Lewis v. Lewis

• Decision Date: 04 September 1945
• Docket Number: 39359
• Parties: J. v. Lewis v. Edith G. Lewis, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 557

354 Mo. 415

J. v. Lewis v. Edith G. Lewis, Appellant

No. 39359

Supreme Court of Missouri

September 4, 1945

Motion for Rehearing or to Transfer to Banc Overruled October 1 1945.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

John Marley and Trusty & Pugh for appellant.

(1) The assignments are all absolute and unconditional on their face and were the result of intention and deliberation over a period of almost a month, and were not spontaneous, and from the above the presumption of ownership and innocence of fraud on her part arose and existed, and the burden of proof of overcoming all of the above was on plaintiff and plaintiff failed to meet such burden. Weitzman v. Weitzman, 156 S.W.2d 906; McKenzie Carpet Co. v. Leffler, 184 S.W. 905; Smith v. Smith, 181 S.W.2d 793; Bragg v. Kirksville Packing Co., 226 S.W. 1012; McCaw v. O'Malley, 249 S.W. 41; Hernandez v. Prieto, 162 S.W.2d 829. See also cases under (3), (4), (5) and (8). (2) The allegations of the second amended petition and the plaintiff's evidence are that the transfers from him to her of the insurance policies were for the purpose of creating a trust for the sole benefit of the children, and neither the certificates nor the insurance policies were to go to her as a part of any property settlement, present or future, the plaintiff was merely attempting to plead and to prove a transfer and delivery in trust for the benefit of his children, and any oral promise to do some future act, contrary to such documents, would be insufficient to alter the above as would any attempted property settlement not made for the purpose of living apart and where the wife would get nothing, or very little, as such would be against public policy and void. Korompilos v. Tompras, 251 S.W. 80; McPheeters v. Scott County Bank, 63 S.W.2d 456; Ketchum v. Miller, 37 S.W.2d 635; Stephens v. Moore, 249 S.W. 60. (3) There is no allegation in the pleading and no claim and no proof that the house held by entirety or the currency he charged her with unlawfully converting were to go to her as a part of any kind of a property settlement; and by the pleading Lewis claimed his interest in the house and claimed all of the currency; and there is no claim of any other consideration to her in support of a theory of an oral property settlement and contrary to such written documents; and even a promise, especially oral, by either would be insufficient, and unreasonable property settlements, especially when not for the purpose of separation and living apart, are against public policy and void. Speiser v. Speiser, 175 S.W. 122, 188 Mo.App. 328. (4) The transfers being absolute on their face and from husband to wife the law imports a consideration and no further consideration is necessary. Keener v. Williams, 271 S.W. 489; Welch v. Mann, 92 S.W. 98. (5) If such absolute and unconditional transfers were made by him to her "without any agreement" as Lewis says, then defendant was not guilty of defrauding the plaintiff either by promises, which are insufficient, or by failure to re-transfer to the trust company under alleged promises, and plaintiff would have no reversionary interest based on fraud, or on some alleged verbal promise or oral agreement, or on some indefinite theory of a future property settlement, as such kind of property settlement theory would be against public policy and void. Reed v. Cook, 55 S.W.2d 275; Speiser v. Speiser, 175 S.W. 122. (6) That part of the decree and judgment of the court using a property settlement as the basis of setting aside such transfers to her is beyond and outside of the scope of the second amended petition, and in equity as in law cases the court is limited to the issues contained in the pleading. Munford v. Sheldon, 9 S.W.2d 907; Barlow v. Scott, 85 S.W.2d 504; Friedel v. Bailey, 44 S.W.2d 9. (7) If such transfer of such stock certificates or the transfer of the policy interest were for the purpose of re-transfer by her to the Commerce Trust Company into trust property for the sole benefit of the children, then such property became impressed with such trust and belonged therein, and plaintiff would have no reversionary interest, and the court would consider as done that which was intended to be done. Korompilos v. Tompras, 251 S.W. 80; McPheeters v. Scott County Bank, 63 S.W.2d 456; Ketchum v. Miller, 37 S.W.2d 635; Stephens v. Moore, 249 S.W. 601. (8) There are insufficient allegations and insufficient evidence of fraud in the inducement, and fraud cannot be predicated upon a promise to perform even when there exists a secret intention not to perform at the time a promise is made, and cannot be predicated upon an oral arrangement for some indefinite future property settlement, and the wife is to get nothing, and living apart is not the purpose. Shaffner v. Moore Shoe Co., 35 S.W.2d 935; Barlow v. Scott, 85 S.W.2d 504; Reed v. Cooke, 55 S.W.2d 275; Speiser v. Speiser, 175 S.W. 122. (9) The facts and the pleading established both estoppel and laches of plaintiff, and this defense is available to defendant, even though she did not plead it, as the facts creating an estoppel appear from the case made by plaintiff. Berry v. Cobb, 20 S.W.2d 296; State ex rel. Consolidated School Dist. No. 2 of Pike County v. Haid, 41 S.W.2d 806; State ex inf. McKittrick ex rel. City of Campbell v. Arkansas-Missouri L. & P. Co., 93 S.W.2d 887; Fairgate Realty Co. v. Drozda, 181 S.W. 398; Troll v. St. Louis, 168 S.W. 167. (10) The court erred in overruling the defendant's motion to elect and her objection to the introduction of any evidence under the pleading, because such pleading does not state a cause of action in equity and it commingles a tort action and for a money judgment, and it does not sufficiently plead fraud, and merely pleads an indefinite promise about some indefinite parol understanding that is contrary to what is shown by the written instruments. Weitzman v. Weitzman, 156 S.W.2d 906; Taverno v. American Auto Ins. Co., 112 S.W.2d 941; Maguire v. Tyler, 47 Mo. 115; Henderson v. Dickey, 50 Mo. 161. (11) The court erred because in a court of equity the facts show that this plaintiff is unworthy of belief, and show that under the facts he has no standing in a court of equity. Cases under other points.

David M. Proctor and William I. Potter for respondent.

(1) Where a conveyance has been secured through fraud, undue influence, misrepresentation, or imposition; or where there has been no meeting of minds of the parties to a written instrument, or where there has been a total failure of lawful consideration, a court of equity may cancel such conveyance or contract and restore the parties to their former positions. Morris v. Hanssen, 336 Mo. 169, 78 S.W.2d 87; 9 C.J., p. 1166; Mellon v. Webster, 5 Mo.App. 449; Bell v. Campbell, 123 Mo. 1, 25 S.W. 359; McKenzie Carpet Co. v. Leffler, 192 Mo.App. 608, 184 S.W. 905; Currey v. Greffet, 115 Mo.App. 364, 90 S.W. 1166; Fulbright v. Phoenix Ins. Co., 30 S.W.2d 870, 329 Mo. 207; Platt v. Huegel, 326 Mo. 776, 32 S.W.2d 605; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28; Brenemen v. The Laundry, 87 S.W.2d 429; 3 Black on Rescission and Cancellation (2 Ed.), sec. 646, p. 1561; Bickel v. Argyle Inv. Co., 343 Mo. 456, 121 S.W.2d 803; State ex rel. Breit v. Shain, 342 Mo. 1148, 119 S.W.2d 758; Missouri Cattle Loan Co. v. Ins. Co., 330 Mo. 988, 52 S.W.2d 1; Whalen v. Buchanan County, 342 Mo. 33, 111 S.W.2d 181; Rhoads v. Rhoads, 342 Mo. 934, 119 S.W.2d 247. (2) The trial court properly overruled defendant's objection to the introduction of evidence and her motion to elect. Pancoast v. Siegel Co., 60 Mo.App. 57; Jordon v. Transit Co., 202 Mo. 418, 101 S.W. 11; Alexander v. Relfe, 74 Mo. 475; Sec. 922, R.S. 1939; Morris v. Hanssen, supra; State ex rel. Cochrum v. Southern, 229 Mo.App. 749, 83 S.W.2d 162; Merchants Exchange of St. Louis v. Knott, 212 Mo. 616, 111 S.W. 565; Mulally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645; Abramsky v. Abramsky, 261 Mo. 117, 168 S.W. 1178. (3) Appellate courts usually defer to the findings of the chancellor where there is conflicting verbal testimony involving the credibility of witnesses before him. Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59. (4) The trial court erroneously found it was without jurisdiction to order restoration to plaintiff of the currency but as this cause is heard by this court de novo, it has the power to order restoration of the currency, and upon failure or refusal of appellant to do so to order judgment for the amount thereof. Hamilton v. Steininger, supra; Hetzler v. Millard, 348 Mo. 198, 153 S.W.2d 355; Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81; Alexander v. Relfe, supra; Missouri Cattle Loan Co. v. Ins. Co., supra; Frost v. Frost, 200 Mo. 474, 98 S.W. 527; Marble v. Jackson, 245 Mass. 504, 139 N.E. 442; Cram v. Cram, 160 N.E. 337; Wingate v. Bunton, 193 Mo.App. 470, 186 S.W. 32; Uhrig v. Hill-Behan Lbr. Co., 341 Mo. 851, 110 S.W.2d 412.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

In this action the wife, Edith G. Lewis, appeals from a judgment and decree in favor of her husband, J. V. Lewis. The husband had transferred certain personal property to his wife and the decree sets aside and cancels the transfers.

The essential facts which furnish the background for the problems involved are these:

J. V and Edith Lewis were married and moved to Kansas City in 1923. She is now forty-four and he is forty-seven. They have two children, a girl ten and a boy eight. Until 1930 he was employed by the Kansas City Power & Light Company as a right-of-way engineer. Since 1930 he has been employed by Kansas City and is now Superintendent of Parks. From his salary and investments and from money that came to him,...