Ferguson v. Stokes

• Decision Date: 14 June 1954
• Docket Number: No. 43731,No. 1,43731,1
• Citation: 269 S.W.2d 655
• Parties: FERGUSON et al. v. STOKES
• Court: Missouri Supreme Court

Page 655

269 S.W.2d 655

FERGUSON et al. v. STOKES.

No. 43731.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 12, 1954.

Henri Sursa, Fredericktown, Finley, Lucas & Arnold, Ralph T. Finley, St. Louis, for appellants.

Harry Gershenson, St. Louis, Melvin Englehart, Fredericktown, for respondent.

LOZIER, Commissioner.

This is an action to determine title to and declare a resulting trust in real estate. Plaintiffs-appellants (herein called plaintiffs) appealed from a judgment sustaining, at the close of plaintiffs' case, defendant's motion to dismiss the petition and entering judgment and decree 'on the merits in favor of defendant and against plaintiffs.'

Plaintiffs contend that the trial court erred in dismissing their petition and in rejecting certain evidence offered by them. (In their original brief, plaintiffs also contended that 'the judgment is not responsive to the pleadings and evidence' in that it did not recite that title was in defendant and not in plaintiffs. However, in their reply brief, plaintiffs concede that the judgment 'was a final judgment and disposed of all issues, otherwise we could not have appealed.' In view of which--and noting that defendant asked no affirmative relief--we need not rule plaintiffs' contention as to the form of the judgment.)

In their reply brief, plaintiffs argue: 'On appeal, where the question is whether plaintiff made a submissible case, the court will consider only the evidence most favorable to the plaintiff-appellant, and disregard any evidence for the defendant.' However, in an equitable action, the appellate court tries the case de novo.

The real estate is a lot on Newberry Street in Fredericktown upon which a house was built in 1948. By a warranty deed executed December 9, 1946, and recorded May 13, 1948, O. J. Ferguson and his wife, Anna, conveyed the lot to Sidney Stokes and Edna Stokes, his wife, an estate by the entirety. Edna died on April 26, 1951, survived by Sidney, defendant-respondent (herein called defendant) and no descendants. Plaintiffs are Edna's collateral heirs. (In this court, Anna Ferguson, widow of plaintiff O. J. Ferguson, who died after the trial, and executrix and sole devisee and legatee under his will, was substituted as a party plaintiff.)

Plaintiff Cora King, Edna's sister, testified that: Sidney and Edna Stokes had been married for about 12 or 12 1/2 years (in 1938 or 1939); they lived with Edna's parents for about 2 years and in St. Louis City probably 2 or 3 years; Edna taught school in St. Louis County until they moved to De Soto; they later returned to Fredericktown; for about 2 years before Edna's death, they had lived in the Newberry Street home (built in 1948) and Edna taught school. In August or September, 1950, Cora noticed that Edna 'was failing.' Edna and Sidney lived in Cora's home 8 of the 9 weeks before Edna's death (the other week Edna was in the hospital). Cora said that she saw Edna often when they (the Stokeses) 'lived here in Fredericktown. * * * She was at my house almost every day as long as she was able to come down.'

The trial court struck out these portions of Cora's testimony (given over objection): Edna and Sidney 'didn't get along at all, and she was very unhappy. She told me so not only once but almost every day she was. She would come home from school and sit and cry and tell me how Sid treated her and tell all about this, conversations that sisters would have'; that Sidney was 'away from home practically all the time through the week.' (Note that Cora was obviously speaking of times after the Stokes' return to Fredericktown--a date not shown in the record--and, apparently, of times after the Stokeses had moved into the Newberry Street home.) Asked what she had 'seen and heard * * * prior to December 9, 1946 (the date of the deed), as to how Sidney treated Edna,' Cora said: 'Well, it was just the same old story and it had been that way for years. * * *

'Q. Tell what it was. A. Well, he would just go off and leave her and be gone, and when he came in and sometimes she would ask, 'Where are you going, Sidney?' and he just looked off and he would say, 'What you don't know don't hurt you,' and sometimes when he come home, it was the same answer. * * *

'Q. Was that often? A. Pretty often. * * *

'Q. How many times did you hear that, approximately? A. Almost every week end, if I happened to be up there. * * * I wasn't there every week end.'

Plaintiff O. J. Ferguson, Edna's brother and the husband-grantor in the deed, testified: According to his best recollection, the $700 consideration was paid by Edna, partly in cash on one occasion and partly by a check on another, and that Sidney paid no part thereof. Asked, 'What did you do with reference to having the deed made,' Ferguson replied: 'My memory isn't very clear on that. I was having a number of deeds made along about that time.

'Q. Did you make any directions? What did you tell the person--whom did you ask to draw the deed? A. Mr. Englehart (a lawyer in Fredericktown).

'Q. He drew all your deeds? A. Yes.

'Q. And what did you tell him? A. I am not sure. I don't know. * * *

'Q. Did Sidney Stokes ever approach you about buying this property * * *? A. No.

'Q. Who did your sister say was buying the property, or did she say? A. No. * * *

'Q. Did you ever have a conversation with anybody about making the deed to the husband and the wife? A. No. * * *

'Q. Did you have a conversation with your sister after you had given instructions to Mr. Englehart as to how the deed should be made? A. I am not sure. * * *

'Q. I mean within a day or two before the thing was closed? A. Yes.

'Q. What was said about it? A. When she either made me the first cash payment or the final payment by check, she said, 'Now, will it be necessary to get a bank loan,' and she said, 'Will I be able to get that unless both our names are on it?'

'Q. On the what, the deed? A. On the deed, and I said, 'I don't know,' and I said, 'You had better consult an attorney,' or perhaps I said to consult one. I don't remember about that. I answered previously that I thought she would be able to obtain a loan, but I didn't know anything about the requirements as to title.' So far as Ferguson knew, Edna was not 'ever experienced in real estate transactions other than this transaction here.'

Ferguson said that, as a member of the bank's discount committee 'which passed on loans' at that time, he knew that Edna 'got a loan' from the bank. (There was no evidence as to the terms of the loan. There was evidence that in 1949 Edna paid the bank $598.44 by one check, but for what does not appear, and in 1950, $145 by 3 checks, each marked 'for interest on $5,400 loan.' Apparently, the note was signed by Edna alone and was not secured by a deed of trust on the Newberry Street home.)

Ferguson 'did not recall' going to Englehart's office 'in regard to the preparation of this deed * * * and 'sitting down and helping to work out the description on it.' He was not sure that, when he executed the deed, the names of the grantees were already written in. However, he owned 'a great deal of land in this town, had made many conveyances such as this and was not in the habit of signing deeds without reading them'; he wouldn't sign a deed without knowing the description of the lot. Asked if he had left the deed with Englehart to be delivered to Mrs. Stokes, he said, 'I can't even remember that.'

The trial court sustained defendant's objection to the question as to what Ferguson knew about Sidney's financial status at the time the bank made the loan to Edna. Plaintiffs' offer was that Ferguson would testify that Sidney 'would be unable to borrow money from the bank except on security, and that he was insolvent, at least he had no property, at least with which to buy property, and that he owned no other property out of which he could raise money to pay off a loan.'

Plaintiff Andrew Ferguson, Edna's brother, testified that: He and Sidney 'were not 'very friendly,' let's just say 'friendly." Sidney (and Edna, apparently) stayed at Andrew's home while the house was being built in 1948. During that time, he had 2 or 3 conversations with Sidney in which Sidney told him 'it was my sister's house and he was building it for her and that there would be a lot of things he would build differently if it was his. She was the boss; it was her property and he was building it to suit her.' Andrew discussed the matter with defendant because he was interested in seeing that his sister was satisfied with the house. He was on the site 3 or 4 times and saw defendant there every time.

Plaintiff's other evidence was as to matters subsequent to the execution and delivery of the deed, viz.: Edna's bank statements between January 26, 1948, and March 28, 1950 (which show neither the source of the deposits nor the purposes for which the withdrawals were made); Edna's cancelled checks written between February 28, 1949, and August 26, 1950, for utilities bills for the home and for groceries and miscellaneous items; Edna's cancelled checks, written between March 29, 1948, and August 7, 1950, for items of labor and materials for the construction of the home, including some to Sidney personally (which, under the other evidence, were in payment of his supervision of the construction); Edna's cancelled checks, written between November 29, 1946, and July 26, 1950 for 1949 city and county taxes on the home, for 'interest on $5,400 loan' (one to the bank, dated February 2, 1949, for $598.44 bore no notation), for insurance on the home and one dated September 7, 1948, 'for abstracts'; a set of plans bearing the notation, 'House for Mrs. Edna Stokes--Sidney Stokes, Architect.'

The trial court excluded evidence that Sidney, as administrator of Edna's estate, had secured allowance of, and had paid out of the estate, claims for Edna's medical and drug bills and funeral...