deed of trust were obtained by duress. The plaintiff’s evidence is entirely too meager and unsupported to justify such a decreé, whereas that of defendant showed that Melvin not only furnished the money and that the deed of trust was freely executed by plaintiff, but that it was the result, in part, of her own request, and was an act on the part of Melvin prompted by brotherly affection, and the whole transaction consists with the utmost good faith and fair and liberal dealing, and at a time when plaintiff’s own evidence shows the doctor was entirely sane.

IV. Having reached this conclusion as to the deed of trust, it'must needs be held that so much of the decree as awards plaintiff Gillie the insurance money arising out of the destruction of the property on one of the lots could not be upheld even if there had been proof that a building had been destroyed by fire, which there is not in this record. -

V. The court decreed dower in the Mill property, bought by Melvin, the defendant, under foreclosure of the deed of trust given by Doctor Glascock and plaintiff Gillie to secure Miller and Carter for $125. There is no claim that this deed of trust was invalid in any degree, but plaintiff insisted that Melvin agreed to buy it for her. The decree is illogical.

If Mrs. Glascock was entitled to anything under her petition as to this property it was a right to redeem the whole title by paying defendant Melvin his outlay in acquiring the title at the trustee’s sale, but the court evidently did not so find, but simply decreed her dower in the Mill property of two acres. The deed of trust being -entirely valid, and defendant having bought the note to protect Dr. and Mrs. Glascock, no doubt can exist of his right to buy the property at the trustee’s sale, especially as this was plaintiff’s desire. Moreover, defendant waived all questions of this kind by offering to let her redeem upon paying his charges thereon, and this was all that the court could have decreed. We think the court erred in decreeing dower in this land to plaintiff Gillie.

The circuit court found for defendant, Melvin, as to lot ten in block two in Deal & Boughton’s addition to Dexter, and as to the eighty acres in lot number 1, section 4, township 24, range 11 in Stoddard county, and we think rightly.

We have carefully read the whole of this record and have conceded the advantage which the circuit court had in seeing and hearing the testimony, but weighing the plaintiff’s own testimony it falls far short of that cogent and satisfactory evidence which a court of equity requires to set aside and cancel solemn written instruments and conveyances and certainly fails to show any of the collusion and fraud alleged against the defendant Melvin Glascock to strike' down and destroy his securities for loans made by him to aid and assist his brother.

The decree of the circuit court is reversed with directions to dismiss the bill.

Burgess and Fox, JJ.f concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    R. A. SKELTON and F. A. BRANNOCK, Appellants, v. SAMUEL ULEN.
    Division Two,
    March 9, 1909.
    1. ELECTION CONTEST: Irregularities: No Fraud. Irregularities committed by tbe judges and clerks at an election which are not shown to be fraudulent, or instigated by contestee, and in which he in no wise participated or derived any benefit from, and by which his vote was not increased, will not authorize the court to declare the whole Vote at the precinct to be void.
    2. -: -: Counting: By Blocks. The taking from the ■ballot boxes of the tickets one at a time, and the placing of all unscratched ballots of one party in a pile, and all unscratched ballots of another party in a pile, and the counting of them ten at a time, though' a separate tally mark is made for each candidate on each, if not instigated by the contestee or in his interest or resulting in Ris favor, and the count was in fact accurate, is no reason for declaring the election at such precinct illegal and void.
    3. -: -: Non-Resident Voter. Where a few legal voters of another township wrongfully voted in the township in question, hut not in sufficient numbers to affect the result if their ballots are thrown out, the election contest will not be upheld.
    Appeal from Stoddard Circuit Court. — Ho». J. L. Fort, Judge.
    Affirmed.

      N. A. Mosley and Wammack & Welborn for appellants.
    (1) The election contested was held in utter disregard of the law in force at the time, governing the holding of elections and commonly known as the Australian Ballot Law, and was therefore invalid. State ex rel. v. Seibert, 116 Mo. 415; Hall v. Schoenecke, 128 Mo. 661. (2) The controlling object of the Australian Ballot Law is to secure an absolutely secret ballot. Every positive requirement which, if • disobeyed, would necessarily defeat this object, should be held mandatory. Hall v. Schoenecke, 128 Mo. 661.

      Geo. W. Munger and Wilson Cramer for respondent.
    (1) Declarations of law 2 and 4 were properly refused by the court: (a) Because they seek to disfranchise honest voters for alleged illegal and irregular acts of public officials over whose conduct the voters had no control. State ex inf. v. Roberts, 153 Mo. 112; Sanders v. Lacks, 142 Mo. 255. (b) Because, there being no positive statutory provision that the doing of the acts complained of shall invalidate the whole vote cast at the precinct where said acts are done, the vote cannot he thrown ont. Hope v. Flentge, 140 Mo. 390; Sanders v. Lacks, 142 Mo. 255. (2) The court, finding against contestant on his first declaration of law, necessarily found that said election was conducted in substantial compliance with the provisions of articles 1 and 2, chapter 102, R. S. 1899', and having found this fact, the finding will not he disturbed on appeal. Hope v. Flentge, 140 Mo. 398; Lankford v. Gebhart, 130 Mo. 621. (3) When the court gave contestant ’s declaration of law numbered 3 and then found against him, it necessarily found that the “primary objects of said election law,” i. e., to preserve the freedom and independence of the voter and the secrecy of the ballot, had been complied with. (4) The acts complained of, if perpetrated, did not “violate the spirit of the law,” that is, they did not prevent the ballot from being a secret one. Therefore, they were not enough to even throw out an individual vote, much less a whole precinct made up of honest votes cast by unsuspecting and honest voters. Hall v. Schoenecke, 128 Mo. 561.
   BURGESS, J.

This is an action, begun in the circuit court of Stoddard county, to contest the election of Samuel Ulen to the office of collector of the revenue of said county at the general election held on November 8, 1904.

At said general election the .contestants, R. A, Skelton and F. A. Brannock, were the nominees respectively of the Socialist and Democratic parties, and the contestee, Samuel Ulen, the nominee of the Republican party, for said office. According to the returns from said county, Brannock received 2,115' votes; Skelton, 133 votes, and Ulen, 2,271 votes. Upon these. returns, the certificate of election was issued to Ulen, who qualified and assumed charge of the office.

In dne time after the election, Skelton and Brannock jointly instituted this proceeding, and at the September term, 1906, of said court, the matter was heard, and judgment rendered in favor of the contestee, from which judgment, after an ineffectual motion for a new trial, the contestants appealed.

The election of Ulen is contested on the ground of alleged irregularities at Dexter precinct, in Liberty township, said county, where 252 votes were cast and counted for Brannock, 36 for Skelton, and 446 for Ulen, a total of. 734; and the effort is made to have the entire vote of this precinct rejected, in which event Brannock would be entitled to the office as being the recipient of the largest number of legal votes cast in said county for said office.

The grounds of contest as set up by the contestants are, in substance, as follows:

1. That the election judges at Dexter precinct wilfully and fraudulently admitted persons other than the. judges and clerks of election into the room where the ballots were being .counted, at the time the count was in progress, in violation of section 6996, Revised Statutes 1899', which provides: “No person or persons shall be admitted' into the room or office where such ballots are being counted, except the judges and clerks of election. Provided, that any political party may select a representative man who may be admitted as a witness-of such counting.”

2. That the election judges fraudulently refused to allow O. D. Bailey, who had been selected by the Socialist party to witness the count of the ballots, to remain in the polling place to watch the counting of the ballots, and that said Bailey was, “with the knowledge and consent of the election judges,” forcibly ejected from the room, in violation of the proviso contained in said section 6996.

3. That said judges fraudulently suffered voters whom they knew were not entitled to vote at Dexter precinct, to vote at that place.

4. That the judges of election “fraudulently failed and refused to furnish the electors who presented themselves to vote for said office of collector of the revenue of said county, and for other offices to he filled at said election, with ballots as provided and required by section 7104 of said Eevised Statutes,” and furnished said electors with one ballot only, instead of one ballot for each political party voted for at said election, unless express demand was made by the elector for said ballots.

5. That no screens were provided for the booths at said polling place, nor guard rails to prevent persons having no authority from coming nearer than five feet of the ballot boxes and booths, and that “divers persons, having no right or authority whatsoever, were in and about the ballot boxes and the booths or compartments, and within less than five feet thereof, while the electors were preparing their ballots, and while the ballots were being exposed for counting by said judges.”

6. That the election judges, in violation of the statute, “electioneered” with the electors who came into said voting place to cast their ballots.

7.. That said judges absented themselves from the polls of said precinct, so that at times less than a majority thereof was present.

8. That the ballots were not taken out of the ballot boxes one at a time to be counted, as provided by section 6996, Eevised Statutes 1899, but were “by said counting judges taken from said ballot boxes in bulk, and by them sorted out and arranged in piles or lots of ten cast for each political party voted for, and in such piles or lots pretendingly counted ten at a time, and thus entered upon the poll books.”

The evidence shows that the polling place was in a large room, eighty feet long and twenty-five feet wide, and which had been used for the same purpose at previous elections. The table of the distributing judges was in front, near the door; the table of the receiving- judges near the center of the room, and that of the counting judges at the further end, some twenty feet back of the voting booths, which were arranged on both sides of the room, near the center. The voters were admitted at the front door, and after voting retired from the room by the same door. There were seven or eight booths, some of which were without screens, and there was no guard-rail provided, as required by section 7103, Revised Statutes 1899.

The only person in the polling place other than the judges and clerks of election, and the voters who came in, voted and retired from the room, was Noah Fields, constable, who kept the door at the. solicitation of the judges. He was not at the counting table till after the polls were closed and the ballots nearly all counted, and he learned nothing about the ballot then. There was no evidence whatever that any of the judges of election electioneered with the voters, or attempted to influence any voter in any way; nor was there any evidence that any person, other than the judges and clerks of election, overheard the count or obtained any information as to the state of the vote until the same was formally announced; nor was it shown that there was less than a majority of the judges present at the polling place at any time that day. The evidence also shows that the distributing judges tried to get the electors who presented. themselves for voting to take one ballot of each political party voted for, but that in some instances the voter asked for or selected one ticket only, which he prepared and voted as he chose; but it is not of record that any elector was refused any or all of the ballots to which he was entitled.

The record shows that G. D. Bailey was appointed as a watcher for the Socialist party at Dexter precinct. He first appeared at the polls in the morning of the day of election, and voted, and then, after electioneering outside of the polls for the Socialist ticket, he left. He did not again appear at the polling place until after the polls were closed, when he presented himself in the capacity of a watcher, and was admitted. After he had witnessed the counting of the ballots for some time, some of the judges objected to his remaining longer for the reason that he had not been sworn. He then left, went to the office of a justice of the peace, who administered the oath, but he did not return to the polling place until the ballots were nearly all counted, -when he tried to get in, and was refused admittance by the constable who kept the door inside. According to Bailey’s own evidence, he did not give his name at that time or state what he was there for. He did not state that he had been sworn as a watcher, but tried to force the door. It was then about nine o’clock, and quite dark. While he was at the door, two of the judges of election who had been out came back to the polling place at different times,, and were admitted; but, according to Bailey’s testimony, he did not speak to either judge, nor tell either that he had been sworn as a watcher .and wanted to get in.

As to the method used in counting the ballots, Joseph Winchester, one of the counting judges, testified as follows:

“Mr. Clodfelter took all these ballots out of the boxes himself, and he handed them to me, and I called them off to the clerks; he would take them out, one at a time, and count them and hand them to me; and in the beginning — we began about eight o’clock — and possibly the first fifteen or twenty I called off one ballot in my hand at a time, and some one — I believe Mr. Jeff ers-^-thought they could tally as many as five at a time, that the leaves was troublesome to turn, and that may be they could get along better and faster; and so Mr. Clodfelter would hand them to me assorted up, so there would be five straight Democratic ballots and five straight Republican ballots. He would count them one at a time, and I would re-count them and compare them, and see that they was exactly alike. I would take them and count them off and ■ call each name, five for so and so, and would go on down to the collector’s office, and would say ‘five for Ulen,’ or ‘five for Brannock,’ or whatever it was. And after we had counted a while, I says to the tally clerks, ‘If you can count five at a time you can put down ten at a time,’ and then took ten on the same method. Q. While you counted one at a time, you had nine below that- one? A. Yes, sir. I called them off that way to the tally clerks, but they was counted one at a time.”

The testimony of the other counting judge and of the tally clerks was to the same effect, and all testified that the ballots were counted correctly. It appears from the testimony that the ballots cast for the nominees of the Socialist party, of which there were forty-one cast in that precinct, were placed by the counting judges in an empty box by themselves. as they happened to be extracted from the ballot box, and that such ballots were not counted until the judges were through with counting the votes for the Republican and Democratic nominees. There was no evidence whatever of any fraud or mistake in the counting of the ballots.

It was.shown by the evidence that five men who lived in Caster township, and who should not, therefore, have been allowed to vote in Dexter precinct, did vote there.

On behalf of the contestants, the court gave the following declarations of law:

“1. The court declares the law to be that the election alleged to have been held at the voting precinct of Dexter, in Stoddard county, Missouri, on the 8th day of November, 1904, for the purpose of electing a Collector of the Revenue of county, to be legal and valid must have been held and conducted in compliance with the provisions and requirements of articles 1 and 2, chapter 102, of the Revised Statutes of 1899, of this State, and if the court believes from the testimony in the case that said election was not so held and conducted it will declare the same absolutely void as a matter of law, and the finding will be for the contestants.
“2. The court declares the law to be that the primary object of the election laws of this State, under which the alleged election at the voting precinct at Dexter, in Stoddard county, Missouri, on the 8th day of November, 1904, for the purpose of electing a Collector of the Revenue of said county was required to be held, is to preserve the freedom and independence of the electors in the preparation of, and depositing, their ballots in the ballot-boxes, and to maintain inviolate? the secrecy thereof, and, if the court finds from the evidence that said primary objects of said election law were not maintained and preserved as contemplated by said election law, then the' court will find as a matter of law that no legal and valid election was held at said time and place.
“And in this connection the court declares the law to be that the freedom and independence of the electors and the secrecy of the ballots meant by said election law, is the right of the electors to enter the booths and prepare their ballots free from observation and outside influence, and to deliver them to the receiving judges and have them deposited in the ballot box and counted and certified as cast, without exposing or disclosing their contents to others, except those entitled by law to knowledge thereof.”

The plaintiff further asked the court to give the following declarations of law, to-wi.t:

“3. The court declares the law to be that the following provisions and requirements of section 6996 of the Revised Statutes of 1899, to-wit:.
“ ‘After the, delivery of ballot-box number 1 to the counting judges, the same shall be immediately opened by them, and the tickets shall be taken out, one at a time, by one of the counting judges, who shall read distinctly, while the ticket remains in his hand, the name or names written or printed thereon, also the office that is intended to be filled by such person voted for, and deliver the same to the other 'Counting judge, who shall string the same on a thread or string, as provided by law. The same method shall be observed with each ticket, and the counting shall continue thus until all the ballots in the box are counted, . . . and so on in the same manner until the polls are closed and all the ballots are counted,’ are imperative and mandatory, and that no legal and valid count of the ballot cast at said alleged election, at the voting precinct at Dexter, in Stoddard county, Missouri, on the 8th day of November, 1904, for the office of Collector, of the Revenue of said county was had, unless said ballots were counted, by the judges of said election, as said statute requires, and if the court finds from the evidence that said judges of election,'or any other person or persons pretended to count said ballots in blocks of ten each, at a time, for each political party voted for at said election, or employed any other means or method to count said ballots which was a substantial disregard of said statute, it will declare as a matter of law that said ballots have never been legally counted, and could not, therefore, be legally certified and returned as having been cast for the parties hereto, and the finding will be for contestants.
“4. The court declares the law to be that the following provision and requirement of section 6996 of the Revised Statutes of 1899', to-wit, ‘No person or persons shall be admitted into the room or office where such ballots are being counted, except the judges and clerks of election,’ is imperative and mandatory, and is designed and is intended to protect and preserve the secrecy of the ballot as defined in these instructions, and, if the court finds from the evidence in the case that, while the ballots cast at said election at the voting precinct of Dexter, Stoddard county, Missouri, on the 8th day of November, 1904, for the office of Collector of the Revenue of said county, were being exposed (for that purpose) and counted, parties, other than the judges and clerks of said election, were permitted to be in the room or office where said count was being had, and while the same was in progress, it will declare as a matter of law that the secrecy of said ballots was thereby destroyed and that the pretended count thereof under such circumstances was, and is, illegal and void, and the finding will be for contestants.
“And in this connection the court further declares the law to be that, if such parties were admitted into the room or office where said ballots were being counted and permitted to remain therein while said ballots were being counted, and thereby given the opportunity to witness said count and to obtain a knowledge of the contents of said ballots, or any portion of them, then and in that event the court will presume that such parties did witness said count and did acquire knowledge of the contents of said ballots or some portion thereof. ”

To the action of the court in refusing to give said last two declarations of law, the contestants, by counsel, duly excepted.

While in their notice and specification of facts, a number of irregularities are specified by the plaintiffs or contestants, it is not shown that any of such were fraudulent, or that the defendant was in anywise connected therewith or derived any benefit therefrom, or that his vote was thereby increased. There were ■ irregularities committed during the election, it is true, but it is not shown that they were instigated by the defendant, or that they, or any of them, were committed in his interest.

It is charged in the notice of contest, and was shown upon the trial, that several voters, perhaps as many as eleven, who lived in another township in the county, voted at Dexter precinct. These votes were illegal and fraudulent, but it was not shown for whom they voted; but even if the entire number be rejected, the contestee would still have a majority of twelve votes in the county over both contestants.

There is no merit in the appeal. Besides, the term of office has long since expired. The judgment is affirmed.

All concur.