Hallmark v. Stillings

• Decision Date: 09 March 1983
• Docket Number: No. 12710,12710
• Citation: 648 S.W.2d 230
• Parties: Verla HALLMARK, Plaintiff-Respondent, v. Lawrence Ray STILLINGS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 230

648 S.W.2d 230

Verla HALLMARK, Plaintiff-Respondent, v.Lawrence Ray STILLINGS, Defendant-Appellant.

No. 12710.

Missouri Court of Appeals,

Southern District,

Division Two.

March 9, 1983.

James E. Curry, John H. Tharp, Ava, for defendant-appellant.

Scott B. Stinson, Mountain Grove, for plaintiff-respondent.

HOGAN, Judge.

This is an action in replevin tried to the court under the provisions of Chapter 533, RSMo 1978 and Civil Rule 99.¹Plaintiff had judgment and defendant appealed.Because the judgment rendered was not in the form contemplated by Rules 99.12and99.13, this court reversed and remanded the cause for entry of a new judgment without addressing the merits of the appeal.Hallmark v. Stillings, 620 S.W.2d 436(Mo.App.1981).Upon remand, the trial court entered a new judgment; defendant again appealed.The appeal is thus before the court for a second time but there is no "second appeal" in the sense that some "law of the case" has been established.

Plaintiff's cause was originally laid in two counts but we are only concerned with the count in replevin, on which the case was tried.The substance of the count in replevin is that on and prior to October 23, 1976, plaintiff and her husband owned 8 head of horses and 45 diverse items of personal property as tenants by the entirety.The various animals, machines and other items of personal property were listed, the list was denominated Exhibit "A" and was attached to and incorporated in the petition as provided by Rule 55.12.We shall not attempt to reproduce the schedule here; it is set out as an appendix to the court's prior opinion, 620 S.W.2d at 438.Plaintiff further averred that her husband died on October 23, 1976; that thereafter defendant took all the personalty listed in possession, although plaintiff was, at all times material, entitled to immediate possession of the personalty listed.

Pleading in anticipation, plaintiff alleged that any claim defendant had to the property arose out of and was based on a promissory note and chattel mortgage allegedly executed by plaintiff's deceased husband on May 15, 1976, and that if the note and mortgage were executed as appeared on the face of those instruments, they had been executed without plaintiff's knowledge or consent.Averring that defendant's taking had been "willful, wanton, malicious and fraudulent,"plaintiff prayed delivery of the items listed, or in the alternative, for damages in the amount of $10,000 and for punitive damages in the sum of $25,000.

Upon remand, the trial court entered a judgment, finding: 1) That at all times subsequent to October 23, 1976, plaintiff was entitled to possession of the personal property in issue, as shown by an exhibit received in evidence and attached to the judgment; 2) that defendant had no right to possession of any of the personalty; 3) that on or about October 25, 1976, defendant took possession of all the items listed in Exhibit "A"; ² 4) that the value of the personalty taken was $11,005; 5) that the actual damages sustained by plaintiff because of defendant's wrongful taking of the personalty was $11,005, less the value of any specific items plaintiff might elect to recover in kind pursuant to Rules 99.12and99.13; further, plaintiff had suffered nominal damages by reason of the taking and detention of the items listed on Exhibit "A", to which the court assigned no specific value for purposes of execution; 6) that defendant's conduct in the taking of the personalty was "willful, wanton, malicious and without just cause" and therefore plaintiff was entitled to punitive damages in the sum of $5,000, in addition to her actual damages.

The plaintiff has filed an election.She has elected to recover an Appaloosa stallion, a 14-foot covered stock trailer and eight other specific chattels, otherwise to have a money judgment in the sum of $5,085.

In this court, the defendant has briefed several diffuse points.The first of these is that plaintiff did not prove a right to immediate possession of the chattels, which, as defendant maintains, is a necessary prerequisite to recovery in replevin.The facts bearing on this point, as the trial court might have found them to be, were that plaintiff and her husband were married a little more than 19 years before they finally separated in September 1976.At the time of separation, plaintiff and her husband were living just west of Ava, Missouri, on a "farm-like" place.Plaintiff's husband left, stayed away several weeks and returned.Because Mr. Hallmark was a horse fancier, he wanted to attend to the horses personally.He asked the plaintiff to find another place to live.She obliged by taking the children to Wasola, a small community southeast of Ava, in Ozark County.

During the next three weeks, the plaintiff went to Ava several times, perhaps daily, to attend to an Appaloosa stallion which required water and feed twice daily.This stallion--Judge's Choice--is and has been the object of particular concern in this case.Plaintiff described this animal as a registered stallion, 12 years old at trial time, which she and her husband had shown and bred for profit.Plaintiff valued Judge's Choice at $5,000, so he accounts for almost half the value of the personalty in issue.

In any case, plaintiff had left much of the personalty she now claims at Ava when she moved to Wasola.During the 3-week period following her move to Wasola, and while she was traveling back and forth, plaintiff found things at Ava much as she had left them.On October 23, 1976, plaintiff's husband was shot and killed at Wasola by a stepson.When plaintiff returned to Ava on October 25she found that "[n]othing was there."This action followed, in circumstances to be noted.

To establish her right to possession of the property, plaintiff had the following evidence: She testified that neither she nor her husband brought any substantial assets into the marriage.³She further testified that she and her husband acquired personal property, but no realty, during their marriage, and explained that because she and her husband were separated, she was not in actual possession of the personalty claimed in this action at the time it was taken.

Thereupon, counsel proceeded to inquire specifically about several items listed on schedule "A".Being asked to "list for the Court the items of personal property"she and her husband owned at the time of their separation and acquired during her marriage, plaintiff began with an Appaloosa stallion--Judge's Choice--which she and her husband had shown and "put ... out to stud" for profit.Plaintiff stated the value of this horse was $5,000.She further testified that she and her husband also owned an additional seven head of horses, of the value of $3,050.Plaintiff also specifically testified concerning a 14-foot horse trailer of the value of $500; a show saddle, worth $250, and a wood heater of the value of $200.

At this point, counsel offered her exhibit 2, the schedule upon which the judgment is based, with the explanation that the exhibit was "a list of items that this plaintiff would testify were in the possession of her husband ... when she separated with [sic] him and were left at the farm house west of Ava, and this list includes the values that she would testify to."Being asked if he had objection, counsel for the defendant replied "No, Judge.We do not agree, of course, to these values, but in the interest of brevity we will agree that's what this witness would testify to if she were asked."

Our courts have held on many occasions that a husband and wife may hold personalty as tenants by the entirety.⁴So, by analogy to estates in realty, each tenant holds the property per tout and not per my and upon the death of one tenant, the survivor does not succeed to the whole estate but continues to hold the estate as a sole owner.Coffey v. Coffey, supra, 485 S.W.2d at 170[1-3].This court has time and again held that when spouses make a mutual effort to accumulate property during the marriage, and there is no contrary agreement, the fruits of their common purpose become an entirety.⁵Predictably, the precedents cannot be easily reconciled, in part because the analogy between an estate in land and an interest in personalty is incomplete, and in part because ownership of some types of personalty, e.g., a chose or contract right such as an interest in a joint bank account, is ordinarily indicated by a formal instrument of creation or transfer, while other kinds of personalty are ordinarily acquired without any instrument of acquisition or transfer except such as would be hearsay itself.

The personal property with which we are concerned--livestock and household furnishings--are not items to which one ordinarily acquires a formal "title."The question of ownership is not a matter of law, and oral evidence from a witness with knowledge concerning ownership of such chattels is competent, primary evidence of the fact of ownership.⁶The plaintiff testified that she and her husband acquired and owned the property she sought to replevy.This was competent, direct evidence of ownership.Inexplicit as plaintiff's testimony was, it was nonetheless sufficient to permit the inference that all the personalty in issue had been jointly acquired by the plaintiff and her husband without limitation or condition, and therefore became entirety property.SeeRay v. Ray, supra, n. 5, 336 S.W.2d at 737;Baxter, Marital Property§ 4:5, pp. 53-54(1973).Our review of the record generates no firm belief that such an implied finding is wrong.

Defendant broadly asserts that because plaintiff and her husband executed a division of property in anticipation of a divorce, they"changed" the nature of their interest in the property.Counsel is mistaken.A division of property by spouses who intend to be divorced may be made by separation agreement pursuant to § 452.325 and such an agreement preempts a judicial division...