Hiatt v. Hiatt
| Citation | 168 S.W.2d 1087 |
| Decision Date | 02 March 1943 |
| Docket Number | 38326 |
| Parties | HIATT v. HIATT |
| Court | Missouri Supreme Court |
G. Purd Hays, of Ozark, for appellant.
Omer E Brown, of Ozark, for respondent.
DALTON, Commissioner.
Action to partition described real estate in Christian County, with cross action to quiet the title in defendant. A jury was waived and, upon trial by the court, the court found for plaintiff and ordered partition. Defendant has appealed. We have jurisdiction because title to real estate is directly involved. Price v. Gordon, 347 Mo. 354, 147 S.W.2d 609; Tillman v. Melton, Mo.Sup., 165 S.W.2d 684.
The property in question consists of a house and four lots worth from four to five hundred dollars and is encumbered by a mortgage lien for $ 200 to the Ozark Building and Loan Association.
Defendant and plaintiff had been married, had acquired the real estate by a deed to them as husband and wife and, later, they had been divorced, but such facts do not expressly appear from the pleadings. The petition alleged that plaintiff and defendant were the owners of the described lands as tenants in common, subject to a certain lien, and prayed judgment for partition. By answer and cross petition defendant alleged that he was the owner of the property described in the petition; that he purchased it and paid for it with his own money; that plaintiff paid no part thereof; and that plaintiff had absconded from defendant's home with another man and had lived in the state of adultery 'which is a bar to her claiming any right or title to the said land.' Defendant asked judgment that all of the title be vested in him in fee simple. The reply was a general denial with a prayer for partition.
On trial of the cause, plaintiff offered in evidence a warranty deed to the described property, dated September 1, 1938, from James O. Dwyer to James A. Hiatt and Fannie Hiatt, husband and wife. The consideration stated in the deed was $ 1 and exchange of property. Counsel for defendant then stated that it was admitted the parties 'jointly' owned the property. Plaintiff did not appear as a witness.
Defendant testified that 'title stands in both our names,' but he further said that he bought the property 'out of his own money'; that he bought it and owned it; that his wife didn't pay for any of it; and that he lived with his wife two years after the property was purchased. He later admitted he received the property in a trade and that the property conveyed by plaintiff and defendant to James O. Dwyer in exchange for the property sought to be partitioned was also owned by defendant and plaintiff as husband and wife.
Plaintiff and defendant were married in 1922. Defendant owned one piece of property before marriage, but later sold it. He bought another piece and sold it and 'used up the money.' He bought and sold (traded) two or three pieces of property. All of the property was owned by defendant and plaintiff, as husband and wife. Plaintiff had no money when she married and never put any money in any property acquired by defendant.
About 1941 plaintiff instituted a suit against defendant for divorce on the ground of indignities. Defendant filed a cross bill against plaintiff for divorce on the ground of adultery. All of the pleadings, but not the decree of divorce in said cause, were in evidence. Defendant testified that he was divorced from plaintiff but he did not say who was granted the divorce. He did not testify to any act of adultery by plaintiff, but said that plaintiff left him and went off with another man; that she lived in the same house with this man; that this man bought her candy and cigarettes; and that they were out together every night in an automobile.
The court found that plaintiff and defendant were each the owner of an undivided one-half interest in fee in the described real estate; and that the real estate was not susceptible to division in kind. The court ordered a sale, subject to the existing mortgage lien, for the purpose of making partition.
In his brief appellant contends he obtained the decree of divorce. Respondent merely says that appellant did not offer the divorce decree and that there was 'no testimony in this suit or in any other' that respondent had been guilty of adultery.
The only error assigned is that the judgment should have been for appellant (defendant below). It is contended (1) that plaintiff abandoned her husband and by reason of her conduct has forfeited her right to any of the property of her husband and (2) that, since plaintiff paid nothing on the purchase price of the property, when the divorce was granted all of plaintiff's right, title and interest in the property conveyed to husband and wife was forfeited to defendant (the husband). Respondent (plaintiff below) contends that the divorce destroyed the tenancy by the entirety; that the parties then became tenants in common; and that, 'when a husband obtains a decree of divorce for the fault of the wife, he cannot divest title out of her and have it vested in him solely by reason of the divorce.'
It is important for the purpose of our review to determine whether the proceeding before us is at law or in equity. If the issues made by the pleadings tender only issues at law, and if the parties seek only the establishment of legal rights, the proceeding is at law. Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381, 384. It will be noted that there is no suggestion in the pleadings that the legal title to the described real estate stood of record in the names of defendant and plaintiff, as husband and wife, nor is there any suggestion that they had been divorced. No facts are stated in the cross petition to invoke the jurisdiction of a court of equity to declare a resulting trust, to take any legal title from the plaintiff (which had been conveyed to her by deed), or to vest such title in defendant. So far as appears from the facts stated in the answer and cross petition, the defendant claims to be the owner of the legal title to the described real estate and seeks to have such legal title established.
The record below shows that a jury was waived and the causes of action in the petition and cross petition were tried to the court and the issues found for plaintiff, to wit, that plaintiff and defendant were each the owner of an undivided one-half interest in said real estate and that plaintiff was entitled to partition. No findings of fact or declarations of law were requested or given. In such situation, the proceeding being at law, the interlocutory judgment ordering partition must be affirmed, if the finding of the trial court can be sustained upon any reasonable theory. Murphy v. Doniphan Telephone Co., 347 Mo. 372, 147 S.W.2d 616, 618.
The deed of September 1, 1938, conveying the real estate in question to defendant and plaintiff as husband and wife, created, prima facie, an estate by the entirety. Baker v. Lamar, Mo.Sup., 141 S.W.2d 31, 35; Milligan v. Bing, 341 Mo. 648, 108 S.W.2d 108, 109; Moss v. Ardrey, 260 Mo. 595, 604, 169 S.W. 6. There is no suggestion in the evidence that such an estate by the entirety was not intended by all the parties at the time of the execution and delivery of the deed. No fraud, accident or mistake is charged or proven. From the evidence in the record, we think it is clear that, upon delivery of the deed from James O. Dwyer, the plaintiff and defendant became seized of the property as tenants by the entirety. The decree of divorce was not in evidence, but it is conceded that the parties are now divorced. The legal effect of the decree of divorce was to destroy the estate by the entirety and, thereupon, each of the parties became vested with an undivided one-half interest in the described lands, as tenants in common, and each had the right to have partition thereof. Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49, 55; State ex rel. Roll v. Ellison, 290 Mo. 28, 233 S.W. 1065; Joerger v. Joerger, 193 Mo. 133, 139, 91 S.W. 918; Russell v. Russell, 122 Mo. 235, 238, 26 S.W. 677, 43 Am.St.Rep. 581.
Considered on review here as an action at law, the judgment would have to be affirmed.
If we assume, however, that defendant by the...
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