Davis v. Broughton

Decision Date20 July 1963
Docket NumberNo. 8182,8182
Citation369 S.W.2d 857
PartiesRaymond A. DAVIS, Appellant, v. Viola Mae Davis BROUGHTON, Respondent.
CourtMissouri Court of Appeals

J. W. Grossenheider, Lebanon, for appellant.

Neale, Newman, Bradshaw, Freeman & Neale, Paul L. Bradshaw, Springfield, for respondent.

STONE, Judge.

On August 3, 1961, Raymond A. Davis, as plaintiff, instituted an action (hereinafter referred to as Case No. 6095) in the Circuit Court of Pulaski County, Missouri, against his former wife, Viola Mae Davis Broughton, as defendant, by the filing of his petition in which he alleged that (for reasons hereinafter detailed) he was 'entitled to a 50% undivided interest' in certain described real estate in St. Robert, Missouri, (hereinafter referred to as the tract), of which Viola Mae was the record owner. The prayer of Raymond's petition was for an 'order' (a) 'granting to him an equitable lien setting forth his interest in (the tract) as a 50% undivided interest,' (b) directing Viola Mae to pay the balance of the note secured by deed of trust on the tract, and (c) foreclosing Raymond's equitable lien. In due time, Viola Mae filed in Case No. 6095(a) an answer denying Raymond's right to any such order or relief and (b) a counterclaim for $697.80, as one-half of the balance on April 4, 1960 (when Raymond had sued Viola Mae for divorce) in a joint bank account maintained by the parties in the Waynesville Security Bank of Waynesville, Missouri (hereinafter referred to as the bank).

On September 14, 1961, Viola Mae, as plaintiff, countered with an action of ejectment (hereinafter referred to as Case No. 6148) against Raymond, as defendant. V.A.M.R. Rule 89; V.A.M.S. Chapter 524. In her petition, Viola Mae alleged her ownership of the tract, averred that on or about March 26, 1960, she had entered into 'an oral lease agreement' with Raymond whereby he had obligated himself to pay '$20 per week for rent' of the dwelling house on the tract, and asserted that he had paid only $525 under the lease agreement and then owed '$950 for unpaid rent.' The prayer was for possession of the dwelling house and for the unpaid rent. Having been consolidated and thereafter transferred, by agreement of counsel, to the Circuit Court of Phelps County, Cases Nos. 6095 and 6148 were tried on March 8, 1962, and taken under advisement.

On July 31, 1962, judgment was rendered (a) in Case No. 6095 finding that the evidence was insufficient to establish plaintiff Raymond's claim to an equitable lien and therefore dismissing his petition, (b) in Case No. 6095 finding the issues for plaintiff Raymond and against defendant Viola Mae on her counterclaim, (c) in Case No. 6148 finding that plaintiff Viola Mae was entitled to possession of the tract and directing restitution of possession to her, (d) in Case No. 6148 finding that there was 'insufficient evidence to support a lease or rental agreement between the parties as to the dwelling house' on the tract and 'no evidence as to the fair rental value thereof' and therefore denying plaintiff Viola Mae's claim for rent, (e) in Case No. 6148 finding that plaintiff Viola Mae nevertheless was 'entitled to recover nominal damages' from defendant Raymond for his occupany of the dwelling house, 'which damages the court (fixed) at the sum of $25 per month from and after September 14, 1961, the date plaintiff filed her petition for possession,' and (f) taxing two-thirds of the costs in the consolidated cases against Raymond and one-third thereof against Viola Mae. Raymond has perfected this appeal from the adverse rulings detailed in (a), (c) and (e), supra. Since Viola Mae has not appealed the rulings detailed in (b) and (d), supra, stand unassailed and accepted. Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557, 559(1); Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 251.

Raymond and Viola Mae first married on December 17, 1938, when he was twenty-one and she was seventeen. Raymond farmed and was employed in construction work until he went into the Marine Corps during World War II. After his discharge from service in December 1945, he became a barber. On June 29, 1953, while Raymond thus was employed at Fort Leonard Wood, he and Viola Mae purchased the tract in the nearby community of St. Robert for $1,500 and took title thereto in their joint names. On June 30, 1954, Viola Mae was granted a decree of divorce, alimony of $30 per week, and child support of $60 per week for the two children born of the marriage. Of course, the legal effect of the decree was to dissolve the tenancy by the entirety in the tract, so that thereafter the parties were tenants in common, each owning an undivided one-half interest in the tract. Hahn v. Hahn, Mo., 297 S.W.2d 559, 566(10); Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724, 726(2); Hiatt v. Hiatt, Mo., 168 S.W.2d 1087, 1089(6).

More than three months after the divorce, to wit, on October 8, 1954, Raymond by warranty deed conveyed his interest in the tract to Viola Mae. She testified, without objection or contradiction, that this was done 'as a part of the property settlement of that first divorce'; but, whatever may have motivated the conveyance, there has been and is no attack upon its integrity. Granting to such conveyance, as in these circumstances we should, the full effect affixed to it by law [Pfeiffer v. Pfeiffer, Mo., 355 S.W.2d 934, 939(2); Ferguson v. Stokes, Mo., 269 S.W.2d 655, 660], Viola Mae thereby became sole owner of the tract. There was no change in the record title of the tract at any time thereafter.

'A month or so' prior to December 17, 1955 (the anniversary of their first marriage), Raymond and Viola Mae agreed to remarry on that anniversary date; and about the same time they decided to enlarge the dwelling house on the tract and, for that purpose, borrowed $3,500 from the bank on December 2, 1955, with the indebtedness evidenced by a note signed by both and secured by a deed of trust on the tract executed by Viola Mae only. The parties thereafter remarried on the appointed date and during their subsequent married life resided, with the children born of their first marriage, in the dwelling house on the tract. Primarily to purchase furniture, an additional sum was borrowed from the bank on July 28, 1956. This and all other bank loans obtained during the period of the second marriage were evidenced by notes signed by both spouses and were secured by deeds of trust on the tract likewise executed by both.

On June 26, 1957, a small portion of the tract was sold for $2,250 and the proceeds of this sale, with $219.60 added thereto, paid the then balance of the bank loan. The remaining major portion of the tract (to which we continue to refer simply as the tract) thereafter was unencumbered until March 10, 1958, when the parties borrowed $6,857.69 from the bank for the purpose of erecting on the tract a building in which to operate a shoe store. To stock the store, additional funds were borrowed on April 18, 1958, increasing the bank loan to $11,735.20. A fire on December 12, 1959, 'entirely destroyed the stock * * * and partially ruined the building.' From $16,000 received under a fire insurance policy issued to and in the name of Viola Mae alone, as the sole owner of the insured property, the then balance of the bank loan, to wit, the sum of $6,101.12, was paid on January 21, 1960, so the tract again became unemcumbered and thereafter remained clear until the second marital venture of the parties was terminated by decree of divorce granted to Raymond on April 16, 1960. Some two months later, to wit, on June 22 1960, Viola Mae borrowed $5,754.16 from the bank to repair the building and to reopen the shoe store; and, on April 7, 1961, she increased her bank loan to $9,763.20, of which $8,136.00 remained unpaid when the case was tried on March 8, 1962. These loans subsequent to the second divorce were evidenced by notes signed only by Viola Mae and were secured by deeds of trust on the tract likewise executed only by her.

Raymond pleaded two reasons why (in his view of the matter) he was entitled to an undivided one-half interest in the tract and to an equitable lien therefor, namely, (1) because (so he averred) he had repaid the bank loans, the proceeds of which had been used to enlarge the dwelling house and to erect the building on the tract, and (2) because of an alleged agreement between himself and Viola Mae shortly prior to the second divorce on April 16, 1960.

Of Raymond's claim of repayment of bank loans. When Raymond and Viola Mae remarried on December 17, 1955, she had in her individual name a checking account in the bank with a then balance of $2,689.54; but, although Raymond had annual earnings (so he said) of $10,000 to $12,000 per year, he had no bank account. On March 13, 1956, by which date the balance in her checking account had been reduced to $438.25, Viola Mae converted that account into a statutory joint account in the names of herself and Raymond (hereinafter referred to as the joint account). See V.A.M.S. Sec. 362.470. Thereafter, both parties made deposits in the joint account, and all payments on the bank loans were made from that account.

During the period of the second marriage (i. e., from December 17, 1955, to April 16, 1960), Viola Mae received monies from several sources in a substantial aggregate sum, all of which was, so she testified without contradiction, deposited in the joint account, to wit, (a) from sale of a small portion of the tract on June 26, 1957, the sum of $2,250 which admittedly was paid on the then outstanding bank loan, (b) from rental of a cabin on the tract, $45 per month during the first year of the second marriage and $40 per month thereafter, or approximately $2,140 in the aggregate, and (c) from parttime employment by 'the liquor association in St. Robert' for 'a little over a year,' $50 to $60 per month or not less than $600 in the aggregate. Thus, in addition to the $438.25 in...

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