Scheer v. Gerleman
| Decision Date | 11 July 1949 |
| Docket Number | No. 41076.,41076. |
| Citation | 221 S.W.2d 875 |
| Parties | SCHEER v. GERLEMAN et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.
Action by Carrie B. Scheer against V. Gerleman, May Coghlan, H. H. Scheer, and Louis Miller to set aside certain conveyances of land and for a declaration that plaintiff and defendant H. H. Scheer each owned an undivided half interest therein and for other relief, wherein defendants cross-complained. From an adverse judgment, plaintiff appeals.
Affirmed.
Suelthaus & Krueger and G. H. Suelthaus, St. Louis, for appellant.
Francis M. O'Brien, Theo. C. Eggers, Charles E. Thompson, St. Louis, for respondents.
BOHLING, Commissioner.
Carrie B. Scheer, plaintiff, appeals from a judgment entered against her on count one of her petition in equity against V. Gerleman, May Coghlan, H. H. Scheer, and Louis Miller. Carrie B. and H. H. Scheer are husband and wife. Louis Miller is the son of Carrie B. Scheer by a former marriage. V. Gerleman and May Coghlan are daughters of H. H. Scheer by his first wife. The petition was in three counts.
The record in this family controversy is lengthy. We shall strive to hold the opinion within reasonable bounds. The issues are:
Whether H. H. Scheer, about April 10, 1935, agreed that if plaintiff would assist him in refinancing certain real estate and in operating and managing said properties, and enter into a marriage contract with him, he would vest plaintiff with an undivided one-half interest in what are commonly known as 6816 Natural Bridge road in the county of St. Louis, and 4646 Carrie avenue in the City of St. Louis, Missouri (known in the record as the Natural Bridge and Carrie avenue properties, respectively) and whether plaintiff accepted said offer and performed her part of the agreement. The title to said real estate was placed in Louis Miller as straw man, plaintiff claims in trust for herself and Scheer. Plaintiff charged that thereafter Scheer fraudulently caused Miller to execute deeds in blank to said properties and used said deeds to vest the title to the Natural Bridge property in V. Gerleman and the title to the Carrie avenue property in May Coghlan. Plaintiff asked the court to determine title to said real estate, to divest the respective titles out of said grantees, and to vest said titles in plaintiff and H. H. Scheer, each to own an undivided one-half interest. Plaintiff also alleged that she was the holder of first and second deeds of trust and notes on the Natural Bridge property and of a second deed of trust on the Carrie avenue property. Plaintiff sought an accounting of the rents collected, the sale of the real estate et cetera, and general relief.
In count two, dismissed at the close of plaintiff's evidence, plaintiff sought a money judgment against Scheer for services rendered.
Plaintiff put in issue in count three whether the aforesaid conveyances to V. Gerleman and May Coghlan were fraudulent and void as against plaintiff's inchoate right of dower.
We do not develop in detail the separate answers and crossclaims. They will be developed if and when necessary. Plaintiff's claims were controverted. V. Gerleman and May Coghlan separately claimed, among other things, to be the owner of the Natural Bridge property and the owner of the Carrie avenue property, respectively, and respectively requested the cancellation of the deeds of trust held by plaintiff against their said respective properties. Louis Miller filed no pleading.
Plaintiff's separate replies presented pleas in denial and in avoidance of the new matters in the answers and cross-claims.
The decree found for defendants on and dismissed count one of plaintiff's petition. The finding was for plaintiff on count three and the aforesaid deeds vesting title in V. Gerleman and May Coghlan, respectively, were set aside, and the respective titles to said properties were divested out of the said V. Gerleman and May Coghlan and were vested in defendant H. H. Scheer subject to the inchoate right of dower of plaintiff; and the deeds of trust held by plaintiff against said properties were cancelled and ordered released. The separate cross-claims of the defendants were dismissed.
Scheer's first wife was Mary Elizabeth Scheer, known as "Lizzie" and "L. M. Scheer." They had two daughters: May (now Coghlan), born in 1903, and V. (now Gerleman), born in 1905. They were divorced in 1925. He married again. His second wife died in 1931. Thereafter his first wife returned and acted as his housekeeper. She is now dead.
Scheer was experienced in banking, building and contracting, building and loan business, and in carpenter work.
In 1921 Scheer organized the Corporation Loan and Investment Company, a Missouri corporation, with fully paid capital of $25,000. The Scheer family had control. He was its president and manager and May was its secretary. He gave each daughter $5,000 of the stock. At different times his daughters gave him savings to invest. Scheer also owned $16,000 of fully paid stock of the Grand National Bank, a national banking corporation.
About February 1, 1932, plaintiff, then Carrie Bessie Miller, rented a bungalow on Hunter avenue from Scheer, who resided about three blocks distant. Plaintiff's son, Louis Miller, was born March 10, 1909. Louis and Scheer became close friends; they hunted, fished, and played cards together. Scheer was a frequent visitor at plaintiff's home.
Plaintiff and her husband, C. B. Miller, separated in 1916. Her income was $10 a week from her son Louis and around $100 a month from Mr. Miller, with which she paid $40 a month rent, clothed herself, fed herself and her son, and paid other living expenses. She owned no stocks or bonds and had no bank account.
Plaintiff testified that Scheer told her in January, 1935, he was having trouble with the Hunter avenue property and needed several hundred dollars to refinance it, and that she endorsed over to Scheer a check for $221, dated February 27, 1935, from the Metropolitan Life Insurance Company, being the cash surrender value of a life insurance policy. Scheer testified that he may have endorsed and cashed the check at the bank for plaintiff, but that he never received any of the money.
In April, 1935, plaintiff told Scheer her husband had instituted a divorce suit in Houston, Texas. Scheer advised her to go to Texas, secure an attorney, and protect her rights. She did so, as developed infra, making two trips, and was awarded the divorce on her cross-bill on July 9, 1935. She received a property settlement of $2,000, payable $300 cash and $1,700 in monthly installments of $75.
Plaintiff testified, respecting her pleaded contract, that about April, 1935, Scheer told her he needed help to refinance his Natural Bridge and Carrie avenue properties; that he talked of improving the properties for income purposes, converting and adding apartments and rooms to rent; that he needed some one to sign the papers and a little money for refinancing; that "if I could get enough money to refinance it properly he could save" the properties; that it was not satisfactory for her to execute the papers on account of her divorce proceedings; that they had further conversations in which her son, Louis Miller, participated and it was agreed that if Scheer could refinance and save the properties, Louis would sign the necessary papers, she and Scheer would work together and take care of, manage, and operate the properties, he stating it would be hard work but might be done, and he would see that she received a half interest in the Natural Bridge and Carrie avenue properties. Scheer also suggested marriage with plaintiff at that time.
Plaintiff testified she obtained $300 from her grandfather Louis K. Smith, of Hannibal, to go to Texas, where she secured a lawyer and returned with approximately $200, which she gave to Scheer. Scheer testified plaintiff told him she received a $100 check from her grandfather; that he advanced her money to go to Texas and drove her and her son to Texas on one of the trips; and that she did not give him $200.
Scheer testified that he had no conversation with plaintiff and her son, or either of them, wherein he agreed to give plaintiff a one-half interest in the Natural Bridge and Carrie avenue properties if she would assist him in refinancing, managing and operating them; and that he did not agree to give her this interest in consideration of marriage. He testified plaintiff did not have money to lend.
Scheer testified that as a result of the business depression of the early 1930s, they decided to liquidate the Corporation Loan and Investment Company, and the license fee for 1934 was not paid. It held real estate and loans secured by deeds of trust. The liquidation, accomplished in 1935, resulted in holdings approximating $17,000 for Scheer's family, of which May Coghlan and V. Gerleman were entitled to $4,800 and $2,700, respectively. He settled a judgment of $8,379 against the corporation and himself for $6,700.
The Grant National Bank was in receivership. Scheer was called upon to pay an additional $13,000 to $16,000, which, he testified, he could have paid but he intended to avoid paying if possible. He was sued and his lock box, with some collateral in it, was held. He made no defense and judgment was rendered against him. The bank finally paid out within 1½% and he settled his obligation with the receiver for $200 about 1940.
Scheer testified he was not in need of credit to handle the Natural Bridge and Carrie avenue properties in 1935, and his need of funds was not such that $200 or $300 would be of material aid. On account of his liability to the bank et cetera, he did not want property in his name. He asked Louis Miller to hold the title as a straw man and Miller agreed to this. Scheer thereupon proceeded to make arrangements with the note holders, or their representatives, to foreclose the deeds of trust and for...
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