Gardine v. Cottey , 360 Mo. 681 ( 1950 )

CONKLING, J.

(concurring). — I concur in all that is said in

the principal opinion as to each count considered, except, that I cannot • agree, as to Count II, that, “there is nothing in this record to justify this court in overthrowing any fact issue determined by the trial court upon the conflicting oral testimony of these witnesses”.

. Count II is in equity and we consider de novo all the testimony relating thereto. The principal opinion defers to the trial court’s conclusion that, upon the instant facts, the written contract of settlement between LeRoy E. Gardine and Mary Ann Gardine “was not procured by any fraud”. For reasons stated in the principal opinion (among them, because the contract in question was "void'and against public policy”; and because of the fraud perpetrated by Mr. Gar-dine ’s counsel "in acting as attorney in the institution and consummation of her divorce action and in the execution and delivery of the conveyance under the contract”; and because "the parties are not in pari delicto”) the conveyance to the 400 acre turkey farm is therein set aside.

While I agree with all that is said in the principal opinion about those last above stated matters, from a reading of this transcript and from the statement of facts in the principal opinion it is my view that the facts made out a case upon which plaintiff was entitled to the relief sought upon the ground of fraud. As I read the facts in this transcript, I think that LeRoy E. Gardine, by his agent and attorney, by fraud, duress and concealment induced Mrs. Gardine to enter into the property settlement contract and induced her to execute to him the deed in question as to the 400 acre farm.

The facts as shown by this record, and, as stated in the principal opinion are quite revealing. I restate but a few of those facts. Mr. Cottey, counsel for Mr. Gardine, assisted the latter to change "the beneficiaries of some $38,000 of life insurance from Mrs. Gardine and the children to his estate”. Mr. Cottey also prepared Mr. Gardine’s will wherein Mrs. Gardine was excluded because she was "provided for out of entirety property”. Mr. Cottey thereafter called Mrs. Gar-dine, who already had other counsel, to his office. Of the conversation which there occurred Mr. Cottey, in part, testified: ■ " I told her if she proceeded to file suit for divorce we would contest it, we couldn’t allow the divorce or the farm to be sold On account of his condition; that it was the only way he had of making a living. I don’t recollect that she said anything to that. I told her a contested divorce suit was a hard one to win for the plaintiff — the hardest type to win for the plaintiff — that largely the basis for a divorce suit is founded on conversations between the husband and wife, and if no one else is present, if contested, such conversations are not admissible. I said it would be a public airing of the whole thing, and an occasion for making public their differences in a knock-down and drag-out. She said that was what she didn’t want. I said ‘If you are insisting it might be that a property settlement be arranged between you and Roy, but the demands you and your father are making of him he cannot meet’ ”.

Later, Mr. Cottey prepared the divorce petition for her as her counsel and represented her in court before Judge Walter A. Higbee. Mr. Cottey had prepared the decree which Judge Higbee entered in the divorce case. Among other things that decree recited that: "The court doth further find that plaintiff and defendant have fairly agreed upon a property settlement between themselves, contingent upon the granting of a decree of divorce to plaintiff herein, wherein adequate provision has been made for plaintiff in lieu of, and in satisfaction and settlement of, any claim which plaintiff might otherwise, have against defendant for alimony- that snch property settlement should be approved and confirmed. ’ ’

Judge Higbee testified: “Q. You didn’t see the property settlement? A. No. Q. After the case was before you, you didn’t see the property settlement? A. No. Q. So at no time in court the counsel for this young lady showed you the property settlement ? A. No. ”

Whether or not Judge Higbee knew what was in the contract of property settlement Mr. Cottey knew what was in it, for he, wrote it. Mr. Cottey also knew about the life insurance and the will. Mr. Cottey further knew that before the contract was executed, he had not advised Mrs. Gardine “as to her rights in the real estate owned by husband and wife as tenants-by the entirety”. The recital in the divorce decree (prepared by Mr. Cottey). that Mr.-and Mrs. Gardine had fairly agreed upon a property settlement was of itself a fraud upon Mrs. Gardine, and -upon the court.

I agree with the principal opinion that Mr. Cottey, improperly represented both parties in adverse litigation without revealing to Mrs. Gardine the serious nature and effect of the transactions upon her. financially, in order that she could, if she desired, secure her original counsel (or other counsel) to represent her. That no.lawyer may do. In re Buder, 358 Mo. 796, 217 S. W. (2d) 563. Such concealment bears on the issue of fraud and goes to the heart of the legality of the contract. At no place in this record do I find any explanation of that portion of the duress and coercion used by Mr. Cottey to Mrs. Gardine, wherein the former said that: “I told her (Mrs. Gardine) * * * we couldn’t allow the divorce or the farm to be sold on account of his Condition”.- Neither Mr. Cottey nOr Mr; Gardine could allow or disallow her a divorce if her pleadings and her evidence should entitle her to it. Such a matter is for the trial ' court.to determine and to allow or disallow. The admitted facts- show not only that Mrs. Gardine “was imposed upon and overreached”. 1-t is, my view that the admitted facts further show she was fraudulently coerced into the execution of the contract. Fraud inhered in the contract itself.

While I agree with the principal opinion, except as noted in the opening paragraph hereof, it is my conclusion from the record facts that the property settlement contract was procured by fraud. For this additional reason, as well as those stated in the principal opinion, I think the relief prayed in the second count should be granted.