Bovard v. Bovard

• Decision Date: 02 May 1944
• Docket Number: 38780
• Citation: 180 S.W.2d 592,352 Mo. 953
• Parties: James E. Bovard v. Spencer D. Bovard, Appellant
• Court: Missouri Supreme Court

180 S.W.2d 592

352 Mo. 953

James E. Bovard v. Spencer D. Bovard, Appellant

No. 38780

Supreme Court of Missouri

May 2, 1944

Rehearing and Motion to Transfer to Banc Denied June 5, 1944.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

White & Hall for appellant.

(1) Respondent's conveyances being fraudulent, he is not entitled to equitable relief. Leeper v. Kurth, 163 S.W.2d 1031; Jones v. Jefferson, 66 S.W.2d 555; Abernathy v. Hampe, 53 S.W.2d 1090; Keener v Williams, 271 S.W. 489; Creamer v. Bivert, 113 S.W. 1118; McGeehee v. Garringer, 224 S.W. 828; Rowley v. Rowley, 197 S.W. 152; Elliott v. Landis Machine Co., 139 S.W. 356; Stierlin v. Teschemacher, 64 S.W.2d 647. (2) The evidence was insufficient to support the court's decree. Lestofka v. Lestofka, 99 S.W.2d 46; Stubblefield v. Husband, 106 S.W.2d 419. (3) The trial court had no jurisdiction over the real estate. State ex rel. v. Landwehr, 27 S.W.2d 25; State ex rel. v. Mueller, 53 S.W.2d 8; Williams v. Husky, 30 S.W. 425. (4) The judgment of the circuit court at Independence was res adjudicata as to the title to the real estate. Richardson v. Dell, 191 S.W. 63; Barnhart v. Little, 185 S.W. 174; Norman's Land Co. v. Idalia Realty Co., 226 S.W. 43. (5) Defendant's position as co-administrator did not render the transactions void. Dillinger v. Kelley, 84 Mo. 561; Markwell v. Markwell, 57 S.W. 1078; State ex rel. v. Jones, 33 S.W. 23, 131 Mo. 194.

Franklin D. Glore and Walter R. Barnes for respondent.

(1) Since defendant did not make a clear and concise statement of the case without argument, reference to issues of law or repetition of the testimony of witnesses, as required by statute and Rule 15 of this court, this appeal should be dismissed. State ex rel. State Highway Comm. of Mo. v. Shain, 333 Mo. 235, 62 S.W.2d 711; Coolidge v. Strother, 137 S.W.2d 467; Sims v. Hydraulic Press Brick Co., 323 Mo. 447, 19 S.W.2d 294; Shaw v. Fulkerson, 339 Mo. 310, 96 S.W.2d 495; Produce Exchange Bank of K.C. v. Winn, 133 S.W.2d 419; Sec. 1226, R.S. 1939; Rule 15, S.Ct. Rules. (2) Plaintiff on his own evidence is entitled to equitable relief. Ryan v. Ryan, 174 Mo. 279, 73 S.W. 494; In re Mills Estate, 162 S.W.2d 807; Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735; 33 C.J.S. 1246, sec. 240; Horn v. Owens, 171 S.W.2d 585; Leeper v. Kurth, 163 S.W.2d 1031; Smith v. Holdoway Const. Co., 344 Mo. 862, 129 S.W.2d 894; Poston v. Balch, 69 Mo. 115; Merz v. Tower Grove Bank & Trust Co., 130 S.W.2d 611. (3) This court should not review the evidence to see if the chancellor was justified in setting aside the assignment. Whitehead v. Liberty Natl. Bank of K.C., 56 S.W.2d 833; Greer v. Carpenter, 323 Mo. 878, 19 S.W.2d 1046; Campbell v. Campbell, 323 Mo. 1149, 20 S.W.2d 655; Gorman v. Mercantile-Commerce Bank & Trust Co., 345 Mo. 1059, 137 S.W.2d 571. (4) The court did not err in assuming jurisdiction of this case. (5) The suit in the Independence division was not res adjudicata. State ex rel. Green v. Brown, 31 S.W.2d 215. (6) Defendant's fourth assignment of error and Point (5) were not raised in his motion for a new trial and are not before this court for review. Merz v. Tower Grove Bank & Trust Co., 130 S.W.2d 611; Greer v. Carpenter, 19 S.W.2d 1046; State ex rel. v. Jones, 131 Mo. 194, 33 S.W. 23; 65 C.J. 658, sec. 522; Hockenberry v. Cooper County State Bank, 88 S.W.2d 1037.

Westhues, C. Bohling, C., absent; Barrett, C., concurs.

OPINION

PER CURIAM

Respondent filed this suit in the Jackson County Circuit Court to set aside a deed and an assignment purporting to convey respondent's interest in the estate of John H. Bovard, deceased, to the appellant. The grounds relied upon were failure of consideration and fraud. The trial court granted plaintiff the relief prayed for and entered a decree canceling the deed and assignment. An appeal from the judgment was duly taken.

Appellant is a nephew of respondent. John H. Bovard, deceased, from whom respondent inherited the property in controversy, was an uncle of respondent and a great-uncle of the appellant. Respondent, as an heir of John H. Bovard, deceased, was entitled to a one-sixth interest in the estate. The value thereof was conceded to be in excess of $ 10,000.00.

This is a suit in equity and therefore this court reviews the evidence and tries the case de novo. If our finding be at variance with that of the trial court the decree nisi will be set aside. Lynn v. Coates (Mo.), 142 S.W.2d 1014, l.c. 1019 (1); Houts, Missouri Pleading and Practice, vol. 2, p. 525, sec. 538. The reason we mention this is because respondent contended in his brief that appellant had not preserved this question for our review. In the motion for new trial appellant assigned error and asked for a new trial "because the decree of the court should be in favor of the defendant." In the brief an assignment of error reads as follows: "Under the evidence, the trial court was not justified in setting aside the deed and the assignment." The question of the sufficiency of the evidence to support the decree was briefed with citations of authorities. We rule the question was preserved for review.

It will be necessary for an understanding of the case and to properly weigh the evidence to get a background of the parties and their relation to each other. The respondent was over seventy years of age at the time of the trial. He was practically deaf, and we learn from the record that the questions asked him at the trial were reduced to writing. He had had difficulty with his sense of hearing for many years, and for the last five or six years could not carry on a conversation unless, as a number of witnesses testified, the party talking with him shouted. There was a conflict in the evidence on this point, but the overwhelming weight thereof was that for a number of years it had been difficult for him to hear an ordinary conversation. Respondent had never held any position which brought him a substantial remuneration. He was employed in the office of the circuit clerk for four years (1906-1910) as a file clerk at a salary of $ 100.00 per month. That was more money than he made at any period in his life. Respondent performed odd jobs such as painting and repairing for an owner of a number of buildings for which he received small sums and a room. After 1931 he was frequently on what is commonly termed WPA. He also received a small sum monthly as an old age pension. His bank accounts and postal savings were examined and it was disclosed that at no time did he ever have in excess of a few hundred dollars. He had always lived in very poor circumstances. Respondent asserted in his petition that the deed and assignment whereby he transferred to appellant his one-sixth interest in the estate were without consideration. Appellant denied this and offered evidence of consideration. Appellant was in the printing business making a specialty of printing law briefs. He testified that he advanced $ 4,000.00 in cash to respondent to enable him to make a down payment on a hotel respondent was purchasing; that he, appellant, mortgaged his printing plant to obtain the cash. He testified that respondent executed notes and a deed of trust dated October 20, 1936, on the one-sixth interest and delivered them to appellant. These were introduced in evidence. Appellant stated these were canceled in consideration of respondent assigning to him his interest in the estate. Respondent admitted that the signatures on these papers appeared to be in his handwriting as well as the signature appearing on a receipt for $ 4,000.00. His explanation of how his signature was obtained was as follows:

"Q. I don't know whether I have asked this before or not. I will ask it again. Did you received any money whatever for those two $ 2,000 notes? A. No, sir.

"Q. Why did you sign those notes and that deed of trust securing them? A. Because Spencer asked me to.

"The Court: Ask him if he has any explanation for the receipt?

"Q. (Mr. Glore) What is your explanation for signing this receipt? A. I didn't sign it. That is my signature but I didn't sign it. I don't know anything about that contract.

"Q. Did Spencer ask you to sign your name on some new paper he had to try it out? A. Yes, sir.

"Q. Explain. A. Well, he wanted me to sign my name on some paper, he had several sheets there and he says, 'I want to test the quality of the paper.' I didn't think any -- I think I signed, 'J. E. Bovard' and he said, 'Don't sign it like that. Sign it James E. Bovard, like you do down there."

"Q. Did you do it? A. Yes, sir. I didn't think anything about it. It was just paper."

Respondent emphatically denied that appellant ever advanced him any such sum as claimed and that he never considered the purchase of a hotel. The claim of appellant that he mortgaged his printing plant to advance $ 4,000.00 to respondent to purchase a hotel sounds preposterous. Appellant when asked what hotel respondent desired to purchase, said he did not know, and that he took his word for it. If the notes and deed of trust were canceled because of the transfer of the one-sixth interest to appellant, why did appellant retain them in his possession as well as the receipt, and why should a receipt have been given if respondent signed notes and a deed of trust for the money? Aside from all this, the story of appellant mortgaging his property to obtain $ 4,000.00 to advance to respondent for the purchase of a hotel, when the financial situation was indeed uncertain, and while respondent, who had never met with success in the financial world, was on WPA, is simply unbelievable. The trial court did not believe it, and in its finding of facts stated that appellant did not advance respondent any money as claimed. The finding...