By her separate amended answer and crossbill, defendant Lena Alport in substance al NELSON v. ALPORT et al. (No. 16481.) (Supreme Court of Missouri, Division No. 2. leged: July 14, 1914.) (1) That on June 5, 1908, she was the own 1. DEEDS (§ 211*)-SETTING ASIDE-ACTIONS-er of the above-mentioned real estate, and EVIDENCE-SUFFICIENCY. on that day signed and delivered a contract In a suit to set aside a conveyance by a by which she agreed to sell said real estate married woman, a finding that she was not in- to defendant Torrey H. Thompson for the duced to enter into the contract for the sale of her property by fraudulent misrepresentations held not contrary to the weight of the evidence. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 8 637-647; Dec. Dig. § 211.*] 2. DEEDS (§ 211*)-ACTIONS EVIDENCE. In a suit by a married woman to set aside a conveyance of her separate property, evidence held insufficient to show that the conveyance was made as a result of her husband's coercion and the fraud of the purchaser's agent. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*] sum of $20,000, $1,000 of which was recited in said contract to have been deposited with H. R. Ennis & Co. (as agents of defendant) to be applied on the purchase price, $14,000 in cash upon the delivering of a general warranty deed to said property. Said property to be conveyed subject to a deed of trust which was then on the property, amounting to the sum of $5,000, and also subject to state and county taxes. That said contract further provided that defendant might remain in pos 3. ACKNOWLEDGMENT (§ 62*)-MARRIED Wo-session for two months from the date of the MEN-ACTIONS-EVIDENCE-SUFFICIENCY. delivery of the deed at a monthly rental of $25. In a suit where a married woman sought to set aside a deed on the ground that the acknowledgment was not her free act and deed, a decree denying her claim held not contrary to the weight of the evidence. [Ed. Note. For other cases, see Acknowledgment, Cent. Dig. §§ 345-347; Dec. Dig. § 62.*] Appeal from Circuit Court, Jackson County; W..O. Thomas, Judge. Suit by William R. Nelson against Bernard Alport and Lena Alport, who cross-complains. From a judgment for plaintiff, the last-named defendant appeals. Affirmed. (2) That the making of said contract was procured by fraud on the part of plaintiff and defendants Ennis and Thompson in this: That said Ennis was engaged in the real estate business in Kansas City under the name of H. R. Ennis & Co., and that said company assumed to act as agents of this defendant, and accepted the deposit of $1,000 on the purchase price on behalf of this defendant, when the said Ennis was in fact the agent of the plaintiff for the purpose of This suit was originally instituted by the purchasing the above-described property. plaintiff filing in the circuit court of Jack-That said Thompson was associated with deson county, Mo., his petition in ejectment fendant Ennis, and aided Ennis in procuring against Lena Alport and her husband, Ber- said contract. That defendant Ennis connard Alport, to recover the south one-half cealed that he was the agent of plaintiff, and of lot 383, block 29, in McGee's addition to made defendant an offer of $20,000 for the Kansas City, Mo.; the property was known property as coming from the defendant as No. 1731 Grand avenue, Kansas City, Mo. Thompson. That defendant refused to acDefendants filed answer, asking for affirma- cept said offer, but offered to sell the same tive equitable relief. It appears that some for $25,000. That said Ennis, in order to detime after the suit was originally instituted ceive and defraud said defendant, Lena Alplaintiff instituted in a justice of the peace port, represented that if she would sell her court in Kansas City a suit in unlawful de- said property for the sum of $20,000, he, the tainer, to recover from the defendants the said Ennis, would cause to be sold to her possession of the same property. Thereafter the south half of lot 377 in McGee's addition plaintiff, in attempting to dispose of the case to Kansas City, Mo., known as 1707 Grand in the circuit court, dismissed his petition, avenue, for the sum of $18,000. That the but the court, over the objection of plaintiff, premises numbered 1707 Grand avenue were refused to dismiss the answer of defendant, in the same block as defendant's above-deon the ground that it asked for affirmative scribed property, and was of the same dimenrelief. Thereafter plaintiff filed a reply to sions as defendant's property, and the imthe amended answer of defendants. Later provements thereon were as good or better defendant Lena Alport filed her separate than those upon defendant's lot. That thereamended answer and cross-bill, undertaking upon said Ennis prepared and presented to to make H. R. Ennis and one T. H. Thompson her and her husband for their signature the defendants in the cause. Unsuccessful mo- written contract for the sale of defendant's tions were made by the plaintiff and defend- property as above mentioned. That defendants Ennis and Thompson to strike the cross- ant and her said husband were unable to read bill from the files. Later plaintiff filed a or write in the English language, and that reply to the separate amended answer of the defendant relied upon the honesty and good defendant Lena Alport, and it was upon the faith of defendant Ennis, and signed the issues thus raised by the answer of defend- above-mentioned contract by making her ant Lena Alport and plaintiff's reply thereto mark thereon, believing that it was a proper that the trial was had in the circuit court. and necessary step for carrying out and ef For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r adexes fecting the exchange of properties in accord-, the sum of $15,000 in cash, subject to said ance with the offer made to her by defendant mortgage of $5,000. Ennis. That after she and her husband had signed the above-mentioned contract said Ennis refused to make a contract to sell the property at 1707 Grand avenue for the sum of $18,000. That said Ennis and Thompson were the agents of the plaintiff, and that the recital in said contract that H. R. Ennis & Co. were the agents of defendant was false. That the $1,000 deposit mentioned in said contract was never in fact made. That defendant never intended to make a contract of the above import and effect, but that her signature was obtained thereto by the fraud and misrepresentations above mentioned, and for that reason the same ought to be set aside and held as fraudulent and void. (3) That afterwards, in order to make this defendant perform the fraudulent contract above mentioned, said Ennis, with three other persons, came to plaintiff's home and presented to her a warranty deed for her sig nature, which the defendant refused to sign. That said Ennis told defendant that if she refused to execute the deed, he would have the deed of trust on her property foreclosed and the property sold, so that the same would be come wholly lost to the defendant. That he induced defendant's husband to join with him in endeavoring to force defendant to execute said deed. That at said time defendant was in a sick and weakened condition, and unable to cope with said Ennis and other persons to protect her rights and to withstand the threats and statements of said Ennis and her said husband, and that by reason of the same, she, jointly with her husband, executed said warranty deed, whereby she conveyed said property to said Ennis for the sum of $15,000 in cash, and subject to the said deed of trust for $5,000, but that the same was not her free act and deed, and that this defendant was coerced, overreached, and defrauded into executing said deed. That in all the matters and things aforesaid Ennis was the agent and acting for the plaintiff. That at the time said deed was executed said Ennis paid to defendant's husband $15,000, which sum defendant is ready and willing to repay said Ennis or to the plaintiff, and now offers to pay the same as the court may adjudge, or to pay the same into this court upon its decree setting aside said deed and contract. That afterwards said Ennis conveyed said property by warranty deed to the plaintiff herein. (4) The prayer of the answer was that the above-mentioned contract and deeds be set aside, and that the title to said property be adjudged and decreed to be in this defendant, and for such further relief as may be just and equitable in the premises. (2) That on the 24th day of June, 1908, defendant sold and conveyed said real estate to said H. R. Ennis for the above-mentioned sum, and that said H. R. Ennis by warranty deed conveyed said property to said plaintiff herein at and for the same consideration. That plaintiff is now the owner in fee of said property. That immediately after plaintiff purchased said property he rented said premises to defendant and her husband at and for the sum of $25 a month, and that said defendant occupied said premises as tenants of the plaintiff and paid rent therefor as such tenants up to and including March 24, 1908, when defendant and her husband refused to make further payments of rent, and refused to give up possession of said premises. (3) That defendant and her said husband have ever since kept and retained said sum of $15,000, and have never made any lawful tender thereof to plaintiff herein. That prior to the time defendant and her husband executed the said deed they had full knowledge of all their alleged rights, if any they had, to have said deed set aside, but never asserted said rights or any claim in that behalf until long after May 1, 1909, and that by reason thereof they are estopped to assert any right to set aside said deeds. That defendant's claim is wrongful and malicious and without any foundation in fact, and prays that judgment be entered against the defendants, adjudging that they have no right, title, or interest in or to said premises, or to have said deeds set aside, and that judgment be entered that plaintiff has the right to the immediate possession of said premises, and that defendants be compelled to surrender said premises to the plaintiff, and that plaintiff be allowed damages and, for such other relief as to the court may seem meet and just in the premises. Trial was had in the circuit court, resulting in a judgment in favor of plaintiff and against the defendants. The trial court found that on June 24, 1908, defendant and her said husband conveyed said property to H. R. Ennis for the sum of $20,000, $15,000 of which was paid in cash and the remaining $5,000 paid by the assumption on the part of said Ennis of the $5,000 mortgage then existing on said property, and that on said date said Ennis conveyed said property to said plaintiff herein, and that plaintiff since that time has paid off said mortgage. The court further found that said Lena Alport signed the deed to Ennis, and acknowledged the same as her free act and deed, and that no fraud was practiced on her by said Ennis or said plaintiff or his agents in securing her The reply contained, in substance, the fol- signature to the deed. The court further lowing allegations: (1) General denial, except that it admitted that defendant and her husband conveyed said real estate to the said H. R. Ennis for found that the plaintiff was the owner of and entitled to the immediate possession of, said real estate; that defendants were not entitled to have said deeds set aside or en That titled to remain in possession of said prem-count the money and he helped count it. ises; that defendants' amended answer and Mr. Ennis and Mr. Thompson said, "Mrs. AlWe have counterclaim be dismissed; and that plaintiff port, you have got to sign a deed. got a contract, and we will go by law you recover his costs. should sell it; we will make you sell it." And The record is voluminous and the testi- one of them said that "they had plenty of monmony very conflicting. Defendants' testimony concerning the decisive issues in the case was substantially as follows: Mrs. Alport testified in her own behalf stating: That she was 39 years old, was born in Russia, but had lived in the United States 24 years. That in June, 1908, she owned the real estate in controversy. That she and her husband used the property as their home, and also conducted a new and secondhand store business on the premises. That she and her husband had been in the secondhand business together for about 23 years. That a few days before June 5, 1908, Mr. Ennis and Mr. Thompson called at her place of business and asked for a price upon her said property. She told them she would not take less than $25.000. That Mr. Ennis offered her $20,000, and she refused the offer. That Mr. Ennis then told her that the property at No. 1707 Grand avenue, which was in the same block as her property, was the same sized lot, and had better improvements on it than her own, could be purchased for $18,000, and that Mr. Ennis made the proposition that if she would sell her property to him for $20,000, he would sell the property at 1707 Grand avenue to her for $18,000. That she accepted this last proposition. That Mr. Ennis agreed with her that he and her husband would go down to an attorney's office, that of Mr. Leon Block, and have two contracts drawn, one providing for the sale of her property to Ennis, and the other providing for the sale of the property at 1707 Grand avenue to her. That she understood Mr. Ennis was the buyer of her property, but that he did not mention anybody as being the buyer. That thereupon Mr. Ennis and her husband went away, saying that they were going down to Mr. Block's office to have the contract drawn. She later went to Mr. Block's office and found nobody there but the office girl. She received a telephone call to come home, and when she arrived home she found Mr. Thompson and another young man there. That Mr. Thompson told her that he had the contract ready to sign and that she signed the contract. That after signing the contract she said to Mr. Thompson, "Where is my contract?" and Thompson replied, "It is too late; you can't get it." That when she signed the contract Mr. Ennis said: "Please don't tell anybody. Keep quiet." That Mr. Thompson read the contract over to her, but that she didn't understand what half of it meant. That when she signed this contract she thought she was going to get a contract so that she could purchase the property at 1707 Grand avenue, and that otherwise she would not have sold her property. That when Mr. Thompson told her it was too late for her to get the other property, she thought to herself that she "would not give him the abstract," but that finally her husband went down to the "mortgage man" and gave Mr. Thompson the abstract. That she had no further talk with Mr. Thompson or Mr. Ennis until they afterwards came down to her place of business to get her to sign the deed. On this occasion, Mr. Ennis, Mr. Thompson, and two other gentlemen came to her place of business about 11 o'clock in the morning, carrying a satchel, and Mr. Ennis said, "Here is $20,000," and opened the satchel and spread the money, which consisted of gold pieces, out on the floor of the store. That she did not touch the money, and did not want her husband to touch it, but that they asked her husband to ey to file suit, and another said they would close me out, and I would lose my property and I didn't know what to do." That she said to them: "I won't sign the deed because you've fooled me, and I don't want to sell it, and I will not sell it for anything." That her daughter, Mrs. Peltzman, was in the store when the gentlemen came, and later Mrs. Peltzman's husband came to the store. Later a Mr. Hock came to the store. (It will appear later that Mr. Hock was an attorney officing in Mr. Block's office, and was the notary who took the acknowledgment to the deed.) That she didn't know why Mr. Hock happened to come to the store, but that he told her she should sign the deed and get through with it. That during the time the money was on the floor, the front That she was door to the store was locked. sick and did not know what to do, but that Mr. Hock said: "Well, do it anyhow, Mrs. Alport, sign the deed and get through, I can't That Mr. Hock was stay here all afternoon." not representing the four gentlemen, and was not representing her. That her husband urged her to sign the deed, and said to her: "You are sick, and I am going away to leave you with the children, and I will go away and you can do anything you want." That finally she took hold of the pen and made her mark, and Mr. Hock said, "Mrs. Alport, will you swear?" and, "Do you sell of your free will?" and I said, "No, sir;" and then he said, "Gentlemen, she don't sell with a free will;" and the other gentleman says, "Never mind; we got her signature anyhow." After that Mr. Ennis and Mr. Thompson, my husband, and my son-in-law all went to the bank with the money. That she did not want to go to the bank, but that her daughter said, "Mama, papa says he is going to leave you," and for that reason her daughter made her go. That she went down to the bank, but did not touch the money and did not That she did not authorize Mr. care for it. Ennis' firm to receive $1,000 for her upon the contract. That she did not pay Mr. Ennis, or any one else, any rent on the place after the deed was made. That the first time she knew any rent was being paid was when notice was served upon her to move out, and that she sent Mr. Nelson and Mr. Ennis a letter, which she had her daughter write for her, and which she had sworn to before a notary public. The letter here referred to was as follows: "Kansas City, Mo., Oct. 12, '08. "Messrs. H. R. Ennis & Co.-Dear Sirs: I will not give up possession of premises No. 1731 Grand avenue until you pay me the other five thousand dollars. You know, as well as I do, that the sale was as is no sale, that you forced me to sell against my wish, in fact cheated me out of my home. You also know that my original price was twenty five thousand dollars, and as I understood the contract to read the price was to be twenty thousand dollars net, you to pay the mortgage of five thousand. You seemed to think me an unimportant personage, bargaining with Mr. Alport, and even sending me, the owner, into the kitchen. You threatened me with suit at the time, and thought you would scare me, but I never was scared, and wish I had let you file suit. Now what I have to say is that if you want a clear deed and title to that property you will obtain it only by paying me the remaining five thousand dollars. You will want possession of the place, but you will never get it for I am prepared to stay here until this matter is settled in a satisfactory way. I know you will file suit for ejecting me, but there is where trouble will start for you, for I will carry this affair on who sold their property, and that Mr. Ennis was not in any sense 'our agent." That he did not hear of the tender of $15,000 in gold until after it was made. That he called upon Mr. Ennis to find this property for him, because he understood that Mr Ennis handled considerable property in that locality. The witness did not know anything about the terms of the transaction, but stated that those matters were attended to by his employé, Mr. Seested. Mr. Seested was called as a witness for the defendant, and stated: That he was in the employ of Mr. Nelson at the time of the purchase of the property for the new site, and stated that after Mr. Ennis would make purchases of properties and make first payments on the same, Mr. Nelson would reimburse him for the outlay That Mr. Ennis was not to receive any compensation from Mr. Nelson for the purchase of this property. That Mr. Charles H. Adams, an attorney, examined the abstracts of title to the respective pieces of property for Mr. Nelson. This witness testified to the prices given for several of the other lots which were included in this 300-foot strip purchased for the new site, and from this evidence it appears that some of the properties cost more than was given for defendant's property, and some of the properties were purchased at a less figure, but it appears that the price paid to defendant was at least an average, if not a little above the average, price paid for all of the properties on Grand avenue. Meyer Peltzman, son-in-law of Mrs. Alport, testified for the defendant: That the $15,000 was deposited in her husband's name. On cross-examination she testified that Mr. Thompson never did offer to give her $25,000 for her property, but that they of fered to give her $20,000 for her property and sell her the property at 1707 Grand avenue for $18,000, but never offered to sell her the property after that time. That at the time she and Mr. Ennis came to terms about the sale of the property, Mr. Ennis asked who their lawyer was, and defendant's husband said, "Mr. Block." and thereupon Mr Ennis agreed that they would That he was present when Mrs. Alport exego to Mr. Block and have him draw up the con-cuted the deed on June 5, 1908. That he arrived tract. That she did not know that Mr. Hock at the store about 12:30 p. m., and Mrs. Alport worked in Mr. Block's law office. She further was behind a desk back of the counter, and her testified that at the time she signed the deed she husband was on the floor counting the gold. was not scared about what Mr. Ennis said That Mrs. Alport kept telling her husband to about his going to sue her, but that she was leave the money alone, but that he kept counting scared on account of her husband's saying he it and seemed excited. That when they got was going to leave her. She was asked if she through counting the money, Mr. Ennis and the was willing to trust her husband with the $15,- other gentlemen asked Mrs. Alport to sign the 000. The only answer that she would make deed, but she refused to sign it. That later to this question was, "He had it in the bank." Mr Hock came to the store, but the witness That afterwards her husband bought some prop- said he did not know why Mr. Hock happened erty on Eighteenth street, and had the deed to come. That Mr. Ennis and the other genmade in her name. When asked if her husband tlemen kept asking Mrs. Alport to sign the used a part of the $15,000 that was in the bank deed, and told her that she had her money and to buy this property, she answered: "I don't everything else, and the best thing she could do know; I guess I did." She further testified would be to sign, because "it would be just a that when she went before the notary and took lot of trouble, lawsuits and one thing and anan oath as to the contents of the letter above other, and the best you can do is to sign it and copied, she knew what was in the letter. She settle it up." And that Mr. Hock said: "You further testified that Mr Block had acted as had better sign the deed. You have got the monher attorney on one prior occasion when she ey and everything straightened up, and you will purchased some property. have lawsuits and one thing and another." That finally they persuaded her to sign the deed, and the deed as of "her own free will," and Mr. Enthat then Mr Hock wanted her to acknowledge nis asked her to swear it was of her own free will, but she refused "to swear," and Ennis said. "Well, leave it go at that; she didn't have to swear to it." That before the deed was signed Mrs. Alport and her husband conversed with each other in the Hebrew language, and Mr. Alport told her that if she was not going to take the money and sign the deed, "he was going to leave her, leave her with the children." The witness stated that he did not telephone for Mr. Hock to come down to the store, and did not know why Mr. Hock came down to the store, or who sent for him. That he did not hear Mr. Adams state that he "would not accept any deed that this woman would not acknowledge to be her free act and deed." The witness stated that he went with them when they took the money to the bank out of curiosity. That he went with his father-in-law, but did not remember whether Mrs Alport went to the bank or not. That he saw the $15,000 counted out at the bank and put in a safety deposit box. William R. Nelson, the plaintiff, was called as a witness for the defendant, and testified as follows: That he was the grantee in the deed whereby Mr. Ennis and wife conveyed to him the property in question for a consideration of $20,000; that some time before the purchase of this property he requested Mr. Ennis, who was a real estate dealer, to come to his office, and stated that he was desirous of finding a new location between Seventeenth and Eighteenth or between Sixteenth and Seventeenth streets, and desired a strip 300 feet wide running from street to street in any one of those blocks. At this time Mr. Nelson stated to Mr. Ennis the price that he would be willing to give for such a location, and told Mr. Ennis that he did not care to have the matter advertised, or, as stated in the witness' language, "We didn't care to put it on the billboard." That he fixed a price above which he would not go. and that he was not to pay Mr. Ennis any commission, and did not pay him any commission, but that Mr. Ennis was to get his commission from the people 169 S.W.-7 Mrs. Fannie Peltzman, daughter of Mrs., told them the only thing they could do was to Alport, testified: That she was present when her mother signed the contract for the sale of the lot, and that she signed her mother's name to the contract (her mother signed by mark). That she was also present when her mother signed the deed. She corroborated her mother's testimony and her husband's testimony concerning the exhibit of $15,000 in gold, and stated that she did not know why Mr. Hock happened to come to the store and take the acknowledgment of the deed, but that she did not think he was called by her father, mother, or her husband. She further corroborates the testimony of her mother and witness' husband as to the conversation occurring at the time the deed was signed. That one of the men and Mr. Hock said to the witness: "Well, Mrs. Peltzman, you just write her [Mrs. Alport's] name down." Witness said she did so because she wanted to be "respectful." She said that the reason her mother gave for not wanting to sign the deed was that she wanted that place up on Seventeenth street, or else she wanted $25,000. The witness corroborated her mother's testimony concerning the agreement reached between Mr. Ennis and Mrs. Alport prior to the execution of the contract for the sale of this land, and that when Mr. Thompson brought the contract for Mrs. Alport's signature he asked the witness to keep the sale secret. That he handed Mrs. Alport the contract, but Mrs. Alport could not read English, and handed the contract to the witness. The witness started to read the contract, but Mr. Thompson took the contract out of her hands and went up toward the front of the store and read it so fast that the witness did not think that her mother understood a word of it. That after the contract was signed, Mrs. Alport asked Mr. Thompson for the other contract, and that Mr. Thompson said: "It's too late, Mrs. Alport, I'm sorry. On cross-examination the witness testified: That she wrote the letter which her mother sent to Mr. Ennis and Mr. Nelson. That she suggested to her mother to write this letter because she thought perhaps Mr. Nelson did not know anything about the trick that had been played on her mother. When asked why she did not say anything in the letter about not get ting the property at 1707 Grand avenue, she said that her mother did ask her to put that in the letter, but she replied to her mother: "There is no use giving them your secrets." When asked if her mother was scared at the time she signed the deed conveying the property to Ennis, she said: "She wasn't exactly scared. She was very much wrought up. Well she wasn't scared about the deed or anything like that, you know. She didn't want to sign that deed. I don't know what was in her mind. She wasn't scared at their threats, but she was scared when papa said he was going away." That was the only thing that scared her. She said her father got excited over the $15,000 in gold. Before the contract was signed she heard her father say, "Go up to Mr. Block and have the contract drawn," and that the men folks went up and that her mother went afterwards. The evidence on behalf of plaintiff Nelson and defendants Ennis and Thompson was substantially as follows: make a legal tender. The witness told Mr. erty. That defendants refused to make the avenue. When defendants refused to make the Ennis that he had better make the tender in Charles B. Adams, attorney at law, testi- who took the defendants' acknowledgment to fied: That he was employed by Mr. Nelson to pass upon the abstracts to the various lots purchased by Nelson. That he was present at Mrs. Alport's place of business the day the deed from Mrs. Alport and husband to Ennis was executed. That he went down there at the request of Mr. Ennis. That before going down Mr. Ennis told the witness that Mrs. Alport and husband had refused to make a deed to the property, and asked Mr. Adams what they should do in the matter. That he the deed, testified: That at the time the deed was signed he was officing with Attorney Leon Block. That at Mr. Block's request the witness prepared the deed. That when he prepared the deed he had the contract for the sale of the property before him. That at the bottom of the contract for the sale of the property, Mr. Block had placed his "O.K," and that some of the interlineations, in the contract for the sale of the property were made in the handwriting of Mr. Block. That one of these interlineations was: "The sellers |