Opinion
No. 42371.
July 9, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS R. HUNT, J.
Luther W. Adamson, Kansas City, for appellants.
Paul R. Stinson, Donald H. Chisholm, Dick H. Woods, Kansas City, for respondent.
Action to determine title to real estate. Defendant, by answer and cross petition, claimed to be the owner and asked that title be adjudged in him. The Court found against plaintiffs and adjudged the title to be in defendant. Plaintiffs have appealed.
The property was the residence of plaintiffs' mother and father. It was purchased September 9, 1909, the purchase contract showing plaintiffs' mother, Amy Whittier Spiller, to be the buyer. It was conveyed by deed, October 14, 1909, to Amy Whittier Spiller and William H. Spiller, her husband (the defendant). The purchase price was $5,100; $300 was paid on or before delivery of the deed, a first mortgage for $2,750 was assumed and a second mortgage for $2,050 given. This second mortgage was paid off and released in 1914 and a new first mortgage given. In March 1919, a mortgage was made to the Prudential Life Insurance Company, which, thereafter, was the only mortgage on the property. It was payable in monthly installments and was extended by a renewal agreement in March 1924, stating the balance due to be $2,100; extended again in March 1929 when the balance due was stated to be $1,470; and extended finally in January 1935 when the balance due was stated to be $850. This mortgage was fully paid and released August 11, 1942.
Plaintiffs claim that in July 1924 defendant "by express verbal gift and contract" conveyed his interest to their mother. They further claim that defendant abandoned their mother and, thereafter, "dwelt with another woman in a state of adultery." Plaintiffs' mother died in 1947. They claim she was the sole owner of the property at her death and that defendant was barred from inheriting from her by Sec. 469.210, R.S. 1949, because of his abandonment and adultery.
Plaintiffs claim that their mother made the down payment on the house with her own separate funds and that defendant always referred to the house as hers, saying that his name was put in the deed as a courtesy or an afterthought. Plaintiffs thought Mrs. Spiller had been left some money by an aunt in Maine, but did not know her name or where she lived. About 1919, defendant began working for a firm in St. Joseph and spent much of his time there. Plaintiffs say that he came home less frequently after 1922, and began living in adultery about that time. They base their claim on what occurred in July 1924, which plaintiff Betty Adamson related as follows: "I went in the house and Mom and Papa were sitting on the davenport, and my sister Grace Ford was there, and her husband Walker Ford was there. When I came in the house Mama was crying, and Papa was quarreling with her, and I asked Mama, I said, `What is the matter?' And she said, `Your father is leaving us.' And I said, `What?' She said, `Your father is leaving us.' And Papa said, `Yes.' He says, `I am getting out of here.' He says, `I am going to leave and you can have your house.' He says, `Your money paid for it,' and he said, `You can have your house because I am going.' Mama says, `There is a mortgage on it, how will I ever pay off this great big mortgage?' Papa said, `I don't give a damn how you pay off this mortgage. It has never been my house. You paid for it. We always considered it yours. I tell you what to do, you pay off that mortgage and you pay your taxes', he says, `and you can have the damned house. I am giving it to you.' He said, `It is yours and I am getting out of here.'"
Plaintiff Grace Ford and her husband (who lived in the house from the time of their marriage in 1917) testified to substantially the same facts. Plaintiffs' evidence also was that defendant stopped paying for gas, water and other utilities and paid nothing more for the support of his wife, or for taxes or mortgage payments; and that this was all done by Mr. Ford. However, all of the mortgage renewal agreements were signed by both Mrs. Spiller and defendant, and recited that title was vested in both of them. Plaintiffs' sister, Mrs. Doris Regan (originally made a plaintiff but dropped when she said she did not authorize bringing suit for her) testified that she lived in the home after 1924 and until 1937. Beginning in 1930, she was teaching school and contributed $40 per month to the household expenses. Her son, by her first marriage, lived there, and Mr. and Mrs. Ford had three children who lived there with them. Mrs. Regan said that she never at any time heard her mother or Mr. or Mrs. Ford claim that a contract or gift had been made to give her mother defendant's interest in the property. She also said that defendant sent money to her mother from St. Joseph; he was receiving $65 per week and she thought he sent her every other pay check. (Mr. Ford said defendant did this for about one year.) There was also evidence that defendant visited his family a few times after July 1924, and that they went to see him in St. Joseph.
Plaintiffs and Mr. Ford testified that Ford made all the payments on the mortgage after July 1924 as well as upkeep, repairs and improvements on the house, and insurance and taxes, and that he supported Mrs. Spiller. Defendant and Mrs. Spiller were married in 1892 and defendant said she never had any property of her own. He said he made the original down payment on the house and paid off the second mortgage completely. He also said he made the payments on the first mortgage up to January 1941, when there was a balance of $283.50. However, he apparently meant that in the later years they were paid out of money he sent Mrs. Spiller and not by him personally. He said that he pleaded with Mrs. Spiller to come to St. Joseph, but she wouldn't come up; that "she felt she should stay with the children and help raise them and raise their families." He denied that he made any gift of his interest or any agreement to convey it. He admitted that he stopped paying for utilities and "wrote them that Ford was working in on my property there, using my current and he would pay it." He did not claim to have paid insurance, taxes or upkeep. He said the Fords had the use of the place without paying any rent. He had been receiving an old age pension during the nineteen forties. He had not communicated with his family for years, and did not know what grandchildren or great-grandchildren he had, or know about his wife's death; and plaintiffs did not know what had become of him.
Prior to bringing this suit, two others had been commenced against defendant. The first was a suit by the Fords for $21,075 for necessities furnished to Mrs. Spiller and under which the property was attached. The second was a quiet title suit by plaintiffs on the theory of title by adverse possession. Defendant had served a notice on the Fords demanding possession, and then commenced an unlawful detainer suit in Magistrate Court. Plaintiffs requested herein a finding of fact that Mrs. Spiller "purchased with her own separate money the property described" and it was refused by the Court. Findings of fact were also refused that defendant "did by express verbal gift and contract convey to Amy Whittier Spiller all of defendant's rights, interest, and title in and to the aforesaid property upon the condition that she pay off the mortgages, pay the taxes and possess the property"; and that Mrs. Spiller "paid off the mortgage indebtedness, paid taxes and insurance and maintained the property and made improvements thereon from 1924 to the date of her death." The Court's decree found that title to the property "was acquired by the defendant and his wife, Amy Whittier Spiller, as tenants by the entirety, in 1909, and that tenancy remained with the defendant and his said wife from and after that time until her death on or about June 2, 1947, and that from and after that time, the legal, record and equitable title to said property has been and now is in the defendant in fee simple absolute, free from the claims of the plaintiffs and all other persons."
Sec. 510.310, R.S. 1949 (sub-section 4) provides "in cases tried upon the facts without a jury" that "the judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In view of the Court's action, we must consider that it found Mrs. Spiller did not purchase the property with her own separate money and did not pay off the mortgages; and we think that finding must be upheld. There is really no substantial evidence that she ever did have any separate property and there is positive substantial evidence to the contrary. The evidence fully warrants a finding that defendant made the original down payment, paid off the second mortgage and paid the first mortgage down to the amount for which it was renewed in 1924, namely $2,100. How much more he paid (or furnished to his wife from which it was paid) is indefinite; but there is evidence that he sent her money for several years after that time. Apparently, Mrs. Spiller lived in the house with the Fords (and at times her other two daughters lived there) under a loose arrangement to share in expenses and upkeep in lieu of rent, or at least the Court could so find. The family knew the state of the title and said there had always been comment about it. The evidence of a verbal gift, and performance referable to it alone, is far from being so clear, cogent and convincing as to leave no reasonable doubt in the mind of the Chancellor about it. See Schebaum v. Mersman, Mo.Sup., 191 S.W.2d 671; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; Emmel v. Hayes, 102 Mo. 186, 14 S.W. 209, 11 L.R.A. 323; Sitton v. Shipp, 65 Mo. 297. Under the circumstances of this case, we cannot say the finding of the Chancellor (that no verbal gift and contract to convey defendant's interest in the property was made) was clearly erroneous; and, therefore, we must accept his finding because it is supported by substantial evidence. Although we consider such a case de novo on appeal, the force of the claim now made is weakened by the circumstances that no such claim was made or pressed by Mrs. Spiller during her lifetime; that no conveyance was ever asked for during the successive renewals of the mortgages for much reduced amounts; that plaintiffs did not make such a claim until after two suits had been brought to obtain title on other theories; and that Mrs. Regan, who lived in the house from 1924 to 1937, never heard such a claim made by anyone. Since the Court's finding against plaintiffs on the facts must be sustained, and this finding disposes of the case, it is unnecessary to consider the questions raised as to the applicability of the statute of frauds and the statute of limitations.
After plaintiffs filed their timely motion for new trial, they filed another motion (27 days later and 29 days after entry of judgment) called "Motion for an Order of New Trial" which asked the Court of its own initiative, to order a new trial. Attached to this motion were photostatic copies of defendant's applications to the State Social Security Commission for old age assistance, which contained statements that he had no real estate. Of course, this was only a suggestion to the Court to act on his own motion as he could then have done under Sec. 510.370, and plaintiffs do not contend otherwise. However, plaintiffs do say that these statements should estop defendant to now claim the property involved in this case. Of course, the granting of a new trial on his own initiative was a matter of discretion for the trial court, and plaintiffs' showing was in the nature of a claim of newly discovered evidence which had to be made in a timely motion for new trial to preserve anything for appellate review concerning it. In any event, this would only be cumulative evidence of plaintiffs' claim, and in this situation there is nothing before us that we can consider concerning this matter.
The judgment is affirmed.
All concur.