Opinion
No. 42992.
May 11, 1953. Motion for Rehearing or to Transfer to Court en Banc Denied June 8, 1953.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THOMAS R. HUNT, J.
Marcy K. Brown, Jr., Kansas City, for Thelma Lemons, appellant-defendant.
Eugene Taxman and Bernard T. Hurwitz, Kansas City, and Ira K. Witschner, Kansas City, for Joseph Harrington, respondent-plaintiff.
T. James Conway, Jr., Kansas City. Charles V. Garnett, Kansas City, for respondents Davidson and Greer.
Plaintiff, Joseph Harrington, brought a statutory action to quiet title to improved real estate, section 527.150 RSMo 1949, V.A.M.S., joining six defendants.
Defendants Mildred Muzzy, Virginia Muzzy, and Standard Investment Company disclaimed. Plaintiff, Joseph Harrington, defendant, Thelma Lemons, and defendants, James Davidson and Dean Greer claimed fee simple title and each prayed that the court ascertain and determine the estate, title and interest of the parties, respectively, and adduced evidence to sustain their respective claims.
The trial court adjudged fee simple title in defendants Davidson and Greer as tenants in common, and adjudged that neither plaintiff nor defendant Lemons had any claim or title.
Plaintiff Harrington did not appeal; the sole appellant is defendant Lemons. It is her position: that the sole issue before this court is whether her title is better than the tax title of defendants Davidson and Greer; that inasmuch as plaintiff Harrington did not appeal, the judgment declaring that he had not title or interest is final and conclusive; that plaintiff having acquiesced in, and being bound by, a judgment which adjudged that he had no title, is not concerned with whether title be finally adjudged in defendant Lemons or Davidson and Greer; and that inasmuch as the deed upon which she relied "was not attacked in any way by respondents by any pleading or in any of the evidence presented by them", she may ignore all evidence applicable to her claim of title. Appellant Lemons, pursuant to this position, has deliberately failed and refused to brief or argue any issue (including that of whether she has any title) raised by the evidence adduced by plaintiff Harrington.
Respondents Greer and Davidson (for convenience hereinafter referred to as Davidson) have filed a motion to dismiss Lemons' appeal and urge: That the judgment contains this language, "The court further finds from the evidence that the plaintiff Joseph Harrington acquired and held a title which was, and still is, superior to any title or claims in the aforesaid premises which were ever acquired or held by the defendants * * * Thelma Lemons * * * or either of them * * *"; that this language constitutes an express finding which is a proper part of the judgment in a quiet title action, wherein the interested parties have each asked the trial court to, and wherein the trial court must under Section 527.150, supra, "ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property"; that appellant Lemons has deliberately failed and refused to brief or argue any proposition directed to demonstrating that the aforequoted portion of the judgment was erroneous; that before appellant Lemons may be given any relief in this court which would inure to her benefit, she must sustain the proposition that her title is a better title than that of either plaintiff Harrington or respondent Davidson; and that Lemons has abandoned one of the two essential propositions she must establish before title may be adjudged in her.
Appellant Lemons, in a reply brief, has urged that the above quoted language was not a proper part of the judgment; that the only proper and necessary judgment was that which adjudged that plaintiff and Lemons had no interest or title, and that Davidson had fee simple title.
Nonappealing plaintiff Harrington has briefed and orally argued on the theory that as to appellant Lemons, he is a respondent. We reserved the question of plaintiff's right to brief and argue the case.
The view we take makes it unnecessary to determine whether the above quoted language making a finding of title as between plaintiff and Lemons was a proper part of the judgment, or whether that language should be considered in the nature of a mere finding, recital or opinion, not part of the judgment determining the interests, respectively, of the parties. We observe, however, that it is well established that a judgment or decree in a quiet title action must affirmatively adjudge the title of the several parties. Hansen v. O'Malley, 356 Mo. 908, 913[3], 204 S.W.2d 281, 283 [4, 5]; Armor v. Frey, 226 Mo. 646, 662-664, 126 S.W. 483, 486, 487. But it would also appear that a judgment in this case which adjudged that Davidson had title and that neither plaintiff nor Lemons had title, would be a sufficient judgment, responsive to the issues framed by the pleadings, and disposition of the parties' interests as required by Section 527.150. Armor v. Frey, supra. This is not to say, however, and we do not decide, that a finding (not a separate finding of fact, but a finding contained in and made a part of the judgment itself) as between plaintiff and Lemons was not a proper part of the judgment; and this, even though it may not have been an essential part of such judgment.
We shall assume for the purposes of this case that the finding of the trial court as to superiority of title between plaintiff and appellant Lemons was not part of the judgment from which Lemons appealed; that the judgment adjudicated only that Davidson was the owner in fee simple, and that plaintiff and Lemons had no interest of any nature. Even so, and even though it be also assumed that plaintiff is not a respondent, and that by reason of his acquiescence in the judgment plaintiff is not concerned with the determination of title as between Lemons and Davidson, the difficulty with Lemons' position is this: Lemons' title (even as between her and Davidson) is dependent upon all the evidence in the record (irrespective of by whom adduced) which is applicable to the issue of whether Lemons has any title. That is to say, Lemons, like any other party, must recover on the strength of her own title. If she has no title, she is not aggrieved by a judgment which places title in Davidson and, of course, may not complain thereof. Cullen v. Johnson, 325 Mo. 253, 271, 29 S.W.2d 39, 46.
Now, Lemons adduced evidence to establish her title, a deed in which she claimed to be the grantee. Davidson did not himself testify or adduce evidence in the nature of an attack upon Lemons' deed. But plaintiff Harrington did adduce substantial evidence tending to prove that that deed passed no title to Lemons. This evidence was and still is in this case and must be considered on the question of whether Lemons proved any title. Under the assumptions we have made, evidence applicable Solely to the issue of the superiority of title between plaintiff and Lemons would be of no concern on the issue of superiority of title between Lemons and Davidson, Botto v. James, Mo.Sup., 209 S.W.2d 256, 259[1]; but evidence applicable to the question of title or no title in Lemons is relevant on the question of whether Lemons sustained the burden of proving any title or interest whatsoever.
Thus, Lemons may not soundly take the position here that, simply because she introduced in evidence a deed purportedly conveying title to her and adduced evidence tending to show that she had possession of the property for a period of time, she may ignore the great mass of evidence directed to the proposition that the deed under which she claims, passed no title to her and that she in fact had no possession. Her burden, even under the assumptions made, is first to convince this court that, under all the applicable evidence, she had some title or interest and, next to demonstrate that such title or interest is superior to that of Davidson. She has failed to discharge the first part of this burden, except by assuming that the deed under which she claims conveyed some title to her and by further assuming that she had possession of the property. No analysis is made of, and no point or argument is based upon, the evidence tending to show no title or possession in her.
Our review of this case, tried to the court without a jury, is as of an action in equity; the judgment may not be set aside unless clearly erroneous, but we must make our own findings of fact and reach our own conclusion on the weight of the evidence. Section 510-310, RSMo 1949, V.A.M.S.; Faire v. Burke, Mo.Sup., 252 S.W.2d 289, 290[1].
We have made a careful examination of all the evidence, including the many exhibits, and we are convinced, and so hold, that appellant Lemons has failed to prove any title and that, therefore, she may not complain that title was adjudged in Davidson.
Miss Lemons relies upon a warranty deed, dated August 14, 1941, and recorded April 24, 1948, which purposes to be a conveyance from Mary Henn to Thelma L. Lemons. (It is conceded that Mary Henn, who died in February 1942, owned the property prior to August 1941.) This deed shows that erasures had been made in the spaces wherein the name and status of the grantee appear. Thus, the words "Thelma L. Lemons, a single woman" have been inserted over a prior erasure and in type different from that contained in the unchanged portions of the deed. Capital X's have been inserted after the words "a single woman" in the rest of the "grantee" space from which other words had been eliminated by erasure. It is our conclusion that the grantees in the deed at the time it was executed and delivered by Mary Henn were "Virginia Muzzy and Mildred Muzzy, as joint tenants and not as tenants in common", and that the deed conveyed no right, title or interest to appellant Lemons.
Virginia Muzzy and her daughter Mildred, parties defendant, disclaimed any interest, and Virginia Muzzy testified for Lemons. Virginia Muzzy had entered into a contract, dated May 10, 1941, with Mary Henn to buy the property, and deposited $100 with Mr. Ross, who represented Mrs. Henn. The original contract provided for a sale price of $1,500. Mr. Ross said that Mrs. Muzzy came to his office on a Saturday (apparently August 9, 1941) and stated that the price must be reduced or she would refuse to purchase and would forfeit her $100 deposit. This, because she had learned of some additional taxes against the property or of the existence of a sheriff's deed in the hands of Standard Investment Company (also a defendant which disclaimed). Ross and Mrs. Muzzy went to the office of Standard Investment Company where a quitclaim deed was obtained upon payment by Mrs. Muzzy of $110.30. This quitclaim deed, according to the records of Standard Investment Company, conveyed the property to Virginia and Mildred Muzzy. Mrs. Muzzy had a cashier's check for $1,000 payable to Mary Henn. Ross and Mrs. Muzzy then went to the home of Mary Henn and, while Mrs. Muzzy waited in the automobile, Ross, after a conversation with Mrs. Henn, delivered the check to Mrs. Henn and a warranty deed to Mrs. Muzzy. Ross testified that there were no erasures on that deed; that he could not state positively who was or were the grantee or grantees; that he was not informed and had no reason to believe that, during the entire period from May 10 to August 9, Mrs. Muzzy was acting for anyone other than herself; that he knew Miss Lemons, but that Mrs. Muzzy did not mention Thelma Lemons during all that time.
On July 9, 1941, Mrs. Henn's attorney mailed to Mr. Ross a warranty deed in which the named grantees were Virginia Muzzy and Mildred Muzzy. However, it was conceded that that deed was not the one delivered at the time the deal was closed and that that deed was never delivered. There was no satisfactory testimony as to when or where the deed delivered was prepared. On July 19, 1941, a letter was mailed to Mrs. Virginia Muzzy, then residing in Kansas City, Kansas, by Mrs. Henn's attorney, advising her that a warranty deed conveying the property to her and her daughter as joint tenants and not as tenants in common had been delivered to Ross' office and that if the sale was not closed by July 23, 1941, her deposit would be forfeited.
There was expert testimony to the effect that only a few of the erased letters could be deciphered. However, the expert established that, on the back of the deed (which contained the standard blanks describing the conveyance from a certain party to another, etc.), where the words "Thelma L. Lemons of Jackson County, Missouri" followed by two lines of X's appeared over an erasure, the following letters and words had been erased: ".............. ZY .............. D ...... Y, as joint tenants and not as tenants .... .........."; that by supplying the unfilled spaces with certain words which had been suggested, the following words fitted exactly into the spaces which had been erased: "Virginia Muzzy and Mildred Muzzy, as joint tenants and not as tenants in common."
It was the position of appellant Lemons, supported by the testimony of Mrs. Muzzy, that Mrs. Muzzy was at all times acting as agent for Miss Lemons. We are unable to accept the explanation of the circumstances surrounding the execution and delivery of this deed as given in evidence by Mrs. Muzzy and Miss Lemons as establishing that the deed conveyed any title to Thelma Lemons. Thelma L. Lemons had known the Muzzys for many years, probably since 1930 or 1931. Miss Lemons and Mildred Muzzy worked for the same company. Miss Lemons was a machine operator. She had earned $25 a week, and, at times recently before the trial, had made as much as $50 a week, but not often. By deposition, she testified that she had saved money, retained it in cash, and in 1941 asked Virginia Muzzy to find for her a good investment; that she handed to Mrs. Muzzy in cash the purchase price of the particular piece of property. At the trial, however, both Virginia Muzzy and Miss Lemons testified that the latter had loaned Virginia Muzzy money over a period of years, in amounts ranging from one dollar to larger amounts; that Virginia Muzzy had kept an account, and, when the total was $1766, executed a note for that amount, dated July 19, 1939, due a year after date payable to Miss Lemons. There is on the face of the note the words: "Cancelled. T.L. Lemons. Paid July 19, 1940. T.L. Lemons." On July 19, 1941, a new note in the same principal sum replaced the one just referred to. There is written on the face of the latter: "Paid One thousand dollars, Aug. 9, 1941. T. L. Lemons." As we understand, Mrs. Muzzy had obtained settlement of a judgment for personal injuries to Mr. Muzzy (deceased some years prior to the instant trial), and thus in 1940 or 1941 had funds available to pay Miss Lemons. Their version was that on August 9, 1941, Miss Lemons and Virginia Muzzy went to a bank where Mrs. Muzzy had an account; that Mrs. Muzzy issued her check to "Self" for $1000 and purchased a cashier's check in that sum, payable to Mary Henn. The "bank stub" shows that the cashier's check was to the order of Mary Henn and purchased by Mrs. Muzzy. Mrs. Muzzy's check to "Self" for $1000 contains the notation. "For T.L. Lemons, paid on $1766 note, balance due ____" (the figure is obliterated). Mrs. Muzzy then signed a new note for $766. There are notations on the back of this note indicating credits of $100 (deposited on the purchase price of the property by Mrs. Muzzy) and of $110.39 (paid by Mrs. Muzzy for the quitclaim deed received from Standard Investment Company).
We deem it significant that while this note for $766 is dated August 9, 1941, the very day the cashier's check for $1,000 was obtained, no explanation is made as to why a new note was executed for $766 and thereafter payments credited thereon for $100 and $110.39, when the $110.39 expenditure was made on that same day and the $100 expenditure had been made the preceding May 10. It would seem that a new note for $555.61, the difference between $1,766 and $1,210.39 ($1,000 plus $100 plus $110.39) would have properly reflected the status on August 9, And in this connection, Miss Lemons testified that she endorsed the two credits on the $766 note at the time the transaction occurred. Obviously, however, the $100 payment was made in May 1941, long before the $766 note was claimed to have been executed.
The real estate contract heretofore mentioned contains the signatures of Mary Henn and Virginia Muzzy on the lines provided for signatures. Following the signature of Virginia Muzzy is, in parentheses and in different ink: "(Agt. for Louise Lemons)". Above the signatures are these words: "O. K. Virginia Muzzy, O. K. Mary Henn, O. K. Louise Lemons" and typed just above, in type different from that in the rest of the contract, is: "You are hereby authorized to deed above property to Louise Lemons."
Mrs. Muzzy and Miss Lemons testified that the deed upon which appellant relies was delivered by Mary Henn to Miss Lemons when Mrs. Muzzy and Miss Lemons were seated in an automobile in front of Mary Henn's home; that the deed was in an envelope; that neither of them looked at the deed at the time; that Miss Lemons took it to Mrs. Muzzy's home and placed it on a desk; that at some time thereafter Miss Lemons looked at the deed and found that the grantee was Louise Lemons; that her name was Thelma Louise but, inasmuch as her charge accounts were in the name of Thelma Lemons, she thought the grantee should be Thelma Lemons rather than Louise Lemons. (It is noted that the real estate contract, on which appeared the various "okays", contained: "O. K. Louise Lemons".) The deed contained no erasures at that time. Virginia Muzzy, at Miss Lemons' suggestion, returned the deed to Mrs. Henn and left it there to be changed from Louise Lemons as grantee to Thelma Lemons as grantee. Mrs. Muzzy and Miss Lemons later returned to Mrs. Henn's home and picked up the deed which was then as it now appears. No explanation was made of the obvious extensive erasures which appeared on the deed, much of the erased part covered with X's, when the only change requested was a substitution of "Thelma" or "Thelma L." for "Louise."
After receiving the "corrected deed" from Mrs. Henn, Miss Lemons again placed it on the desk in the Muzzy home. It seems that the Muzzys were then living in Kansas City, Kansas, and that Miss Lemons spent a great deal of her time there, although she apparently maintained a residence with her parents in Kansas City, Missouri. Virginia Muzzy's mother became ill and it was suggested that she be moved to the house on the instantly involved property. From then on, for a period of time, the Muzzys and Miss Lemons divided their time between the Kansas address and the property involved, although at times Miss Lemons stayed with her parents. During this period (the deed was apparently still on the desk), some of the effects of the Muzzys and of Miss Lemons were moved out of the Kansas house by some unknown person. These articles were located several months later in a warehouse, and were then transported to the house involved and placed on the third floor. From time to time, these articles, including a stack of old magazines, were brought downstairs and Mrs. Muzzy would go through them. During one of these "sorting sessions" in April, 1948, Mrs. Muzzy discovered the warrantly deed in an old magazine. Miss Lemons immediately thereafter recorded the deed, although she testified that when she received the deed seven years before she knew nothing of the desirability of its being recorded, and did not know when she learned that it should be recorded.
Miss Lemons had paid no taxes and carried no insurance on the property. She had paid some of the water bills, but they were billed in Mrs. Muzzy's name. She had paid some gas bills issued in her (Miss Lemons') name. The Muzzys had paid no rent. Miss Lemons received no return on her "investment".
Plaintiff Harrington testified that he visited the premises in 1947 and talked with Virginia Muzzy; that she then claimed that she, Virginia Muzzy, and her daughter, Mildred, owned the property. On July 16, 1947, according to the records of Standard Investment Company, Virginia Muzzy represented that the quitclaim deed theretofore delivered on August 9, 1941, had been misplaced; that a duplicate quitclaim deed was prepared and delivered conveying the property to Virginia and Mildred Muzzy.
In 1942 a lawyer who had theretofore represented both Virginia Muzzy and her daughter obtained separate judgments against them for legal services rendered and moneys advanced. Virginia Muzzy's interest in the real estate was conveyed to a straw party for the administratrix of the attorney's estate by a sheriff's deed (the result of an execution on the judgment) dated February 28, 1945, and recorded May 5, 1945. On July 25, 1946, in an rejectment suit, the straw party for the administratrix had obtained a judgment against Virginia Muzzy for possession.
Upon the whole record, we are convinced that the warranty deed relied upon by appellant Lemons did not convey any title to her, and that she was never in possession of the premises. It follows that, having failed to sustain the burden of proving title in herself, she may not complain of and is not aggrieved by an adjudication of title in respondents Davidson and Greer and that the judgment of the trial court should be and is affirmed.
VAN OSDOL and LOZIER, C.C., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.