Anderson v. Stacker

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Anderson v. Stacker, 317 S.W.2d 417 (Mo. 1958)
• Decision Date: 10 November 1958
• Docket Number: No. 2,No. 46580,46580,2
• Parties: Kenneth D. ANDERSON, Respondent, v. Bertha STACKER a/k/a Bertha E. Anderson, Appellant

Page 417

317 S.W.2d 417

Kenneth D. ANDERSON, Respondent, v. Bertha STACKER a/k/a Bertha E. Anderson, Appellant.

No. 46580.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1958.

James A. Bell, St. Louis, for appellant.

Cecil Block, St. Louis, for respondent.

BARRETT, Commissioner.

The origin of this cause was that on November 21, 1956, Kenneth D. Anderson instituted an action against Bertha Stacker 'a/k/a' (meaning, presumably, 'also known as') Bertha E. Anderson. He denominated nominated his action a 'Suit In Partition.' In his petition he alleged that 'plaintiff and defendant were contemplating marriage, but never did marry,' but, in the course of their engagement, plaintiff acquired the property known as 4762 Northland Avenue 'and in contemplation of said marriage, caused title to said property to be vested in the name of Kenneth B. Anderson and Bertha E. Anderson, his wife.' He alleged that the cost of the property was $9,500, that he paid $1,000 down, 'and he and the defendant' executed first and second deeds of trust and notes in the sums of $5,950 and $2,550 for the balance of the purchase price. The plaintiff then alleged that he paid with his own funds the sole consideration 'for the acquiring of said property,' made all payments of taxes and notes secured by the deeds of trust from his own funds, and that the defendant contributed 'no part of any of the payments, or to any of the indebtedness against the said property' and that by reason thereof plaintiff 'claims and is entitled to the sole interest to the property.' He stated, however, 'by reason of the fact that plaintiff (he) caused the title of said property to be vested in her name,' that she claimed an interest in the property. His prayer for relief was that the court determine and decree the right, title and interest of each of the parties to the property, decree him to be 'the sole and only owner,' and award such other relief as might be appropriate to the circumstances.

To this petition the defendant, Bertha Stacker, filed an 'Answer And Counterclaim.' In her answer she admitted that they contemplated but were never in fact married, and she admitted the purchase of the property and the fact of the transfer of the title to them as husband and wife. She denied, however, all the other allegations in his petition. For her cause of action against the plaintiff, presumably as a counterclaim, she called the second part of her pleading 'Defendant's Suit In Partition.' In that part of her pleading she alleged that she was single and that on August 1, 1942, the plaintiff 'wilfully and deceitfully represented to this defendant herein that said plaintiff would marry said defendant and purchase her a home,' and thereby induced the defendant to leave her home, come to St. Louis, and 'purchase certain real and personal property in the name of Bertha E. Anderson, to conform to her expected married name,' and she, believing and relying upon his false representations, entered into a contract to and did purchase property, including 4762 Northland Avenue, and accepted a warranty deed conveying the property to 'Kenneth B. Anderson and Bertha E. Anderson, his wife.' She alleged that 'the plaintiff and defendant jointly occupied said premises until about September 1952.' She then alleged that the plaintiff refused to marry her and that but for his false representations she would not have left her former home, advanced part of the purchase money, signed the notes and deeds of trust, paid monthly installments, or have occupied the premises, or have made repairs and improvements on the property. She alleged that the conveyance to them created a tenancy in common, that each claimed a one half interest in the property, and that it could not be divided in kind. Her prayer for relief was that the court enter an order 'declaring the right, title and interest of the parties herein, respectively; and for an order of partition and for contribution from the plaintiff, to the real estate.'

There was no reply or other responsive pleading to the answer and counterclaim, or to any other pleading for that matter. But, at the conclusion of Kenneth's testimony, there appears in the transcript the statement: 'By Leave, pltf. amends petition as per memo. filed. * * * Deft. by Atty. lodges with Clerk Count II Damages to Counterclaim. Hearing of cause resumed and progressed, concluded and submitted.' The 'memo' filed by the plaintiff amended his petition by striking out the title, 'Suit in Partition,' and inserting in lieu thereof 'Suit to Quiet Title.' Bertha's Count II to her counterclaim was a claim for $10,000 damages for Kenneth's breach of his promise to marry her. When this latter document was tendered the court said, 'I'll take it with the case, gentlemen.'

In the course of Bertha's testimony the court refused to hear evidence tending to support her claim of Kenneth's breach of promise of marriage. And, incidentally, the notes concerning the second deed of trust were referred to, but neither the deed by which the property was conveyed, nor the deeds of trust and notes, were offered in evidence and there was no prayer for the reformation or cancellation of them and the court's decree does not purport to deal with them in any manner. At the conclusion of Bertha's testimony, there were but two witnesses, Kenneth and Bertha, the court said, 'I'll take the case as heard and submitted, gentlemen.' The court entered a decree in favor of the plaintiff, Kenneth, 'for the property mentioned and described in the petition, and doth further find that the defendant has no right, title or interest in said real estate,' and, accordingly, the court quieted the title to the property in the plaintiff. In its decree and judgment the court dismissed Bertha's counterclaim and suit in partition, and, in addition, as to Count II of her counterclaim for damages for breach of promise to marry, the court decreed that it be 'stricken from the files without prejudice.'

Bertha has appealed from the judgment and decree and urges that the court was in error in all respects in thus disposing of the entire cause. Unfortunately and unhappily for all concerned, the respondent has not filed a brief in this court. Some of Bertha's complaints, however have but little to do with the essential merits of the appeal. One of her complaints is of the court's failure to 'prepare and file a brief opinion containing a statement of the grounds for its decision * * * and may, or if specifically requested by counsel, shall, include its findings on any of the principal controverted fact issues.' V.A.M.S. Sec. 510.310, subd. 2. But it does not appear in the transcript that Bertha's counsel, or any one else, asked the court to make a finding of fact; furthermore, this court-tried case must be considered anew in this court 'upon both the law and the evidence as in suits of an equitable nature' (V.A.M.S. Sec. 510.310, subd. 4), and in that circumstance the court's failure to make a finding of fact would not constitute reversible error. Beyer v. Schlenker, Mo., 181 S.W. 69; McBride v. Mercantile-Commerce Bank & Trust Co., 330 Mo. 259, 48 S.W.2d 922. As stated, the deed was not reformed and there was no finding or decree as to the notes and deeds of trust (Collins v. Shive, Mo., 261 S.W.2d 58), but, as indicated from the summary of the pleadings and as will appear from the proof and the essential issues involved, the pleadings stated and the parties submitted to the court a controversy to which the quiet title statute (V.A.M.S. Sec. 527.150)...