Feil v. First Nat. Bank

• Decision Date: 02 March 1925
• Docket Number: No. 15057.,15057.
• Citation: 269 S.W. 936
• Parties: FELL v. FIRST NAT. BANK et al.
• Court: Missouri Court of Appeals

269 S.W. 936

FELL v. FIRST NAT. BANK et al.

No. 15057.

Kansas City Court of Appeals. Missouri.

March 2, 1925.

Appeal from Circuit Court, Jackson County; Arch B. Davis, Judge.

"Not to be officially reported."

Action by Catherine Feil against the First National Bank and others. From a judgment for plaintiff, and against defendant, Charles Lincoln Wells, said Wells appeals. Reversed and remanded.

Kitt & Marshall, of Chillicothe, and Lewis Gillihan, of Gallatin, for appellant.

L. W. Reed, of Breckenridge, and Davis & Ashby, of Chillicothe, for respondent.

ARNOLD, J.

This action originally was brought in Caldwell county, Mo., but on change of venue went to Daviess county, where it was tried to a jury. Judgment was for plaintiff and against defendant Wells, who appeals.

Plaintiff was 81 years of age at the time of the trial (October, 1923) and was very deaf and feeble. She spoke in broken English, and at the trial it was hard for her to understand what was said or to make her self understood. Her husband died several years prior to the happenings which furnish the basis of this suit, and she was living on a small tract of land near Cowgill in Cald county. She had no `children, and her relatives were a brother, who made his home with her, and a brothel and sister living in Ohio. Mrs. Feil and her husband emigrated from Ohio to Missouri about 1860, and settled on a farm in the northern part of Ray county. They brought with them the Charles Lincoln Wells, then a child about 4 years old. He lived with them as one of the family, being clothed, fed, and sent to school, and in return he worked on farm as a member of the family until he about 21 years of age, after which he continued to live with them, but received for his work. At the age of 24, Wells married and moved to himself, but remained on friendly terms with the Fells until a short time before the events leading to suit. He was not related to the Fells, nor was he adopted by them.

At the time of the occurrences out of which this controversy arose, and for some time thereto, Wells was vice president and a director of the First National Bank of Cowgill, defendant herein, and plaintiff own ed 15 shares of the capital stock of said bank, evidenced by certain certificates of ownership which she kept in a metal box at bank, together with other valuable pabpers. Wells was at the bank frequently, sometimes performing the work of the cashier or other employee, and had access to the books and the vault. After the death of plaintiff's husband, Wells assisted her in administering the estate, aided her in the purchase of the small farm where she was to live, in building a house thereon, and generally assisted her in the management of her affairs as occasion arose.

On October 28, 1916, plaintiff made a will which she bequeathed $1,000 to her brother who had been living with her for years; $1,000 to her sister Margaret; $1,000 to her brother William ; $500 to her nephew August ; $500 to her niece Rose; $1,000 to a Mrs. Bowers, and to Joe Bennett $500, making a total of $5,500; and the remainder of her property she left to Wells. This will was placed in her box at the defendant bank, and remained there until it was produced by defendant at a trial between the parties hereto relative to a deed to her real estate, which time it was destroyed by plaintiff on witness stand.

The testimony of defendant Wells shows that on August 9, 1920, plaintiff executed a in which she devised her real estate to retaining for herself for life the income therefrom, and on the same date she transferred her bank stock to him, the certificates therefor in her name being canceled and new stock issued in the name of Wells. At the same time plaintiff reserved the income, or dividends from the bank stock, for herself during her lifetime.

Soon after the execution of said alleged deed, defendant Wells, with his family, moved from his own house in Cowgill to plaitiff's house. This arrangement lasted for a period of about three months, about which time, plaintiff states, she ascertained Wells was claiming her property, including the stock. Thereupon Wells left her premises, and the relations between the two families thereafter were somewhat strained. On the same date that the above transfers were made, but later in the day, plaintiff executed a deed conveying to her brother, Adam Bender, a house and lot in Cowgill, the same having been the property of the said Bender, but received but held in plaintiff's name for personal reasons.

As shown by plaintiff's evidence, upon the discovery of the situation relative to her this property, plaintiff executed a quitclaim deed, dated May 6, 1921, conveying to George A. Bender, William Bender, and Joseph Bennett the real estate which she had conveyed on August 9, 1920, to Wells. And in said quitclaim deed she also assigned to the Benders and Bennett the bank stock involved herein, which defendant Wells declares plaintiff had transferred to him on August 9, 1920. This quitclaim deed recites that theretofore, and on August 9, 1920, plaintiff had made and executed a deed to Wells for the real estate described therein, and also had transferred to Wells the bank stock now involved in this suit ; but that she had made such transfer to Wells under false representations made to her by said Wells; that she had been deceived by said false representations and led to make such transfers in the belief that she was signing a contract giving Wells authority to look after her property ; that part of the consideration for said quitclaim deed was that the grantees should aid plaintiff and join with her in prosecuting suit to set aside the deed and transfer of the bank stock in question. In said quitclaim deed plaintiff reserved a life estate in all property therein conveyed.

Thereafter, on June 15, 1921, the Benders and Bennett, grantees in said deed, executed to plaintiff a bill of sale, retransferring said bank stock to her. The evidence shows that at the time of the execution of the said bill of sale, and prior thereto, the bank stock had not been in the possession of the Bendat ers and Bennett. The stock had been reissued in the name of Wells, and he states he had paid the dividends arising therefrom to plaintiff in accordance with their agreement ; that plaintiff had admitted in conversation that she had transferred the bank stock to him, but that she had changed her mind and wanted it returned. This conversation is denied by plaintiff.

This suit, instituted May 9, 1920, is concerned only with the bank stock. The petition is in two counts, the first in replevin for the three certificates of stock ; the second in conversion, seeking damages therefor. Defendant Wells filed a demurrer to the `petition, which was overruled by the court, in which he charged (a) defect of parties defendant ; (b) misjoinder of causes of action; (c) that the cause of action set out in the first count and the remedy sought therein cannot be united with the causes of action set out in the second, and the remedy sought therein ; .(d) that the petition does not state facts sufficient to constitute a cause of action; (e) that the remedies sought in the two counts cannot be united in the same petition ; (f) that there is a misjoinder of parties defendant ; and(g) that there is a misjoinder of actions and remedies sought. Defendant also filed, and the court overruled, a motion to require plaintiff to elect on which cause of action she would go to trial. A motion to make the petition more definite and certain also was filed and overruled by the court.

The answer of defendant Wells, being the one upon which said suit was tried, was a general denial, and an allegation that plaintiff voluntarily gave him the bank stock described in the petition, and that he is the owner thereof ; that plaintiff sold, assigned, transferred and set over to Geo. A. Bender, William Bender, and Joseph Bennett, all her right, title, and interest in and to said bank stock, together with her causes and rights of action relative thereto, and that plaintiff is without right to maintain this suit ; that by reason of said alleged transfer, Geo. A. Bender, William Bender, and Joseph Bennett, transferees, are necessary parties plaintiff herein. The reply is a general denial, and also a specific denial that plaintiff voluntarily gave Wells the personal property in suit, and alleges that at the time this suit was filed plaintiff was the absolute owner of said property and entitled to possession thereof.

As stated above the verdict was for plaintiff and against defendant Wells on the second count of the petition. Motions for new trial and in arrest were overruled, and Wells appeals.

Appellant charges, first, that the court erred in overruling his demurrer to the petition and his motion to require plaintiff to elect upon which cause of action she would proceed to trial. In support of these charges it is argued that replevin and conversion are inconsistent remedies and may not properly be joined in the same petition. Replevin has been defined as "a form of action which lies to regain possession of personal chattels which have been taken from plaintiff unlawfully." Bouv. Law Dict. vol. 3, p. 2890. Conversion at law is defined as "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights. Stickney v. Munroe, 44 Me. 197; Gilman v. Hill, 36 N. H. 311; Aschermann v. Brewing Co., 45 Wis. 262." 1 Bouv. Law Dict. p. 669. "A constructive conversion takes place when a person does such acts in reference to the goods or personal chattels of another as amount, in view of the law, to appropriation of the property to himself. A direct conversion takes place when a person actually appropriates the property of another to his own beneficial use and enjoyment, or to that of a third person, or destroys it, or alters...