Goforth v. Ellis

Decision Date08 April 1957
Docket NumberNo. 1,No. 45358,45358,1
Citation300 S.W.2d 379
PartiesScott GOFORTH, Plaintiff-Respondent, v. Edna ELLIS and Frank Ellis, Defendants-Appellants
CourtMissouri Supreme Court

Hugh B. Downey, Milton A. Abrams, Downey, Abrams & Sullivan, Kansas City, for appellant.

Gresham, Boughan & Whipple, Walter J. Gresham, Kansas City, for respondent.

HYDE, Judge.

Action to partition real estate in Jackson County, in which defendant Frank Ellis claimed an undivided interest. The court adjudged that Frank Ellis had no interest in the property; that plaintiff and defendant Edna Ellis each had an undivided one-half interest; that the interest of Edna Ellis should be charged with a total amount of $3,799.33; and that the property should be sold and the proceeds divided in accordance with their interests and the amount of the equitable charges made in the judgment. Defendants have appealed from this judgment.

Neither the petition nor the answer and cross petition made any definite claims of specific interests but all parties asked the court to ascertain and determine the interests of the parties. The deed to the property was never offered in evidence, so we do not know what its provisions were. However, according to the testimony on both sides, the grantees were plaintiff and Edna Ellis, who was plaintiff's first cousin. Furthermore, according to the pleadings of all parties, Frank Ellis, husband of Edna Ellis, had an equitable interest of some kind in the property by reason of making payments of monthly installments on the part of the purchase price secured by a trust deed thereon signed by all three parties. Nevertheless, plaintiff now contends Frank Ellis has no interest and the court so found, while he contends he has an equal interest with plaintiff. Thus title to real estate is involved so as to give this court jurisdiction under Sec. 3, Art. V of our Constitution, V.A.M.S.

The property was purchased in March 1950, for $6,500. Plaintiff paid $2,000 down and all three parties signed a note for $4,500, secured by a deed of trust on the property, payable in monthly installments of $50, which applied on both interest and principal. These payments were all made by Frank Ellis and at the time of the trial in August 1955, he had paid a total of $3,200 of which $1,131.68 had been applied on interest and $2,068.32 on principal. Frank Ellis had also paid $515.40 for a new furnace, for which all three parties had signed a note in that amount, dated August 2, 1951 (the principal being payable in 30 monthly installments) with interest at 5% per annum; $319.79 for a retaining wall, of which defendants paid $50 down and gave their note, dated April 24, 1953, for the balance (payable in 24 monthly installments); and $300 for repairs on the house foundation, paid March 18, 1955, after this suit had been commenced. Defendants also, on March 31, 1955, obligated themselves to pay $405 for storm windows and screens.

The main difference between the parties is the construction of the oral agreement between them. Plaintiff was a retired army Master Sergeant. He had a room in the house and had access to all of it, sometimes entertaining friends there. He made annual trips to the Walter Reed Hospital in Washington, D. C. and visited other cities each year. He estimated that he was away about four and a half months a year, while defendants' estimate was about four weeks. Edna Ellis used one room for a part time beauty shop and at times other relatives of the parties also lived in the house. Plaintiff paid the taxes and insurance and defendants paid the electric, gas and telephone bills. Defendants furnished plaintiff most of his meals but he said he spent $8 to $10 weekly for groceries he brought in and ate part of his meals out. Plaintiff cut the grass, washed windows and did other work about the place. Plaintiff's brief advances the theory (apparently followed in the judgment) that the $50 monthly payments on the $4,500 purchase mortgage note (signed by all three parties) was to be considered as rent which was due from defendants to plaintiff and, therefore, defendants were entitled to no interest in the property by reason of making these payments. However, plaintiff did not so testify. He said he considered the monthly rental value of the place to be $100 and said his share of it would be $50. Plaintiff testified further as follows:

'Q. The Ellises were to make the monthly payment. Was that in lieu of rent to you, in place of rent to you? A. No, that wasn't no rent to me, to make the $50.00 a month payment to the man that owned the property.

'Q. And pay you $2,000.00 back for your investment? A. Yes, sir. * * *

'Q. Did you understand that the $50.00 a month payment on the note was made for your benefit? A. It was made for my benefit and their benefit, too, because they had an interest in the house as far as living there. * * *

'Q. Was it your agreement that the $50.00 payment by them on the note was not to give them any interest in the property? A. Not to give them no interest in the property?

'Q. Was that your agreement? A. Well, no, I wouldn't agree on that. If they paid it they had an interest in there. They didn't pay no money on the down payment, wasn't no money paid on the down payment. I paid the down payment on it.

'Q. Do you understand then that the payments made by them on the balance gave them an interest in this house? A. If they paid an equal amount I had in there they would have interest in it.

'The Court: Let me ask you, suppose they paid half of the amount you had did you think they had that amount of interest in it or do you think they had any interest in it? A. If they paid $2,000.00, I believe they had as much interest in it as I did * * *.

'Q. There was no agreement to pay you any rent? A. No agreement.

'Mr. Gresham: No express agreement. That is an implied agreement that the petition refers to. * * *

'Mr. Gresham: Yes, we don't allege there was an expressed agreement, we are pleading implied agreement from the time they occupied the property.'

Defendants' testimony was that plaintiff said to Edna Ellis: 'I will furnish a down payment if you get Frank to agree to keep the note up until it equals up to what I made as a down payment and from there we will go fifty-fifty.' Defendants' construction of this was stated by Frank Ellis as follows: 'During the down payment he and my wife would be owners until I made a payment of $2,000.00, after I paid $2,000.00 which would include utilities, expenses on repairs and monthly payment, then my wife and I would own half interest and Mr. Goforth half.' Thus defendants claimed the entire $50 payment (including both interest and principal) was to be considered so they would have an equal interest when $2,000 total had been paid and they also claimed the amounts they paid each month for utilities and the value of meals furnished plaintiff (claimed to be $15 per week) should be considered in computing the total for which they should have credit, as well as the amounts paid for the furnace, retaining wall, basement repairs, screens and storm windows.

The charges made by the court in its judgment against the undivided half-interest of Edna Ellis was as follows: 'That the interest of defendant Edna Ellis be charged with the sum of $2,000.00, which should have been paid to the seller at the time of the purchase of said property; that plaintiff is entitled to credit against the interest of Edna Ellis for one-half of the sum of $334.57 which plaintiff has paid for taxes, and one-half of the sum of $64.05 which plaintiff has paid for insurance, being respectively the sums of $167.28 and $32.03. Plaintiff is also entitled to credit against the interest of said defendant for one-half of the sum of $2,068.32 paid by defendant Edna Ellis on the deed of trust as an agreed rental to plaintiff, and one-half of the sum of $1,131.68 paid as interest on said debt as agreed rental to plaintiff, said sums respectively being $1,034.16 and $565.84; the total of said charges against the interest of said defendant being $3,799.31.'

It was obviously incorrect to make a charge against defendants for rent. Not only did plaintiff testify there was no agreement for defendants to pay him rent but his counsel also admitted there was no such agreement and stated he was relying upon an implied agreement from the occupation of the premises by defendants. As shown by the authorities hereinafter cited, there is no such implication from occupation by cotenants when both are occupying...

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