Ellis v. Williams

Decision Date14 April 1958
Docket NumberNo. 2,No. 45824,45824,2
Citation312 S.W.2d 97
PartiesOcellous ELLIS, Respondent, v. Joseph R. WILLIAMS et al., Respondents, Harriet Lamb Williams, Intervenor-Appellant
CourtMissouri Supreme Court

Wilson Gray, St. Louis, for intervener-appellant, Harriet Lamb Williams.

David E. Horn, St. Louis, for (plaintiff) respondent Ocellous Ellis.

EAGER, Judge.

This suit was instituted as one in partition between the many heirs of one Reaf F. Williams, deceased. The administrators of deceased were also joined as defendants. The action involves title to a tract of real estate on North Market Street in the City of St. Louis, on which there is an apartment building. We are not primarily concerned here with the partition proceedings as such. Harriet Lamb Williams, the divorced wife of Williams, was permitted to intervene, and she filed her intervening and amended intervening petitions, each in two counts. In the first count she sought to establish a resulting trust in her favor in an undivided half interest in the property and to procure an accounting of rents; this, upon the theory that she and the deceased had bought the property jointly in anticipation of marriage, each furnishing one-half of the down payment, with title to be held jointly, but that he had wrongfully taken title in his name alone. In the second count she sought the assignment of dower in the other undivided one-half interest, she having been adjudged the innocent and injured party in the divorce proceeding. As a dower claimant she was a proper party to the partition. Phelps v. Domville, Mo., 303 S.W.2d 601. The plaintiff and all the defendants in the original proceedings opposed her claims in their entirety. The trial court found against the intervenor on both counts and entered judgment accordingly. It also entered an interlocutory decree in partition, fixing the respective interests of the other parties, and ordering a sale. Generally, the heirs denied the essential allegations of the intervenor, and they alleged affirmatively that she had waived and released her claims to dower. The case in its entirety was tried to the court, although certain issues were primarily legal. See Rowley v. Rowley, Mo., 197 S.W. 152; and Sec. 469.250, concerning suits for the assignment of dower. (All statutory references are to RSMo 1949 and V.A.M.S.)

The evidence here was somewhat sketchy and confusing, due partly to the fact that Reaf Williams was dead, and on many subjects the intervenor was precluded from testifying by Sec. 491.010, but also to the hiatuses caused by a multitude of objections. We do not say this critically. In essence the following facts were fairly shown: Reaf Williams died on May 23, 1953, intestate, and without children. Intervenor, a schoolteacher, had become engaged to marry him, at some undetermined date about 1927, and they were married in July, 1927. Under date of May 18, 1927, the property in question was conveyed to Reaf F. Williams by one Ely Sanders, for a recited consideration of $100 and subject to a deed of trust for $9,000; this warranty deed was recorded on May 24, 1927. We may fairly infer that intervenor's position is that she never saw this deed. Thereafter Reaf Williams and this intervenor, as his wife, executed deeds of trust as follows: a first deed of trust dated January 5, 1928, securing an indebtedness of $7,500; a second deed of trust of the same date securing an indebtedness of $4,844 'borrowed money'; a Home Owners Loan Corporation first deed of trust dated September 12, 1934, securing an indebtedness of $7,701; and a second deed of trust dated September 12, 1934, acknowledged September 26, 1934, securing an indebtedness of $476.37. The intervenor offered in evidence certain of the notes executed by her; some were admitted and some were excluded, but we think the matter immaterial. We may assume that one or more of these deeds of trust replaced the indebtedness existing at the time of the original acquisition. We may also fairly conclude from the record: that all indebtedness against the property was paid and released prior to the death of Reaf Williams; and that he had collected most of the rents, although intervenor had collected rents on certain occasions. There is reference in the record to the foreclosure of the second deed of trust securing an indebtedness of $4,844 (supra); an offer was made of a trustee's deed pursuant thereto and dated February 5, 1930, to Margaret Overmire; also, an offer of a warranty deed from the latter to Olaf Rosenorn and wife. These offers were by reference only and the exhibits are not here; there was also offered a deed from Rosenorn and wife to Reaf F. Williams dated February 8, 1930, and recorded on October 20, 1934. That exhibit is not here. The apparent object of these offers was to show the acquisition by Reaf Williams of an independent and subsequent title, but in the view we take of the case, these exhibits are not material.

For the establishment of a resulting trust intervenor relied upon the evidence now to be related. She had a savings account in the Mercantile Trust Company from November, 1926 to December, 1927; she 'drew' a cashier's check for $500 on May 19, 1927; her savings account showed a $500 withdrawal on May 19, 1927; she later had a saving account in the Easton-Taylor Trust Co., and she and her husband had a joint checking account there from July, 1927 to January, 1929. One witness (Sophronia Gibbs) testified that shortly after the wedding Williams took her to see this property and said that 'him and Harriet had purchased a place' and that each paid half, a total of $1,000; another (James Webb) testified that about 1931 Williams said, with reference to the possible rental of an apartment, that his wife 'was part owner, or owned the building--I disremember * * *'; another (Josephine Banks) testified that at about the time of the wedding Williams said that he and Harriet were buying the place and 'were going 50-50'; another (Albert Keown) testified that about 1942 Williams talked with him about trading houses and said that 'he and his wife owned the house' and that it was a flat; another (Adele Harrell) testified that she became well acquainted with Williams about 1939-1940, at one time was 'engaged' to him, and that about 1940 he stated that 'he and his wife had purchased the property before they were married'; and the last (Frank Clegg, a lawyer) testified that when he sought to get Williams to sign a replevin bond about 1927 or 1928, the latter stated that he and 'Miss Lamb' had purchased the property, and that 'she had a half interest or something * * *.' Strenuous, but unavailing, efforts were made to introduce what appeared to be a photostatic copy of a cashier's check of the Mercantile Trust Company for $500, dated May 19, 1927, and payable to Harriet L. Lamb. Bank officials were produced; one said that he recognized the photograph of the signature of a Mr. Kruse, formerly Assistant Treasurer, whose name purported to be signed thereon, and also recognized the photographs of the clearing house stamps; and one testified that all originals earlier than 1942 had been destroyed. No one testified that he had ever seen the original or that the exhibit was a true copy. It was excluded by the trial court. Intervenor stated, as was obvious, that she did not have the original. There was evidence that the real estate in question was worth from twelve to fourteen thousand dollars. The intervenor procured a divorce from Reaf Williams, for his fault, on January 25, 1945, after filing previous petitions in 1930 and 1938, which apparently were dismissed voluntarily. Intervenor offered in evidence a recorded copy (or duplicate original) of her election to take as 'Substitute Dower,' one-half of the real and personal property belonging to Williams at the time of his death, subject to the payment of his debts; that election was dated and acknowledged on April 15, 1954, and it was filed in the recorder's office on September 11, 1954. This was excluded upon objections made that it was immaterial, that intervenor was not the widow, that it was self-serving, and by reason of 'Section 491.010, the dead man section.' Our rulings concerning the amended intervening petition will also rule a pleading which the intervenor designated as a counterclaim.

It will be impossible to discuss the many points, subpoints, and cited authorities in intervenor-appellant's brief. We shall discuss their substance. First, she complains vigorously of the court's errors in the exclusion of evidence, including some of her own proffered testimony, the supposed photograph of the cashier's check, and her proposed identity of various signatures. The exclusion of evidence in an equity or court-tried case is of little importance where the evidence excluded or its substance appears from the record, for this court may consider all competent evidence. Brooks v. Brooks, 357 Mo. 343, 208 S.W.2d 279, 285, 4 A.L.R.2d 826; Edinger v. Kratzer, Mo., 175 S.W.2d 807, 811; Balding v. Farm & Home Savings & Loan Ass'n, Mo.App., 131 S.W.2d 57; Sec. 510.310. Of intervenor's oral testimony, the parts excluded were wholly immaterial; as concerns her attempted identification of certain exhibits and of signatures on exhibits, all of these, in so far as they may possibly have been material, were received later with the exception of the purported copy of the cashier's check. For the purpose of this appeal, we shall consider the copy of the check as though it had been admitted, although its admissibility was and is doubtful. We shall consider later the intervenor's 'Election To Take Substitute Dower,' which should have been admitted.

Concededly, this property was conveyed to Reaf F. Williams alone, and the title remained in his name until his death. Intervenor's claim under her first count is predicated solely upon the theory of a resulting trust, arising from the asserted fact that she and Williams purchased the...

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