Chilton v. Chilton

• Decision Date: 09 June 1927
• Docket Number: No. 4174.,4174.
• Citation: 297 S.W. 457
• Parties: CHILTON v. CHILTON
• Court: Missouri Court of Appeals

297 S.W. 457

CHILTON v. CHILTON

No. 4174.

Springfield Court of Appeals, Missouri.

June 9, 1927.

Rehearing Denied August 16, 1927.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Laura Chilton against J. W. Chilton. From the judgment, plaintiff appeals. Reversed and remanded.

Schmook & Sturgis, of Springfield, and O. L. Munger, of Piedmont, for appellant.

Frank B. Williams, of Springfield, and C. M. Buford, of Ellington, and S. A. Cunningham, of Eminence, for respondent.

COX, P. J.

This is an action by plaintiff to recover from defendant the balance alleged to be due on the purchase price of real estate which it is alleged defendant collected and has refused to pay to plaintiff.

The defense Is that the money or notes received by defendant were not the property of plaintiff, but in fact belonged to J. A. Chilton, the former husband of plaintiff, and also that by direction of plaintiff he had delivered the proceeds of the sale to said J. A. Chilton. There was also a plea of estoppel.

At the trial plaintiff demanded a trial by jury and this was refused. The case was then tried by the court as a chancellor on the ground that the action was an equitable one and not triable by a jury as a law action. That is the main question involved in this appeal.

Whether this is a law action in which the plaintiff had the right of trial by jury is to be determined by the pleadings which disclose the issues to be tried and the character of relief to be afforded. The petition alleges, in substance, that on and prior to July 13, 1923, she was the owner of certain real estate, describing it, and certain store fixtures in a building located thereon. That it was agreed between the plaintiff and defendant that plaintiff should convey said land to defendant, and that he should assist her in selling the land and store fixtures. That in pursuance to that agreement she did convey the land to defendant. That defendant thereafter sold said land and store fixtures for the price and sum of $5,500. That the real estate was incumbered for $2,000. That the purchaser gave two notes, one for $3,000, and another for $2,500, both payable to the Farmers' & Merchants' Bank of Springfield. That the bank bought the $3,000 note at its face value, and with that money the incumbrance of $2,-000 on the real estate was paid and the balance of that note accounted for to plaintiff. That part of the $2,500 note has been paid to the bank and by direction of defendant these payments were turned over to J. A. Chilton, who is insolvent and a nonresident of the state. Also, that the note of $2,500 was by direction of defendant transferred by the bank to J. A. Chilton and none of it has been paid to plaintiff. The answer is very long and pleads a great many facts that are, in our opinion, evidence, merely, but when condensed, the ultimate facts pleaded as a defense are, in substance, as follows: That the plaintiff and J. A. Chilton were husband and wife when the deeds were made and the property sold. That the property belonged to J. A. Chilton. That said J. A. Chilton was a brother of defendant and lived on the real estate involved. That his health failed and he was compelled to move to another state. That he did so remove for the purpose of trying to restore his health, and that his wife, the plaintiff in this case, together with their children, remained at the home in Missouri. That said J. A. Chilton became desirous of selling the property in Missouri, and, to the end that, in case a sale could be made, a transfer of the title could be quickly made said J. A. Chilton executed a deed to the plaintiff, his wife, and sent it to defendant to hold until a sale was made and not deliver or record it until that time or until his death. In case he should die before a sale was made, the defendant should then deliver the deed to plaintiff, but not until then. That this deed was not in fact delivered to plaintiff. That defendant, in order to assist his brother and his family, consented to assist in trying to sell the property. That plaintiff and defendant agreed that a better price could be procured if the title were transferred to defendant and prospective purchasers given to understand that they were dealing with him. By reason of that fact, plaintiff made a deed to defendant and when the property was sold he made the deed to the purchaser. That he acted without compensation and solely to assist his brother in his efforts to support himself and family. That the plaintiff desired to go to St. Louis and operate a rooming house for the purpose of assisting in the support of herself and children and desired $1,000 for that purpose. That with the consent of his brother, J. A. Chilton, whom defendant alleged was the owner of the property, $1,000 less some taxes and other expense was paid to plaintiff for the purpose suggested. That in his disposition of the proceeds of the sale he acted with the full knowledge and acquiescence of plaintiff and J. A. Chilton and had therefore fully and rightfully discharged his duty in the premises. That plaintiff with full knowledge of the facts made no demand upon the defendant for payment to her of any of the proceeds of the sale, except the $1,000 which she had received until at least one year after defendant had closed the matter and...