author: WILLIAMS, P. J.

text:
    DANIEL FRANCIS PRENDIVILLE, Appellant, v. ADELE PRENDIVILLE et al.
    Division Two,
    July 16, 1920.
    1. ESTOPPED: Sitting Aside Deed: Agreement Not to Sue: Priendly Partition. Where at the time plaintiff and two of his sisters agreed to a friendly partition of the real estate left them by their father he knew that his deceased mother had conveyed to one of them certain property owned by her as the survivor of an estate by the entirety, and he asked and reeeivéd the most valuable third of the property partitioned upon his express promise and understanding that he would forego his right to bring suit to set aside the mother’s deed, which he was threatening to do on the ground that it was obtained by the undue influence of the sisters over the mother at a time when she was incapacitated to make a valid deed, he is by his conduct estopped to attack the mother’s deed.
    2. --: Statute of Frauds: Full Performance of Agreement. Whether or not an oral agreement between a brother and sisters that if they would convey to him their interest in certain lands inherited from their father he would not contest the validity of a deed by which their mother had conveyed her property to the sisters was one falling within the Statute of Frauds, equity will refuse to aid him in breaching it where it is fully performed, the consideration ihas passed and the sisters are in possession. One who sells an equitable interest in land, receives the consideration, and yields possession, will not be permitted to say afterwards that the agreement was not in writing.
    3. -: -: Equity. The main object sought to be accomplished by the Statute of Frauds is the prevention of frauds; and one of the wholesome uses of equitable estoppel is to prevent the statute from being used as a fortification behind which fraud may be successfully perpetrated, and in so using it supplementary force and energy are given to the statute.
    Appeal from St. Louis City Circuit Court. — lion Thomas G. Mannings, Judge.
    Affirmed.

      Walter B. Douglas and Alfred J. Sirobans for appellant.
    (1) It being shown by the evidence that the defendant to whom the deed sought to be set aside was made was the manager of her mother’s property and occupied a fiduciary relation with her mother, the burden was on the defendants “to show that absolute fairness, adequacy and equity characterized the transaction. ” 2 Pomeroy, Equity, secs. 955, 956; Kincer v. Kincer, 246 Mo. 427; Byrne v. Byrne, 250 Mo. 632; Martin v. Baker, 135 Mo. 495; Street v. Goss, 62 Mo. 228; Mowry v. Norman, 204 Mo. 175; Bradford v. Blossom, 207 Mo. 230. The deed being prepared by the direction of the managing defendant, being without consideration and being an unnatural disposition of the property, and being kept secret from the son, makes it imperative that fairness be shown. Meier v. Buchter, 197 Mo. 68; Dausman v. Rankin, 189 Mo. 707; Gibson v. Hammang, 63 Neb. 349; Huffman v., Huffman, 217 Mo. 235; Gay v. Gillilan, '92 Mo. 264. The alleged grantor had no independent advice ;' the matter being wholly in the hands of the managing defendant and her employee. 1 Bigelow on Traud, 262; Armstrong v. Logan, 115 Mo. 465. (2) Thecorart erred in holding that the plaintiff was estopped from questioning the validity of the deed. There was not sufficient plea of estoppel. Bliss on Code Pleading, sec. 364; Central Nat. Bk. v. Doran, 109 Mo. 81. There was no sufficient evidence in support of an estoppel. Taylor v. Williams, 45 Mo. 80; Wendover v. Baker, 121 Mo. 294; Kirk v. Middlebrook, 201 Mo. 245; Sitton v. Shipp, 65 Mo. 297; Railroad v. McCarty, 97 Mo. 214; McKee v. Higbee, 180 Mo. 299; Merrill v. Thompson, 252 Mo. 730; Hersman v. Hersman, 253 Mo. 86; Russell v. Sharp, 192 Mo. 287; 2 Pomeroy’s Eq. sec. 808; Norris v. Letch-worth, 140 Mo. App. 19. (3) The alleged oral agreement of plaintiff to waive his claim as heir to one-fourth of the real property conveyed by the deed procured by defendant Adele Prendiville, not being evidenced by a memorandum signed by plaintiff as required by statute, is void. R. S. 1909, sec. 2783; Harris Appeal, 3 Walker (Pa.) 24; Tapley v. Ogle, 162 Mo. 190; Wend-over v. Baker, 121 Mo. 273; Hackett v. Watts, 138 Mo. 302; De Bardelaben v. Standemire, 82 Ala. 574. And a contract within the Statute of Frauds cannot be made the basis of estoppel. Smith v. Smith, 6*2 Mo. App. 596; Sursa v. Cash, 171, Mo. App. 396.

      Mnench, Walther $ Muench for respondents.
    (1) The deed here assailed expresses the intention of the grantor, formed many years before. The disposition thereby made is inherently natural, just and fair. While made to defendant Adele alone, she took title merely in trust to execute the intentions of the donor, and those intentions were faithfully and promptly carried out. Hence the ordinary rules with respect to conveyances to fiduciaries are inapplicable. Huffman v. Huffman, 217 Mo. 194; Hanfield v. Hennegar, 259 Mo. 50; Bennett v. Ward, 199 S. W. 947. (2) The transaction having resulted in the precise manner intended by the grantor in the deed, there is no ground for interference by the courts. Especially when no undue influence whatever is shown by the evidence, and the proof shows the grantor to have fully understood the transaction. Huffman v. Huffman, 217 Mo. 192. (3) The plea of estoppel by defendants was adequate, and set forth the substantial and ultimate facts out of which it grew. If plaintiff felt that the plea was too indefinite, a motion to make more definite would have reached the point. Absent this, he is bound by the result. Olden v. Hendrick, 100 Mo. 540; Bigelow on Estoppel, pp. 775 &t seq. (4) (a) The plea is not in the nature of a cross-bill to specifically enforce an oral contract, as plaintiff seems still to imagine. It is a .plain plea of ‘ ‘ estoppel in pais,” or equitable estoppel, and as such needs no support in writing. 16 Cyc. 757; 1 Story, Eq. Jur. secs. 385, 387; Taylor v. Zepp, 14 Mo. 345; Chouteau v. Goddin, 39 Mo. 250; Coke on Litt., 356; Doe d. Morris v. Eosser, 3 East, 15; Guffey v. O’Eeiley, 88 Mo., 418; Hart v. Giles, 67 Mo. 175; Eice v. Bunce, 49 Mo. 231; Palmer v. Welch, 171 Mo. App. 580; Boeckler Co. v. Wahlbrink, 191 Mo. App. 335. (b) The evidence is ample, and overwhelming, to establish the estoppel pleaded. Plaintiff’s bare denial of the facts supporting the plea is met by the positive evidence of two witnesses who have no material interest in the result of the case, as well as by convincing circumstances. The trial court had the best opportunity to observe these witnesses, and its finding of fact should be largely deferred to. Hummell v. Zinn, 184 S. W. 1154; Yaeger v. Yaegar, 185 S. W. 743; Thurmond v. Thurmond, 186 S. W. 1; Thiesen v. Thiesen, 167 Mo. App. 264; Griesedieck v. Griesdieck, 56 Mo. App. 98; Schierstein v. Schierstein, 68 Mo. App. 205; Wald v. Wald, 199 Mo. App. 347; Hull v. Hull, 168 Mo. App. 220; Creamer v. Bivert, 214 Mo. 479; Huffman v. Huffman, 217 Mo. 182; Daman v. Remme’s Exr., 246 Mo. 240; Halsey v. Thrailkill, 237 Mo. 721; Walther v. Null, 233 Mo. 134.
   WILLIAMS, P. J.

This is a suit in equity instituted by plaintiff against his three sisters, to set aside a deed made by their mother to the defendant, Adele Prendiville.

In the petition plaintiff alleges that the deed was the result of undue influence, and that at the time the deed was executed the grantor therein did not have sufficient mental capacity to comprehend the nature of her act. The answers deny that the deed was the result of undue influence or that the grantor therein was without sufficient mental capacity to make the deed, and then sets up a plea of estoppel, which in substance alleges that the plaintiff and two of the defendants owned as tenants in common the remaining interests in certain land left by their father, subject, to a life estate in their mother; that after their mother’s death the plaintiff and two of the defendants agreed to a partition of the said real estate; that plaintiff was given the more valuable portion of said real estate and on that act promised that he would not institute a suit against the defendants to set aside the deed which is now in question.

The trial court found the issues in favor of the defendants on the theory that the plaintiff had become estopped by his conduct. Plaintiff thereupon duly perfected an appeal to this court.

There appears to be but little dispute between the two statements of facts found in the briefs. The statement found in respondent’s brief is more concise and for that reason we quote largely from the statement of facts made by respondents as follows:

“Undisputed facts are that prior to his death (March 3, 1905), Maurice Prendiville, father of these litigants, had made disposition of his estate so that he and his wife, Bridget Prendiville, retained joint life-estates in one tract of land on Bacon Street, containing a front of 110 feet, and improved by two double houses and one single building, and another tract of 75 feet front on St. Ferdinand Avenue, improved, by a row of four houses with flats above and below, while title by the entirety to the old family homestead on Prairie Avenue, also occupying a front of 75 feet, was vested in himself and wife.
“That, when his father died, plaintiff, Frank Prendiville, was a member of the household, and so remained for a period of two or three years thereafter; that he scarcely spoke to his mother while such member of the family — she having refused to pay him $2,000 out of her life insurance — and that after his marriage, and for a period of almost eight years, he never again saw bis mother. That, after the burial of the mother, Frank rode back to her late home with his two sisters, Martha .and Adele, and then and there began negotiations for the division of the Bacon Street and St. Ferdinand Avenue property, 'which negotiations ended with the exchange of deeds about November 24, 1915.
“It likewise appears without contradiction that some years after the death of Maurice Prendiville, his widow7 removed the old homestead building on Prairie Avenue, and being then the owner in fee of the land, as survivor, erected thereon another row of small tenements of three rooms each, being numbered from 2419 to 2425a North Prairie Avenue, and that, on the day when Mrs. Prendiville suffered a stroke of paralysis, Dr. Klein, after seeing the patient, advised that the daughters have any disposition she desired to make attended to without delay, and her daughter, defendant. .A dele, thereupon went to the office of the North St. Louis Savings Trust Company and there consulted with two parties connected wdth that, institution concerning the execution of deeds whereby .the Prairie Avenue property should be conveyed to her three daughters, in the proportion of two houses to Mrs. Morley, and one each to Martha and Adele; that, upon being informed that such division was impracticable without a survey defining the division line, the notary, Moresi, was then directed by her to make one deed, conveying', all the property to her, she thereafter to make the division; that the notary drew such a deed, and that afternoon took it to Mrs. Pendiville’s residence for signature, where her mark was affixed and the acknowledgment taken, in the presence of the notary, defendant Adele, defendant Martha and Mr. Daniel Murphy, the latter two of whom signed the deed as witnesses.
“As to matters not admitted, or as to which the evidence conflicts, the following appears:
“To sustain his charges of undue influence and mental incapacity, plaintiff merely adduced evidence showing that after the death of Maurice Prendiville, defendant Adele attended to looking after the renting of her mother’s property, the collection of her rents and payment of bills. . . . As to the question of mental capacity, plaintiff adduced the evidence of one Dr. Klein, who had treated Mrs. Prendiville, at long intervals, during many years preceding. He was called in the morning the paralysis occurred, and expressed the opinion that the attack was caused by the bursting of a small artery in the brain consequent upon arterio sclerosis. He did not speak to the patient; she attempted to speak to him, but he could not understand her; he is not certain that she was comatose at the time; he has forgotten whether she could take medicine, he wasn’t there long enough. The witness also disclaimed being an expert. He is 'pretty sure’ Mrs. Prendiville did not regain consciousness after she became unconscious. 'I believe, I am not sure, but I think, she was unconscious. It has been so long ago, and I never expected to hear anything more of it.’ He is equally uncertain in his other statements, and locates the patient’s paralysis as being on the right side, when the uniform testimony, otherwise, is that she was paralyzed on the left side. He added that you can’t tell the effect of arterio sclerosis on the human mind. ‘Sometimes they are all right.’ On cross-examination, he stated that one of the effects of arterio sclerosis in very old people was to cause occasional aberrations, or aged childishness, when between times, for weeks and weeks less the person might be perfectly normal. He also stated that when first called he advised the daughters to have some one called in to make the old lady’s will. Partial paralysis in persons of temper, naturally makes them feel ill-tempered. On re-direct examination, "Dr. Klein was asked, and answered as follows:

“ ‘Q. In your judgment, was your patient in a condition in which she was able to make a will? A. I don’t know, I couldn’t answer that question; I don’t really know. ’

“Later on Dr. Klein was recalled to give certain dates from his memorandum book and was again asked by plaintiff’s counsel:
“ ‘Q. Now, doctor, from what you knew of Mrs. Prendiville, and what you saw on that date, was she, in your judgment, in a fit condition to transact any business? A. Well, now, I don’t know; I think not, though.’
“Plaintiff also called Louis J. Moresi, the scrivener and notary who wrote the deed and took the acknowledgment thereto, and his testimony with reference to this transaction was that he is manager of the real estate department of the North St. Louis Savings Trust Company; that on September 23, 1915, he found Miss Adele Prendwille in the office when he reached it, talking to another man employed there. She wanted a deed drawn for the Prairie Avenue property so as to divide it amongst the several sisters.. Witness told her that since the houses were attached, a proper description could not be made up without a survey. Then she said he had better draw the deed to her, and she would take care of the sisters afterwards. She also asked about the necessity for witnesses to the deed, and made some mention of a will. Witness told her that if the mother signed by a mark, two witnesses would be required, but was not certain whether her sister could officiate as one of them. Witness was to call in the afternoon with, the deed, to get the acknowledgment, the mother being ill at the house. He went there some time between three and five o’clock, and found the witness Murphy present. The party went up stairs into the room where the mother was, and witness Moresi there ‘read her the entire deed, or explained it to her, or read the description. ’ He made it a point to go over the description and to tell Mrs. Prendiville just — (interrupted) and she signified she knew what the description was. He does not remember any interruption or suggest’on by anyone else. He was introduced to the grantor, but'had known Mr. Murphy and Miss Prendiville before. Murphy made a remark or two to Mrs. Prendiville as he came into the room. Witness continued: ‘It occurred to me there that I should ask it over, and then it occurred to me: don’t be too scrupulous on that point, because she had acknowledged it before I finished.’
“ ‘She held the pen and made as much of a mark as she could bv herself;’ don’t remember who gave her the pen, whether she picked it up or not. She was propped up in bed, held the pen in her right hand, and made the mark with her own effort as much as she could . ‘I remember I was trying to let her make it with her own hand without any assistance.’ Witness held the book or table she wrote on, and'assisted her; and she made the cross on the deed. It was after she signed the deed that the acknowledgment was asked for. ‘I remember she acknowledged, on account of what I said before.’ He put his seal upon the paper, but does not remember whether he placed it on the table or handed it to the ‘girls,’ or what he did with it.
‘ ‘ On cross-examination witness stated that he never had anything to make him feel that Mrs. Prendiville did not know what she was doing, or eonld not recognize what she was doing.
“There was no other evidence adduced by plaintiff relating to the execution of the deed or the sanity of the grantor. '
“Bearing upon these issues, the testimony for the defendants was:
“Daniel Murphy, a night watchman, aged 76, who had- known Mrs. Bridget Prendiville for about sixty years, was present at the execution of the deed, and signed the same as a witness. Besides the witness, the notary Moresi and the two unmarried daughters were present. He had been asked to sign as a witness to a deed or deeds, and came for that purpose. They all went upstairs into the old lady’s room; she at first seemed ‘kind of dazed,’ but the daughters said: ‘This is Mr. Murphy, mother,’ and she said ‘Oh, yes,’ and she put out her right hand, which he shook, and said: ‘M.rs. Prendiville, I ám very sorry to see you so low.’ That was all his conversation. Mr. Moresi was there with the deed, some one lifted her up, Moresi held the deed in front of her, and read out of it, but witness cannot now say what he did read. She said: ‘Yes, yes.’ He assisted her, took her hand, and she made that cross, and witness afterwards also signed. Moresi asked her some questions, but witness has forgotten what they were. To the best of witness’s impression, the notary asked her if she understood what she was doing.
“Both the unmarried daughters, Martha and Adele, were by the court permitted to testify that they saw their mother place her mark to the deed, but all other evidence by them regarding the transaction was excluded on objection of plaintiff. Specific offers were made to prove by all three-daughters, that Mrs. Prendiville had many times declared her intention of giving Mrs. Morley two of her houses on Prairie Avenue, and one each to her other two daughters, so as to rectify an inequality which occurred when Mr. and Mrs. Prendiville divided their other property among their children to the exclusion of Mrs. Morley and that, in causing the deed in question to he prepared by Mr. Moresi, defendant Adele obeyed the expressed wishes of her mother. All this testimony was excluded by the trial court under its construction of Section 6354, Revised Statutes 1909; but defendants’ witness, Miss Mary Gallagher, testified that she had known Mrs. Prendiville for some twenty-five years, came to work for her when she was a child of eleven years, remained with her some seven years, and thereafter called upon her as often as once or twice a month. She sáw her the day after the paralysis, shook hands and conversed with her quite a while. Mrs. Prendiville mentioning that Mr. Murphy had been to. see her the day before. She also told her about being paralyzed, that Dr. Klein had told her it would be some six weeks before she could use her hand again; she also asked how the brother-in-law of Avitness was, Avho likeAvise suffered paralysis of the left hand. She spoke as she always did, in her usual way, not different from former times. Witness saw Mrs. Prendiville again on Saturday, Sunday and Monday. She was very ‘nice’ on Saturday, and at the close of the visit asked her daughter, Martha, to play one of the new pieces on the Victrola for Avitness. The Sunday visit lasted all afternoon. Witness had no difficulty whatever in understanding Mrs. Prendiville, and the state of her mind was still very nice. On Monday evening she was greatly changed, speechless, unconscious and sinking. That was the first noticeable change in her condition.
“About one and a half or two years before, Mrs. Prendiville talked to Avitness regarding her intended disposition of her Prairie Avenue property. ‘Well, she. told me she was going to give Mary two of these houses, she said, because her father didn’t leave her anything; on account of those children she would give Mary two of the houses. She had often said it before, but that is the last time I remember of her saying it.’
“At the time referred to Mary Morley had seven children.
“From her intimate knowledge of Mrs. Prendiville, this witness also stated that the deceased was a woman of very strong willpower.
“Relative to the issue of estoppel, the following testimony was also adduced:
“Defendant Adele Prendiville testified that on their return from the mother’s funeral, Frank Prendiville demanded to see the rent hooks, and spoke of dividing the property of Bacon Street and St. Ferdinand Avenue, and when he charged his sister with stealing the rents, she refused to speak to him further until she could consult an attorney. She did so, and during the next interview, on next Sunday evening, he was informed about the deed in question, and he threatened to set it aside. He frequently renewed these threats, and witness retorted that she would fight the case if he attempted to carry them out. Frank kept coming back every few days for nearly six weeks, making various demands for a division of the rows on Bacon Street, and St. Ferdinand Avenue, respectively. At first he wanted all four houses on St. Ferdinand, which Adele and Martha refused to consider; then he suggested a division of two houses on Bacon and one on St. Ferdinand, and when the sisters agreed to that, he again changed his mind, because he did not want a half interest in a double house, and did not want No. 1907 Bacon Street because it had not yet been changed into flats. He then modified his demands to three houses on Bacon Street, naming No. 1913, a single building, and Nos. 1909 and 1911, a double building. Then the sisters said, if he would leave the deed to the Prairie Avenue row stand, they would give him what he demanded. The court excluded testimony as to whether witness A dele would have consented to give Frank three houses on Bacon Street but for his promise to let the Prairie Avenue deed stand.
“Defendant Martha Prendiville testified, as to the foregoing negotiations, that, according to her recollection, Adele told Frank abont the deed in question on the very first visit of the latter, when they returned from the mother’s funeral, and he at once said that he was going to set it aside. She also related the different propositions made by Frank regarding the division of the property on Bacon Street and St. Ferdinand Avenue. He finally said: ‘You give me three houses on Bacon Street and I will not set the deed to the Prairie Avenue row aside, and I will allow Mrs. Morley to have two houses,’ and thereafter she and Adele agreed to give him the three houses so he would not set aside the Prairie Avenue deed; witness knew the Bacon Street houses were worth more than on St. Ferdinand Avenue. All the deeds were drawn, executed and delivered, as well as those dividing the two properties on Bacon Street and St. Ferdinand between Frank, Adele and Martha, as those dividing the Prairie Avenue row between the three sisters, as contemplated. They are all dated November 24, and were acknowledged and recorded within a week thereafter.
“On the other hand appellant testified that he first heard of the deed in question, ‘Oh, some time in the middle of November, . . . after we had a settlement of our estate,’ and then through Mrs. Morley. That nothing whatever was said about the Prairie Avenue houses during the negotiations with his sisters, but on re-examination admits that during his negotiations with his sisters, on Sunday afternoon, Adele jumped up excitedly and said she would give $100 ‘if I would have that deed set aside,” and he admits that as manager of the real estate department of the West St. Louis Trust Company it was his duty to, and he did, watch real estate transfers reported in the ‘St. Louis Daily Record,’ from day to day.
“The deed in question was recorded October 15, 1915.
“As to the relative value of the two properties thus divided, the proof shows that the St. Ferdinand Avenue row occupies ground fronting 75 feet on that street, while the houses on Bacon Street occupy a front of 110 feet, the depth in each instance being 120 feet.
“The row on St. Ferdinand consists of four houses under one roof, comprising eight small tenements of three rooms each, without baths or running water. Three of these were vacant at that time, and one had. been idle for over a year. The tract on Bacon Street consisted of two double houses and one single house (No. 191.3), separated by adequate walks or gangways for the benefit of tenants. In 1915, the single house (No. 1913), the double house (Nos. 1909 and 1911), and the southern half of the remaining house (No. 1905), had been converted into upstairs and downstairs flats, with bath rooms and like equipments, while No. 1907 was still being rented in its original state. Each change into flats had cost about $600, and the rentals were augmented accordingly. The flats yielded a rental of $14.50 below and $15 above, per month, while the unchanged house No. 1907 yielded only $24, as a whole.
“The tenements on St. Ferdinand, when rented, brought $12 and $12.50 per month, to-wit, $24.50 per house, at this time.
“No. 1913 Bacon Street had been vacant for about a year, and some plumbing taken away by boys who broke in. No. 1905 had been vacant about as long, and its wall paper was off. Nos. 1909 and 1911 were in good condition, and only one tenement vacant.
“According to defendants’ testimony, the Bacon Street neighborhood is the nicer of the two and easier rented.
“Plaintiff Frank Prendiville’s own testimony is that he ‘thinks’ the flats on St. Ferdinand Avenue rented for $12.50 per month, while those on Bacon Street yielded $14, or $14.50, when rented, and one (No. 1909), yielded $15 per flat.
“By the deal, Frank secured a total front of 65 feet on Bacon Street with common use of gangway between Ms and Ms sister’s houses. It cost Mm $341 to put No. 1913 in proper shape after he acquired it. He estimated each of the four houses on Bacon Street at $2,500 and the single house (No. 1913) at $2,750, while the four houses on St. Ferdinand Avenue are valued by him at $2,100 each.
• “Taking the estimates thus given by plaintiff himself, the three houses secured by him were worth $7,750, from which may perhaps he deducted the $341 alleged to have been spent for. repairs on No. 1913, making the net value $7,409, while the one house on Bacon Street and the houses on St. Ferdinand Avenue given each sister, were worth, respectively, $6,700, not reckoning the repairs which No. 1905 required. In other words, there was an actual difference in money value, according to his own testimony, of from $709 to $1,050 in each instance.”

The trial court decided this case on the theory that plaintiff had by his conduct become estopped to now attack the validity of the deed in question. After carefully reviewing and weighing-the entire evidence we find that the greater weight of the evidence is to the effect that at the time the plaintiff and two of his sisters agreed to a friendly partition of the real estate left them by their father, plaintiff then knew that his deceased mother had made the deed now in question and that he asked and received the most valuable one-third of the property partitioned by his express promise and upon the understanding that he would forego his right to bring a suit to contest the validity of the deed in question.

Appellant insists that his agreement not to contest the validity of the deed was within the Statute of Frauds and could not be made the basis of estoppel. We are unable to agree with this contention. Whether the agreement which appellant made was one falling within the terms of the Statute of Frauds we need not determine, because unnecessary to a decision of the case. Even though it be considered arguendo that it was such a contract — it has been fully performed, the consideration has passed and the respondents are in possession. Under such circumstances, equity would refuse to give the plaintiff any relief.

In the case of Rosenberger v. Jones, 118 Mo. 559, l. c. 566, Black, P. J., speaking for the court said: “There is no doubt the Statute of Frauds applies to equitable as well as legal estates and as a rule equitable estates can only be assigned by note or memorandum in writing. But as said by Judge Bliss in Grumley v. Webb, 48 Mo. 586, ‘One who sells an equitable interest in land, receives the consideration, and yields possession, ivill not be permitted to say afterwards that the assignment was not in writing.’ ” (Italics ours).

In the early case of Taylor v. Zepp, 14 Mo. 482, one of the leading cases in this State upon the subject of estoppel in pais and its relation to the Statute of Frauds, it was held in effect that the Statute of Frauds did not apply to those cases where the doctrine of equitable estoppel or estoppel in pais was applicable

Any other view would take from equity one of its strongest prerogatives, e. g\, its power to prevent the consummation of those frauds which if not sanctioned by the cold letter of the law are by it not prohibited.

Tbe main object sought to be accomplished by the Statute of Frauds is the prevention of Frauds. One of the very wholesome uses of equitable estoppel is to prevent the Statute of Frauds itself from being used as a fortification behind which fraud may be successfully perpetrated.

While at first blush it might appear that the doctrine of equitable estoppel conflicts with the Statute of Frauds, yet upon closer inspection it clearly appears that the conflict is only a matter of appearance, a mere matter of form and not of substance, and like the mirage of the desert entirely disappears upon closer inspection. There is no real conflict in substance or principle, but the one might be said to supplement the other — each expending its proper force and energy against the common enemy — fraud.

We are of the opinion that the doctrine of estoppel in pais is entirely applicable to the facts of this case and that the learned chancellor was correct in so holding.

Since the above conclusion disposes of the whole case, the discussion of other points mentioned in appellant’s brief becomes unnecessary.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    W. P. EPPS, Appellant, v. CHARLES H. DUCKETT et al.
    Division Two,
    July 16, 1920.
    1. CONSPIRACY: Applicant for Postoffice: Written Protests. Letters from patrons of a postoffice concerning the applications for appointment of two candidates, condemnatory of one and commendatory of the other, in which the writers express their individual opinions and their preferences, must he considered as a whole in order to reach the composite opinion, which requires the mental act of another than the writers, and therefore do not indicate such a concert of action as constitutes a conspiracy, but are to be considered protests- and individual acts.
    2. -: -: Lack of Moral Character: Admitted. An applicant for a postoffice cannot recover damages on account of a charge of lack of moral character contained in a protesting petition signed by numerous patrons, which he unhesitatingly admits was true.
    S. -: Necessary Showing. To establish a conspiracy for which an action for civil liability will lie it is necessary to prove a combination of two or more persons to accomplish an unlawful object by unlawful means or a lawful object by unlawful means.
    4. -: -: Lawful Act of One. What one may do the many may do, if the combined act works no invasion of the complainant’s rights; if one of the defendants,. charged with a conspiracy to prevent complainant from being appointed postmaster at a certain town, may have done all that is shown by the testimony without subjecting himself to damages, then none of them are liable unless their combined act worked an invasion of the complainant’s rights. [Distinguishing State ex rel. v. Assur. Co., 251 Mo. 1. c. 291, which overlooked the exception that the combined act must work no invasion of the complainant’s rights.]
    5. -: Gist of Action. The gist of a civil action for damages for conspiracy consists not in the conspiracy, but in the damage inflicted in pursuance thereof.
    6. -: Applicant for Post Office: Protests Admitted. The personal character and official fitness of an applicant for appointment as postmaster are legitimate subjects of truthful comment-, and even if the charges against him were construed as jointly made by several defendants and have a reasonable resemblance to concert of action, if admitted by him to be true, or shown by the testimony to be true and known to his neighbors, although they may have been effective in preventing his appointment, the injury was negligible, and defendants are immune from an action for damages based thereon.
    Appeal from Texas Circuit Court. — Hon. L. B. Wood-side, Judge.
    Affirmed.

      J. G. Dyott for appellant.
    (1) There was a conspiracy among the defendants to secure the appointment of Duckett as -postmaster at Pomona, regardless of the rules and regulations of the civil service laws and regulations. 5 R. C. L. 1061. While the civil law does not recognize the act of the conspiracy within itself as actionable, but rather the damages flowing therefrom, when the parties to such an agreement to do an overt act in furtherance of an illegal combination, resulting in an injury to the third party, the conspiracy becomes actionable and the conspirators liable to the injured party for damages flowing from thier illegal conduct. 5 R. C. L. 1091; 12 C J. 581. The act becomes actionable when done in pursuance of a combination of persons, actuated by malicions motives, and not having the same justification as an individual. An act lawful in an individual can be subject to a civil conspiracy when done in concert, only where there is direct intention that injury shall result from it, or where the object is to benefit the conspirators to the prejudice of the public or the oppression of individuals and when such prejudice or oppression is the natural and necessary consequence. 5 R. C. L. sec. 42, p. 1092; 12 C. J.-sec. 102, p. 583; sec. 103, p. 584, and note 82. (2) The connection between the parties once having been established then whatever was done in pursuance of the conspiracy, by one of the conspirators is to be considered as the act of all, and all are liable therefor, irrespective of the fact that they did not actively participate therein, or of the extent which they benefited thereby. 5 R. C. L. sec. 43, pp. 1093, 1094; 12 O. J. sec. 106, p. 586:; Hunt v. Simonds, 19 Mo. 583; State v. Assurance Co., 251 Mo. 291. The defendants were guilty of unlawful acts and conduct in an effort to avoid the civil service for the benefit of the defendant Duckett. (3) There was a confederation or conspiracy or a combination between more than two persons to accomplish the appointment or selection of Duckett. The combination having been made then all persons connected with the matter were parties to the conspiracy and all equally liable for the acts of each other as well as their own acts. 3 G-reenleaf on Evidence, sec. 93; State v. Walker, 98 Mo., 105; State ex rel. v. People’s Ice Co., 246 Mo. 216. Everything said and done by conspirators with respect to the purpose of the conspiracy during its existence is admissible against all or either of the conspirators, whether in the presence of each other or not, and whether or not. all the conspirators are included in the action. State v. Bobbitt, 228 Mo. 266. (4) The court erred in admitting specific evidence of specific offenses over the objection of the plaintiff. Sotham v. Drovers, 239 Mo. 606; Yager v. Bruce, 116 Mo. App. 493.

      Green & Green and M. E. Morrow for respondents.
    (1) Defamatory words which are themselves actionable are privileged by reason of the social relations of those who uttered them, when uttered to one having a common interest in or duty toward the person speaking. Yager v. Bruce, 116 Mo. App. 473; Holmes v. Fraternal Union, 222 Mo. 556. (2) Plaintiff must allege and prove actual malice when the alleged utterance was made to one having a common social or moral interest or duty in the subject matter toward those uttering the alleged false and slanderous words. Findley v. Steele, 159 Mo. 299; Holmes v. Fraternal Union, 222 Mo. 556; Garey v. Jackson, 193 S. W. 920; Sullivan v. Com. Co., 152 Mo. 268; Kersting v. White, 107 Mo. App. 265; 25 Cyc. 385. (3) When a man becomes a candidate for a public office his character for honesty and integrity and his qualification and fitness for the position are put before the public and. are thereby made proper subjects for comment. Smith v. Burris, 106 Mo. 94; Eikchoff v. Gilbert, 124 Mich. 353; Coffin v. Brown, 94 Md. 190; Mattice v. Wilcox, 147 N. Y. 624; Putnam v. Browne, 155 N. W. 910. (4) A charge made in reference to an applicant for a postoffice employment is privileged, when made to a Government official, or one having appointing power, when made in good faith. Posnett v. Marble, 62 Yt. 480, 22 Am. St. 126; Coogler v. Rhodes, 38 Fla. 240. (5) None of the acts, words or utterances of respondents in this case constitute a conspiracy, either under the statute or at common law. Secs. 4705, 4706, R. S. 1909; Darrow v. Briggs, 261 Mo. 244; Com. Co. v. Hunt, 4 Mete. (Mass.) 123, 38 Am. Dec. 346. (6) The truth of the alleged false statement is always a good defense to an action for damages for libel or slander. Sec. 14, Art. 2, Mo. Constitution; McAtee v. Vanlandingham, 75 Mo. App. 45; McCloskey v. Pulitzer, 152 Mo. 339; Ukman v. Daily Record Co., 189 Mo. 378; Wilson v. Sun Pub. Co., 148 Pac. 774. (7) Bad character once shown in a person, the presumption is that it continues to be bad, until the contrary state is proved. Greenleaf on Evidence (13 Ed.), sec. 41; 2 Chamberlyne on Evidence, sec. 1045; Nelson v. Jones, 245 Mo. 579; People v. Squires, 49 Mich. 487, 13 N. W. 828. (8) Character of a party in civil action may be inquired into if put in issue by nature of the proceeding. Gourley v. Callahan, 176 S. W. 239. (9) It is not reversible error to admit in evidence testimony of specific acts of immorality of a party to the action in a civil case; and especially is this true when his character is a matter of investigation in the case. Sotham v. Tel. Co.. 239 Mo. 621. (10) Where mitigation and justification are pleaded, the evidence may take a much wider range than where a general denial alone is made. Sec. 1838, R. S. 1909; Ogle v. Sidwell, 167 Mo. App. 292; Baldwin v. Fries, 46 Mo. App. 288.
   WALKER, J.

This is an action for damages brought in the Circuit Court of Howell County by appellant Epps against respondents, in which it is charged that they conspired to prevent and did prevent him from obtaining the appointment as postmaster at Pomona, a small village in that county, and thereby secured the appointment of the respondent Duckett. • The- total amount estimated by Epps as his actual hurt by reason of this alleged conspiracy dire is the modest sum of five thousand dollars, to which he avers should be added a penalty in twice that sum. Moved perhaps by that Persian proverb preserved from oblivion by the poet Saadi, that “one is oftenest best served where least known,” Epps removed his cause by change of venue from his home circuit court to that of Texas County, where it was tried in November, 1916, resulting in a verdict and judgment for respondents, jfrom which this appeal is perfected.

A státement of the facts clothed in phraseology befitting the importance of the theme, as Balzac said in one of his Contes, rnns thns:

In 1914 appellant Epps and respondent Duckett were applicants, among others, for appointment to the position of postmaster at Pomona. The Postoffice Department subjected the applicants to a civil service examination, the pertinence of which in the determination of their fitness for the duties of a fourth-class postmaster, measured by the inquiries made, may well be the subject of intelligent difference of opinion, but not here. The result, of the inquiry showed that the appellant and respondent were among the eligibles according to the arbitrarv standard fixed by the Department, the former ranking higher in figures than the latter. In addition other tests were applied, deemed essential to test the fitness of one charged with the sale of stamps and the receipt and distribution of such mail ,as is wont to find its way to a fourth-class office.

We are not lacking in information on this subject emanating immediately from the then superintendent of the division of post-masters’ appointments, who testified at the trial. After volubly descanting generally upon the qualifications necessary to an efficient discharge of the duties of a postmaster in an office of this class, the witness, as definitive of the manner in which the wheat is winnowed from the chaff, or, to mix the figure, how the true prince of efficiency may be separated from the other applicants, said:

“Our first consideration was the service and serving of patrons. We first considered Number One and all things being equal, if there was nothing to create suspicion that he would not render as satisfactory and faithful service as the others, he was selected; but if there was, we sought light from any source, it made no difference from whence it came. It frequently happened that the Congressman in the district gave us a great deal of advice. We took that for what it was worth only. When an old postmaster was an applicant we frequently went into the character of his service. We even went to the auditor to ascertain whether his services had been satisfactory. If it was a case of an old postmaster and other applicants, the record of the former would have a considerable bearing as to whether or not he would be considered as against the other eligibles on the list.
“If the Congressman preferred a particular individual, we would look over the whole case and take No. One on the list; and if the character of the town and the business indicated that a man would be better suited than a woman we would take No. One on the male list. If we preferred a man as postmaster we usually asked for male lists. We considered that out right under the civil service rules. Where there was no business of any considerable size, we preferred a man. We sought light from any source whatever, the candidate’s knowledge of business, his age and general fitness, mental and otherwise; we chose the first name on the list. That man proving not as acceptable as No. Two, we took No. Two. Number Two failing, we took No. Three. The latter failing, we would ask for a new list. If No. Three should have charges submitted against him — reflections against his character, statements by letter — I could not say as to whether we would eliminate him and take No. Four. It would depend upon the character' of the evidence. We would have to consider it as a whole; the age, experience and so forth of the various candidates, go over their papers and examinations, and the character of their answers, to judge of their business education and mental fitness. There are a good many things that enter into these matters. Sometimes you can see personal feeling cropping out with an evident desire to work down to someone else. And there would be charges, may be, against all three. Then, of course you would have to take the whole situation into consideration and judge it from an examination of all the papers as to which was best suited and all three might be a pretty bad proposition. I have no doubt we have selected a good many not worth a tinker’s — .
“In the absence of complaint against an individual we took them in the way they came. If an old postmaster was an applicant we invariably looked up his record. If one of the applicants stood ahead and it appeared he was not a suitable person according to the charges presented, we would pass him up and take the others on the list according to their qualifications.”

Other facts adduced consist of, letters, petitions depositions and the oral testimony of witness at the trial. This mass of undigested testimony consists of more than 150 pages of matter, much of which is wholly irrelevant. Therefrom we are required to glean as best we may, for we have been furnished with no succinct statement of the facts, such relevant matter as may be found to sustain the issues made by the pleadings.

The letters are, in the main, from individuals who were patrons of the postoffice at Pomona; their tenor is commendatory of the respondent Duckett, and otherwise of the appellant. Interpreted according to their terms, they but express the individual opinions of the writers and declare their preference. That such preference is for the appointment of Duckett rather than Epps there can be no question. But to reach the composite opinion of the writers it is necessary to take their individual expressions and, so to speak, add them together. This process requires for its consummation the mental act of another than the writers and is therefore not indicative of such a concert of action as will constitute a conspiracy. The construction placed upon these letters by the Congressman of the district, who was a witness in the case and to whom they were addressed or who examined them on file in the department, is foreign to any conclusion indicating a combination on the part of the writers against Epps, such as is alleged in the petition. They constituted, as he definitely says, “protests” and are therefore to be construed as individual acts rather than a combined effort. As to their effect he says: “If there had been no protests against the appointment of Mr. Epps, he having a higher grade than Mr. Duckett, I believe he would have been appointed. But there were so many protests filed against him and none against Mr. Duckett, the appointing power felt Mr. Duckett should be appointed. If there had been no protests against Mr. Epps and I had believed his appointment would have been satisfactory to the patrons I should not have done anything to prevent his appointment. After receiving those-protests I recommended Mr. Duckett, not by letter, but in conversation with the appointing power. I gave him my opinion that the appointment -of Mr. Duckett would be more satisfactory to the people, but the appointing power acted, perhaps, more upon its own judgment than upon my recommendation, as he was familiar with' the protests filed against Mr. Epps. I would not state that he read all of those letters, nor postively state that he had read any of them, but I carried them to him and he or I either read them and their substance was discussed. Perhaps to some considerable extent he relied upon my judgment as knowing the needs and desires of the people in. that locality.”

One of the petitions, which was addressed to the Congressman and by .him filed in the Postoffice Department, after recommending the appointment of Duckett on account of personal fitness and the convenience of his business house as most suitable for a postoffice, adds:

“We further understand that Mr. Duckett and Mr. W. P. Epps will be the only Democrats on the eligible list and we desire to impression upon you the importance from a point of party interest as well as of business and moral interest to this community that Mr. Duckett be placed in position to receive the appointment and we state as a matter of common knowledge that the people do not want Mr. Epps for postmaster under any condition, as his character has been publicly assailed' and unsuccessfully refuted. We confidently believe that as between these two Democrats fully 95 per cent, of the patrons favor Mr. Duckett.
“As a matter of party interest and harmony and moral consideration to our community as well as a just recognition of Mr. Duckett’s loyalty and service to his party and the interests of his town and community, we urgently request your prompt action in the matter indicated. ’ ’

The other petition consists simply of a recommendation of Duckett for appointment and is signed by four county officials and the Representative and State Senator in the General Assembly.

The oral testimony consisted largely in a recounting by the witnesses, of which there were many, of their knowledge of the personal character of Epps and his reputation in the neighborhood. No attempt was made to prove these statements untrue, but it was sought to show that by the efflux of time they had lost their odor. Except to determine the issuable facts as to whether or not the appellant was injured by the acts of the respondents, it is not deemed necessary to state this testimony in detail or to indicate whether it was commendatory or otherwise, as it did not even remotely tend to prove an unlawful confederation to injure the appellant and hence it is immaterial. Nor do the depositions lend color to such a conclusion.

The charge in that portion of the petition to the Post-office Department above quoted, and which was signed by certain of the respondents, as to the lack of moral character of the appellant, was sustained by his own testimony and that of a number of other witnesses. Waiving the question of qualified privilege in regard to a statement- made in good faith to a Government official or one having appointing power concerning the character of appellant (Posnett v. Marble, 62 Vt. 480, 22 Am. St. 126; Coogler v. Rhodes, 38 Fla. 240), his claim for damages on this account may be dissipated by the inquiry as to how he could have been hurt by what he unhesitatingly admitted and all of the neighbors knew.

If it be true, as the texts and the adjudicated cases tell us, that to establish a conspiracy for which an action for civil liability will lie it is necessary to prove a combination of two or more persons to accomplish an unlawful object by unlawful means or a lawful object by unlawful means, the evidence adduced in this case is not sufficient to accomplish that end. [Clarkson v. Laiblan, 178 Mo. App. 708, 161 S. W. 660; Randall v. Lonstorf, Í26 Wis. 147, 5 Ann. Cas. 371.]

Furthermore, one of these defendants may have done all that is shown by the testimony without subjecting himself to an action for damages. This being true, it follows that what one may do the many may do if the combined acts works no invasion of the complainant’s rights. [Karges Furn. Co. v. Amalgamated Wood Workers, 165 Ind. 421, 6 Ann. Cas. 829.] This distinction noted in italics was overlooked in State ex rel. v. Assur. Cos., 251 Mo. l. c. 291, which by its terms overrules the early case of Hunt v. Simonds, 19 Mo. 583, and to that extent incorrectly states the law.

It must be borne in mind in weighing all of this testimony that the gist of the action consists not in the conspiracy, but in the damage inflicted in pursuance thereof. [Darrow v. Briggs, 261 Mo. l. c. 276; Carder v. Drainage Dist., 262 Mo. l. c. 558; Hunt v. Simonds, 19 Mo. l. c. 588; Hansen v. Nicoll, 40 App. Cas. (D. C.) 228, 33 Ann. Cas. 759 and notes; Martens v. Reilly, 109 Wis. 464; Young v. Aylesworth, 35 R. I. 259.]

In what manner and under what reasonable interpretation of the testimony can the appellant be said to have been damaged by anything shown to have been said or done by one or all of the respofidents ? He was an applicant for appointment to a public office. As such his personal character and official fitness were legitimate subjects of comment within the confines of truth.

The charges alleged to have been, made by the respondents against him, if construed as joint or having any reasonable resemblance to a concert of action, furnish no basis for this suit. As stated, they were shown to be true, and their truth was not only testified to by a number of witnesses residing in the vicinity of the postoffice, but it was admitted by- the appellant. Conceded to have been true by him and known to his neighbors, the local injury suffered by him on account of the publication of the charges, if such it can be called, by their being filed in the Postoffiee Department, must be said to have been negligible. Although they may have been effective in preventing the appointment of the appellant, the respondents are immune from an action based thereon because of their truth. [Smith v. Burrus, 106 Mo. l. c. 103; Commonwealth v. Clap, 4 Mass. 163; Bronson v. Bruce, 59 Mich. 467; Hamilton v. Eno, 81 N. Y. 126; Rearick v. Wilcox, 81 Ill. 77; Sweeney v. Baker, 13 W. Va. 158.]

Referring to some matter of inconsiderable moment, a quaint old author characterized it as no more formidable than the storm created'by a boiling saucepan. This we have modernized as a tempest in a teapot, by which sign this case may be fittingly designated. Finding no errors and the cause of action stated not having been sustained by the evidence, the judgment of the trial court is affirmed.

All concur.