Opinion
No. 41696.
September 11, 1950.
APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY, GORDON DORRIS, J.
Green Green, Will H. D. Green and H. D. Green, all of West Plains, for appellant.
E. V. Kell, A. W. Landis, West Plains, for respondent.
Plaintiffs filed this suit for the purpose of setting aside a quitclaim deed, signed and executed by plaintiff Lois J. Turner, in so far as it purported to convey land described therein belonging to plaintiff Sadie H. Day. The defendant filed a cross bill asking for specific performance of an oral contract alleged to have been entered into whereby plaintiff Sadie H. Day agreed to devise the land in question to the defendant J. Karl Turner and his wife, the plaintiff Lois J. Turner. Defendant further prayed that in case specific performance be denied then the court should determine the value of improvements made by defendant and render judgment in defendant's favor therefor. The trial court granted plaintiffs the relief prayed for and denied the defendant's cross petition. From the decree the defendant appealed.
The defendant J. Karl Turner and plaintiff Lois J. Turner, daughter of plaintiff Sadie H. Day, were married in 1922. They were divorced September 5 or 6, 1947. A property settlement was entered into wherein plaintiff Lois J. Turner agreed to execute a quitclaim deed conveying her interest in her husband's lands to him. Since the defendant owned lands in several counties, a number of quitclaim deeds were prepared and signed. The deed here in question contained the description of lands the defendant owned in Howell County. The description of the lands owned by defendant was typewritten; following this in longhand was a description of the land owned by the plaintiff Sadie H. Day. The deed had been prepared by a lawyer and mailed to the defendant to have it signed and acknowledged by his former wife. The defendant testified that after he had possession of the deed he added the description of the land owned by the plaintiff Sadie H. Day; that thereafter he went to the Day home where his wife was and the following occurred:
"A. I said, `Lois I have sold part of this property and made a quitclaim deed and made it all in this one deed,' she cut me off and said, `My lawyer said you would show up with that.'
"Q. What you said was Lois here is the deed for all the property we own together? A. We owned together.
"Q. That is all you said to her with reference to what property was contained in the deed? A. I think it is.
"Q. That is all you said? A. Yes, sir.
"Q. What did she say? A. I told you awhile ago. She said, `My lawyer said you would show up with a deed like that and for me to sign it.'
"Q. Is that all Lois said? A. I think so.
"Q. She took the deed and signed it and Mrs. Day signed it and Mr. Day signed it, is that correct? A. That is correct.
"Q. You told them the deed would not be good without 2 witnesses? A. Under the circumstances I did do that and it wouldn't have been good because she was signing without a notary present."
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"Q. But you never told Lois at any time that in that deed was the land which belonged to her mother? A. I had no occasion to. I did not say because it was all land we held together, Mr. Landis."
Mr. and Mrs. Day signed as witnesses and not as parties to the deed.
The defendant's claim of right to add the property of Mrs. Day to the deed was that he considered it to be his property; that Mrs. Day had promised and in fact had executed a will devising the property to him and his wife for life with remainder to their eldest son.
We are of the opinion that the defendant's evidence justified the trial court to enter a decree for the plaintiffs and to set aside the quitclaim deed in so far as it attempted to convey to the defendant any interest in the lands owned by the plaintiff Mrs. Day.
The attorneys representing the defendant and the plaintiff Lois J. Turner had evidently prepared the deed pursuant to a property settlement. The defendant testified that he added the lands of Mrs. Day to the deed. The evidence failed to disclose any justification for the defendant's act. Furthermore, he did not advise Lois J. Turner that he had made the addition to the deed. Lois Turner had been advised by her attorney to sign the deed when it was presented by the defendant. In the circumstances plaintiffs were entitled to the relief prayed for in their petition. No citation of authority should be necessary.
Defendant by his cross petition seeks performance of an alleged oral contract whereby he claims that plaintiff Sadie H. Day agreed that if the defendant would make improvements and take care of the farm, the property would be given to the defendant and his wife with remainder to their son. The property in question had been in the name of the plaintiff Mrs. Day for many years. She had received it from her father. For about ten years after their marriage, plaintiff Lois J. Turner and defendant lived together and apart from the Days; in 1932 they moved to the Day home. The reason therefor was stated by the defendant as follows:
"Q. After you were married in 1922 how long did you and your wife live separate from her parents? A. We lived off and on at different places around the place for 8 or 10 years.
"Q. You eventually moved in with them? A. We did.
"Q. What was the reason for that? A. The wife had tuberculosis and to get better care for the children we went to grandma's.
"Q. Was that around 1932? A. Somewhere in that neighborhood."
Defendant further testified that the property was then in the name of his mother-in-law. When he was asked if there was a house on the place, he answered, "Yes, sir, 9 room house completely furnished, modern, had lights, bath and other water." As to the alleged agreement, the defendant testified as follows:
"Q. After that time, Mr. Turner, did you have in 1932 or 1933 any agreement with Mrs. Day about the improvements on the place? A. Yes, sir, we have had several conferences at the supper table about that was going to happen in the future.
"Q. What was that? A. If I was going to make my home there to go ahead and make improvements as I was going to have it after they passed on."
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"Q. Will you repeat what that was? A. I said we had several breakfast table and supper table talks in regard to this and I was to take care of it and improve it and it was to be mine and then pass on to my son.
"Q. You or you and your wife? A. Me and my wife.
"Q. What son was that? A. Junior."
The defendant produced very little evidence, aside from his own, corroborative of his contention that an agreement had been made. Sadie A. Ream, a daughter of the defendant and plaintiff Lois J. Turner, lived in the State of California. Her deposition was taken and read in evidence. Her evidence supported defendant's claim. However, the feeling of this daughter toward her mother and her grandparents was very hostile. Her evidence cannot be given much weight.
Mrs. Day and her husband denied any agreement was made. When we take into consideration that the primary reason for the defendant's taking his family to the Day home was, to use the defendant's language, "The wife had tuberculosis and to get better care for the children we went to grandma's," we conclude the move was made not to help grandma but for grandma to extend a helping hand and to aid the defendant in discharging his most urgent and important obligation, that of caring for his children.
It is true that while all the parties lived together Mrs. Day executed a will whereby she gave to the defendant and his wife a life estate in the property with reminder to one of the grandchildren. That in itself does not amount to sufficient evidence to establish a contract. In this connection the defendant was again guilty of conduct inconsistent with fair dealing. After the divorce was granted, the defendant went to a bank, obtained the will, and without the consent of any one, had the will recorded. Defendant's attitude and his conduct are reflected in his evidence. Note what he said concerning the recording of the will.
"Q. Did you discuss with Mrs. Day the fact you were going to the bank and take out of that bank the will? A. Absolutely not.
"Q. Did you at any time discuss that with her? A. I believe I did sometime later and told her she couldn't reclaim it and if she did it wouldn't do any good because I had it recorded."
Defendant's conduct with reference to the will as well as the changing of the deed in question convinces us that he is disposed to trickery.
Let us consider briefly the improvements claimed to have been made by the defendant. Under the defendant's own evidence these improvements consisted of drilling a deep well, building of new fences, replacing old fences, and labor in maintaining the improvements from year to year. Defendant also claimed that he planted about 1,000 fruit trees. All of the improvements mentioned, except the fruit trees, were nothing out of the ordinary. They must be done on all farms in the course of years. Then, too, there was a sharp dispute in the evidence as to the amount of labor and money contributed by the defendant. The planting of the 1,000 fruit trees may sound like a real improvement. However, when the evidence is examined as to this, it is doubtful whether the planting of these trees resulted in an improvement; they may have been a detriment to the farm. Defendant testified that he paid six to ten cents per tree for the trees when purchased. When asked whether the orchard was a success, he stated, "Not too great a success." Cross-examined as to the amount of sales in fruit, he stated that one year $25 worth was sold and in another $125. That was the extent of the sales and the money therefrom was retained by the defendant. Some fruit was used by the family. Considering all of the evidence with reference to the fruit trees, we conclude that the orchard did not add to the value of the farm.
The evidence on the part of plaintiffs was that the defendant did not in fact perform much of the labor in keeping up the farm. It was in evidence, and the defendant admitted, that his principal business was in trading in farms and stock.
Taking all of the evidence into consideration, we must conclude that the benefits the defendant received by having his family living with "grandma" far exceeded the benefits which "grandma" received by reason of the defendant's labors. The defendant is not entitled to any equitable relief. Woods v. Payne, Mo.Sup., 206 S.W.2d 355, loc. cit. 358(2); Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447, loc. cit. 451, 452(1); 49 Am.Jur. 55, Sec. 41, also p. 191, Sec. 169; 58 C.J. 1198, Sec. 555, also p. 1250, Sec. 603.
The trial court having decided this case in accordance with equity and justice, the judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.