Feil v. Wells

• Decision Date: 19 January 1925
• Docket Number: No. 15049.,15049.
• Citation: 268 S.W. 893
• Parties: FEIL v. WELLS.
• Court: Missouri Court of Appeals

268 S.W. 893

FEIL v. WELLS.

No. 15049.

Kansas City Court of Appeals. Missouri.

January 19, 1925.

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

"Not to be officially published."

Action in replevin by Catherine Fell against Charles Lincoln Wells. Judgment for plaintiff, and defendant appeals. Affirmed.

Kitt & Marshall, a Chillicothe, for appellant.

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

BLAND, J.

This is a suit to replevy three $100 Liberty Bonds. There was a verdict in favor of plaintiff, and defendant has appealed.

The facts show that plaintiff is an aged and illiterate woman with little business experience. Defendant is a man 63 years of age. When of the age of 4 defendant went to live with plaintiff and her husband. He was reared by them and remained in their home until his marriage in 1885 when he established a home of his own. The relationship between plaintiff and defendant has always remained very close until this controversy arose.

Plaintiff testified to the effect that defendant attended to all of her business affairs that she was unable from lack Of experience to look after. In the spring of 1918 defendant recommended to plaintiff that she buy some Liberty Bonds and she told him to tell the cashier of the bank to order the bonds for her. In this way plaintiff purchased three $100 bonds. When the bonds arrived they were delivered to her. These bonds were not registered, but were coupon bonds, transferable by delivery. As the coupons became due, defendant would go to plaintiff's house and secure them and collect the money represented by them. Finally, in the fall of 1920, the government called in these bonds and issued in their stead long-term bonds due in 1938. Defendant explained to plaintiff that she would have to send in her bonds and have the long-time certificates issued for them. Plaintiff thereupon gave the bonds to him and he had the new bonds issued. These bonds were in the hands of the cashier when defendant went again to talk to plaintiff in regard to having the bonds registered. Defendant testified that it was a hard matter to get plaintiff to understand the transaction, and that she finally told him that the "bonds are yours and you have them registered in your name. All I want is the interest off of them." That thereupon defendant procured the bonds from the cashier and had them registered in his name and retained the bonds and had them in his possession at the time of the trial. Plaintiff denied that she had given defendant the bonds.

Defendant insists that his instruction in the nature of a demurrer to the evidence should have been given, and in this connection singles out a statement of plaintiff which he argues shows that plaintiff admitted that she gave the bonds to defendant. Plaintiff has a peculiar manner of expressing herself and it is difficult to understand the purport of some of her testimony. However, at least in one place in her testimony, she testified directly that she did not give the defendant the bonds. She explained that she kept at her house papers that she understood and left the others with the defendant. She testified that she gave the defendant the bonds (evidently meaning the first or coupon bonds) wrapped up in a paper. Then follows the testimony that is relied upon by the defendant:

"Q. Did you give these bonds to Charlie [the defendant]? A. Well, I didn't give all of them to Charlie because I thought I needed them. I was older than he was and I thought that most of the things I ought to keep at home."

Just exactly what she meant by this testimony it is difficult, if not impossible, to say. However, there is some testimony on the part of defendant, hereinafter mentioned, that seems to be as strong an admission that the bonds did not belong to him as this testimony on the part of plaintiff possibly may show that they did. Plaintiff put upon the stand Dr. Parrish, who testified that defendant, prior to the trial and after suit was brought, told him that he had $300 in bonds that belonged to plaintiff, and that he would be glad to put them up with two or three reliable men who would spend the money for plaintiff's support; that he was afraid that if he gave the bonds to plaintiff that she would not get the benefit of them. The witness Bennett testified that defendant told him that if the case was withdrawn, he would turn the bonds over to plaintiff or put them in the bank so she could get "it" (that is, as we understand the testimony, the bonds or the money). That if he placed the money to her credit in the bank her lawyers would get half of it; that he was fighting the suit for this reason.

Defendant admitted that he told Dr. Parrish that he wanted to put the money in the bank or in the hands of some responsible parties as he desired that plaintiff get "one hundred cents on the dollar." He testified that he told Dr. Parrish that if he turned the bonds over to plaintiff she would only get one-half of their value; that the lawyers would get 50 per cent. He also admitted that he made similar statements to Bennett and asked him to see "them" and "try to get them to withdraw the suit so I could put the money up." He testified that he further said to Bennett "that there was more of the property that I have of hers that would be turned over to her at any time she needed it if I was guaranteed that she would get the benefit of it." If this was not an admission that the bonds belonged to plaintiff, it came very near being so. It is conceded that we are required to take all the testimony, and every reasonable inference that may be drawn therefrom, in favor of plaintiff in passing upon a demurrer to the evidence, and we think that there is no question, but that whether or not plaintiff gave defendant the bonds was for the jury.

It is insisted that the petition describes the first or coupon bonds and not the registered bonds, and, under the rule that to maintain a replevin suit plaintiff must show ownership or title, either general or special, together with the right to the immediate and exclusive possession of the property sought to be replevied, defendant's demurrer to the evidence should have been sustained, as the evidence shows that at the time suit was brought the coupon bonds were nonexistent.

The petition does not describe the bonds as coupon bonds, but merely as Liberty Bonds issued by the United States government bearing 4½ per cent. interest, and alleges that plaintiff was unable to more particularly describe the bonds because they were now in the possession of the defendant. The evidence shows that the coupon bonds bore 4¼ per cent. Defendant is in error in construing the petition as asking for the coupon bonds rather than the second bonds.

It is insisted that plaintiff did not show' title to the registered bonds such as was sufficient to permit her to maintain an action in replevin; that she may have had an equitable title but not the legal title, as the bonds were registered in defendant's name. There is no merit in this contention. If the bonds belonged to plaintiff, the act of defendant in wrongfully having them registered in his name without her consent would not deprive her of the title. The law will not permit a willful wrongdoer to take advantage of his own wrong, and he can never acquire a title, however great the change wrought in the original article may be. Gray v. Parker, 38 Mo. 160; Stotts v. Brookfield, 55 Ark. 307, 18 S. W. 179; Silsbury & Calkins v. McCoon & Sherman, 3 N. Y. 379, 53 Am. Dec. 307; Davis v. Easley, 13 Ill. 192.

Where, in replevin, defendant claims under a bill of sale or other conveyance, plaintiff is not required to go into court of equity to have the conveyance declared void, but may show its invalidity in the replevin suit. Poplin v. Brown, 200 Mo. App. 255, 205 S. W. 411; Lacquement v. Bellamy (Mo. App.) 253 S. W....