Hahn v. Hahn, 22243

Decision Date09 January 1956
Docket NumberNo. 22243,22243
Citation287 S.W.2d 337
PartiesCarl K. HAHN, Respondent, v. Corinne F. HAHN, Appellant.
CourtMissouri Court of Appeals

S. Cedric Siegfried, Independence, Walter A. Raymond, Kansas City, for appellant.

David W. Barry, Eugene G. Wetzel, Meyer, Smith, Wetzel & Barry, Kansas City, for respondent.

BOUR, Commissioner.

Carl K. Hahn brought an action for partition of certain real estate in Jackson county, Missouri. Corinne F. Hahn, plaintiff's former wife, the trustee (Paul T. White) under a deed of trust on the real estate, dated June 9, 1938, the holder (Lindell Trust Company) of the note secured by said deed of trust, and the trustee (Edmond B. Smith) and beneficiary (Ray M. Klapmeyer) of a deed of trust on plaintiff's undivided interest in the same property, dated April 11, 1953, were named as defendants in plaintiff's amended petition. The cause was tried before the court without a jury. Defendant Corinne F. Hahn, alone, appealed to this court. She appealed from an abverse judgment on her cross action.

We will refer to the respondent as plaintiff and to the appellant as defendant.

Plaintiff and defendant were married in 1928. In June, 1938, they bought the above mentioned real estate from the Home Owners Loan Corporation, taking title as tenants by the entirety, and made a down payment of $385 out of their joint funds. On June 9, 1938, they executed and delivered to the seller their note for $3,465, the unpaid balance of the purchase price; and on the same day they executed and delivered to the seller a deed of trust on said real estate, naming Paul T. White as trustee, to secure the payment of their note. In 1952 defendant brought suit for divorce in the circuit court of Jackson county. On October 23, 1952, she was granted a divorce and awarded $2,000 alimony in gross, and $200 for attorneys' fees. At the time of the divorce the parties still owned the real estate in question, as tenants by the entirety, subject to the deed of trust described above. After the divorce, by operation of law, they were tenants in common, each owning an undivided one-half interest in the property, subject to the lien of said deed of trust. Hiatt v. Hiatt, Mo.Sup., 168 S.W.2d 1087, 1089. In April, 1953, plaintiff borrowed $2,200, from Ray M. Klapmeyer and the money was used by plaintiff to pay the judgment for alimony and attorneys' fees heretofore mentioned. On April 11, 1953, plaintiff gave Klapmeyer his note for $2,200 and on the same day plaintiff executed and delivered to Klapmeyer a deed of trust on plaintiff's undivided interest in said real estate, to secure the payment of the note. Edmond B. Smith was named as trustee.

On April 13, 1953, plaintiff filed suit for partition of the real estate. The record shows that on November 7, 1953, defendant, Corinne F. Hahn, filed a separate 'Amended Answer and Cross Action', and that plaintiff filed a reply to the amended cross action. Thereafter, on March 6, 1954, plaintiff filed his first amended petition. At the beginning of the trial, on July 15, 1954, and with leave of court, defendant refiled her first amended answer and cross action, and plaintiff refiled his reply. In view of the oral agreement made by counsel for the respective parties at the beginning of the trial, it is unnecessary to set forth the admissions and denials in defendant's first amended answer, which was refiled as an answer to the first amended petition. It may be stated, however, that the amended answer is very confusing when considered as an answer to the amended petition.

The case was tried on plaintiff's first amended petition, which alleged that plaintiff and defendant were in possession of the described property and the owners thereof as tenants in common, subject to the lien of a deed of trust dated June 9, 1938, securing a note in the principal amount of $3,465; that said note and deed of trust had been assigned and transferred to the Lindell Trust Company; that plaintiff's interest in the property was further encumbered by a deed of trust dated April 11, 1952, securing a note for $2,200; that the property (a house and lot) could not be partitioned in kind without great prejudice to the owners. Plaintiff prayed for the sale of the property and the division of the proceeds 'among all the parties hereto in proportion and according to their respective interests, and for such other orders, decrees and further relief as to the court may seem meet and just in the premises.'

As appears below, on July 15, 1954, and during the course of the trial, defendant was granted leave to amend her answer and cross action, and the case was continued until September 8, 1954. On July 22, 1954, defendant filed her 'Second Amended Answer and Cross Action'. The second 'amended answer' was identical with the first amended answer. It would seem that defendant's cross action was a counterclaim under Section 509.420 RSMo 1949, V.A.M.S. Cf. 42 V.A.M.S. Supreme Court Rules, rule 3.16. In her second amended cross action or counterclaim, defendant referred to the deed of trust dated June 9, 1938, securing the note for $3,465, and alleged that both before and after October 23, 1952, the date of the divorce, she made payments on said note to the holder thereof; that the total amount of such payments was $5,450, including interest; that all of these payments were made with her own funds; that 'between 1939 and the time of said divorce' she 'paid out of her own funds for improvements and repairs on said premises the sum of $175.59'; that since the divorce she had 'paid out of her own funds the sum of $358.20' for improvements on the property; that 'said payments were made by defendant at the request of plaintiff and upon his promise and agreement that he would reimburse her for such payments in cash or out of his interest in said premises; that defendant made said payments in reliance on said promise and understanding; that by reason thereof the defendant has acquired and does now have an equitable lien on said property * * *.' Defendant further alleged that she had no adequate remedy at law. She prayed that the court 'enter a decree finding said land cannot be partitioned, fixing a lien thereon in favor of defendant for the amount of moneys advanced by her in the sum of $5,983.79, ordering said land sold and said deed of trust satisfied, defendant's lien satisfied and the balance divided equally between plaintiff and defendant after the payment of the costs herein.' (Italics ours.) The first amended cross action or counterclaim did not contain the italicized part.

In his amended reply, filed August 18, 1954, plaintiff denied each and every allegation in defendant's second amended cross action; alleged 'that defendant has had the use and occupancy of and the rentals received from the real estate in question since the parties hereto were divorced and that any mortgage payments made by the defendant or any sums expended by the defendant for repairs or improvement of the real estate in question since the parties hereto were divorced to not exceed the rental of the premises or the rents collected by the defendant for which no accounting has been made to the plaintiff, and that the plaintiff is not indebted to the defendant for any such payments or for any sums so expended.' Plaintiff reaffirmed the allegations in his amended petition and concluded with a prayer substantially the same as the prayer of his amended petition. The other pleadings in the case need not be noted.

The record further shows that at the beginning of the trial, on July 15, 1954, counsel for the respective parties orally agreed that plaintiff and defendant acquired the described property in June, 1938, taking title as tenants by the entirety, and that they were divorced on October 23, 1952; that the property could not be divided in kind and should be sold; that the Lindell Trust Company was the owner and holder of the note secured by the deed of trust dated June 9, 1938; that said deed of trust was a first lien on the property; that on August 9, 1954, the balance due on said note would be $870.72; that plaintiff's undivided interest in the property was further encumbered by the deed of trust dated April 11, 1953, securing the note for $2,200; and that the amount due on the last mentioned note was $2,200 plus $200 interest.

After counsel so agreed, in open court, the trial judge said: 'I think with those agreements there is a case made for the plaintiff, and it is a question of the cross action now.' Thereupon defendant took the stand and testified at length in support of her cross action or counterclaim. She testified, inter alia, that she had paid out about $375 of her own money for improvements on the described property. This testimony was admitted over plaintiff's objection that it was 'outside the scope of the pleadings'. When defendant's Exhibit A was offered in evidence, plaintiff objected to its admission on the ground, among others, that it included 'the item of $266.71 for improvements', and that defendant's pleading did not allege that she had expended money for improvements on the property. Defendant then requested leave to amend her cross action or counterclaim so as to cover such expenditures. The court announced that defendant would be granted leave to amend her pleadings, and that the cause would be continued until ...

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