Dowd v. Schoening

• Decision Date: 05 March 1955
• Docket Number: No. 7318,7318
• Citation: 276 S.W.2d 478
• Parties: Otis L. DOWD, Respondent, v. A. H. SCHOENING, Defendant, Florence D. Schoening, Third Party Claimant, Appellant.
• Court: Missouri Court of Appeals

Page 478

276 S.W.2d 478

Otis L. DOWD, Respondent, v. A. H. SCHOENING, Defendant, Florence D. Schoening, Third Party Claimant, Appellant.

No. 7318.

Springfield Court of Appeals, Missouri.

March 5, 1955.

Cope & Ponder, Poplar Bluff, for appellant.

Ted M. Henson, Poplar Bluff, for respondent.

RUARK, Judge.

The respondent, Dowd, had judgment against defendant, A. H. Schoening, on a purchase money note. Upon execution under such judgment the sheriff levied upon the property here in question, to-wit, one Farmall tractor with plows, disks and other equipment, and one McCormick hay baler and side delivery rake. Appellant, Florence D. Schoening, wife of the judgment debtor, filed claim as owner of the property so seized under the provisions of Section 513.130, RSMo 1949, V.A.M.S. and related sections.

The Schoenings lived at Paducah, Kentucky. The husband had been a railroad engineer but was retired at time of trial. Appellant held the title to an eighty-acre farm in Butler County, and the family had lived on this farm in the early 30's, after which time it was rented out. In 1949 one Willis and his son were tenants on the farm. On April 25, 1949, respondent Dowd sold somebody the tractor and attendant equipment. At the time of the purchase only Willis and son were present. Dowd testified that Willis told him to an arrangement for the purchase, whereupon he, Dowd, called A. H. Schoening over long distance phone and an agreement was worked out with Schoening whereby the machinery was sold for $1,200, $500 to be paid down and the balance of $700 to be carried back and secured by chattel mortgage. Pursuant to the instructions from and agreement with Schoening, a promissory note in principal amount of $700, payable to the order of Dowd and signed by Willis, his son and A. H. Schoening, was executed. This note was secured by chattel mortgage pledging the equipment so purchased, but such mortgage was signed only by Willis and son. Concurrently therewith the two Willis men gave A. H. Schoening a promissory note in the amount of $500 and to secure the same gave him (Schoening) a chattel mortgage on the tractor and equipment. This mortgage was stated to be subject to the prior mortgage of even date in the amount of $700 which had been given Dowd for the balance of the purchase price. The down payment of $500 was made by Schoening's sending to Dowd his personal check in such amount. Subsequently this check proved to be resilient and rebounded to Dowd, who thereupon wrote Schoening about it. On May 14, 1949, (the record does not show whether Schoening was then at home) a letter was written to Dowd as follows:

'Your letter received, am very sorry for this to happen to you! Especially do we appreciate getting your tractor and equipment. I have checked with my bank at Kevil, Ky. Please send that check for $500.00 in to the Bank of Kevil, Ky. and you will receive the money at once.

'Again I say we sure are sorry this had to happen.

'Yours

'A. H. Schoening

'By Mrs. A. H. Schoening' Presumably Dowd sent the check to the bank as directed and got his down payment money. This letter is the first time that Mrs. Schoening appeared in the transaction, and Dowd testified that until he received such letter he did not even know that Schoening had a wife. After the $700 purchase money note became due, Willis informed Dowd that Schoening 'has kicked us off' the place and stated he could not pay for the tractor. He eventually brought it back to Dowd. On January 20, 1951, A. H. Schoening brought a replevin action against Dowd in magistrate court for this equipment and apparently he was successful. The record does not show how the case reached such court, but on May 22, 1952, plaintiff in that action obtained a judgment for possession in the circuit court. Mrs. Schoening's name did not appear in the replevin suit.' On the same day Dowd filed suit against Schoening for the balance due on the $700 purchase money note. He eventually obtained a judgment, and levy of execution thereunder upon the property was followed by the filing of this claim.

As to the hay baler and rake, appellant testified they were purchased with money which she had obtained by borrowing on her farm; that on August 2, 1951, she and her husband gave a note and deed of trust to the State Bank of Poplar Bluff in the amount of $1,200. The giving of a deed of trust to such bank of such date and amount was admitted. She testified that she was not present when the hay baler and rake were purchased and that all she knew about it was what her husband told her, but that the money to pay for it was obtained by the borrowing on her farm. For one who claimed to have been the principal and who provided the purchase money, she displayed singular lack of knowledge. She first insisted that all of the property, both tractor and baler, was purchased in the year 1951, when a Mr. Robert Gant was tenant on the farm, a fact belied by the admitted instruments in reference to the tractor and equipment, which was purchased in 1949. Later in her testimony she recalled that Mr. Willis was tenant on the farm when the tractor was purchased and said that the gave her husband $500 in cash to make the down payment on the tractor. This was before she was confronted with the letter above quoted. According to her testimony she did not know anything about any lawsuit which her husband had with Mr. Dowd over the tractor and equipment until after it was all over. She claimed to be the owner of all the property; that her husband signed the note as her agent; that 'he had that perfect right' to sign it for her; that he was not supposed to pay it; that she didn't know he had been sued on the note until after it was all over; that she did not owe Mr. Dowd any money on account of the transaction herself. Without going further with the evidence, we may say that the jury could well have concluded that the lady did protest too much, disbelieved her evidence in the entirety and so found its verdict in favor of the judgment creditor, Dowd.

Assigned as error is the action of the court in refusing appellant's instructions TPC-1 and TPC-2 and the giving of the court's own instructions 1C and 2C in lieu thereof. Refused TPC-1 said:

'The court instructs the jury that under the law of Missouri a wife can own property absolute in her own name and it makes no difference how she acquires same, whether by purchase, gift or in any manner in which property may be acquired, and where property is owned by a wife it is not subject or liable for the debts of her husband.

'Therefore, you are instructed that if you believe and find from the evidence in this cause that Florence D. Schoening was the owner of the personal property levied upon by the Sheriff of Butler County, Missouri, to satisfy a debt owed by A. H. Schoening, her husband, and that Florence D. Schoening had not assented in writing conferring upon her husband full authority to sell, encumber, or otherwise dispose of the said personal property levied upon for his own use and benefit, then you are instructed that under the law the said property is the separate property of Florence D. Schoening and is not liable for the debts of her husband, and your verdict will be in favor of Florence D. Schoening.'

TPC-2 was as follows:

'The court instructs the jury that if you find and believe from the evidence in this cause that the personal property described in evidence, or any part thereof, was at the time same was seized and levied upon by the Sheriff of Butler County, Missouri, to satisfy a judgment in favor of plaintiff, Otis L. Dowd, and against the defendant, A. H. Schoening, was and is now the separate property of the Third Party Claimant, Florence D. Schoening, they you are instructed that your verdict shall be in favor of Florence D. Schoening and against the plaintiff, Otis L. Dowd, as to all of said personal property, or so much thereof as you find and believe from the evidence was and is the separate property of the said Florence D. Schoening.

'And you are further instructed that even though you may find and believe from the evidence that all or a part of said property was purchased with money which was given to her by her husband, A. H. Schoening, and that the said A. H. Schoening used, cared for or controlled or traded and sold or encumbered said property, or any part thereof, such fact or facts does not prove that his wife, the said Florence D. Schoening, transferred same to her husband, but the same remained her separate property, unless the jury find that she gave assent in writing to her husband, conferring full authority on him to sell, encumber or otherwise dispose of the same for his own use and benefit; and you are further instructed that there is no evidence in this cause that such written assent was given.'

The court's instructions in lieu were:

'Number 1C

'The court instructs the jury that under the law of this state a wife can own property absolute in her own name and it makes no difference how she acquires same, whether by purchase, gift or in any manner in which property may be acquired, and where property is owned by a wife, it is not subject or liable for the debts of her husband unless she gives consent in writing to him for full authority to sell, encumber or otherwise dispose of same.

'Therefore, if you find and believe from the evidence that Florence D. Schoening purchased and became the owner of the property in question, or any part thereof, and that she furnished the purchase money therefor, from any source whatsoever, and that she acquired the ownership thereof as her own and absolute property, then you will find the issues herein for the Third Party Claimant, Florence D. Schoening, to so much or all of said property as you may find she is the owner of.'

'Number 2C

'You are further instructed that if you find and believe from the evidence that Florence D. Schoening purchased and became the owner of the property in question, or any part...