Hinkle v. Hinkle

• Decision Date: 19 December 1921
• Docket Number: No. 22140.,22140.
• Citation: 236 S.W. 30
• Parties: HINKLE v. HINKLE
• Court: Missouri Supreme Court

236 S.W. 30

HINKLE v. HINKLE

No. 22140.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Appeal from Circuit Court, Hickory County; C. H. Skinker, Judge.

Suit by J. B. Hinkle against Lee Hinkle, executor of the last will and testament of Margaret J. Hinkle, deceased, and the heirs and devisees of Margaret. J. Hinkle, deceased. Action was commenced against Margaret J. Hinkle, and on her death her executor, heirs, and devisees were substituted as defendants. From judgment dismissing plaintiff's petitions, and adjudging to defendants the recovery of the real estate described in the petitions, and fixing the monthly value of the rents and profits at $40, and overruling the motion of plaintiff for a new trial, plaintiff appeals. Affirmed.

W. A. Dollarhide, of Osceola, and Herman Pufahl, of Bolivar, for appellant.

Henry P. Lay, of Warsaw, for respondents.

RAGLAND, C.

On May 9, 1919, the plaintiff, J. B. Hinkle, filed two petitions in the circuit court of Hickory county against Margaret J. Hinkle and another, as to whom he afterwards dismissed.

By the first petition he sought to have the court declare a resulting trust in his favor as to 100 acres of land in that county, hereinafter referred to as "the Foster land," which he alleged the defendant purchased with his money, taking title to herself. By her answer to this petition the defendant admitted the purchase of the land, denied that it was paid for with the money of plaintiff, and pleaded that plaintiff's cause of action, if any, was barred by his latches in seeking to enforce it. By his second petition plaintiff sought specifically to enforce an alleged oral contract which he pleaded therein as follows:

"That about the year 1903, the defendant Margaret J. Hinkle, solicited and requested the plaintiff to come and reside with her and agreed with the plaintiff that if he would come and reside with her and assist her in managing her said tract of land and' also the 160-acre tract of land, which land had formerly belonged to J. B. Hinkle, Sr., and would care for her and support her during her natural life and furnish her medical attendance when necessary and give her his personal attention and look after her welfare and comfort, she, the said Margaret J. Hinkle, would give and convey to plaintiff said above-described tract of land, of which she was the owner in fee, and would also convey and transfer and give to plaintiff any and all personal property of which she was the owner, or in which she had any interest, and which was on said premises, or any part thereof, at the time of her death; and also agreed with plaintiff that he should bring his family and come and live on said premises from that time on, and improve them, and that any improvements which he might make or place thereon should be his, and that he should have the use and benefit and income from said premises from that time on."

It was further alleged that from the date of the said contract, about 1903, until the filing of the petition, plaintiff had complied, was then complying, with his part of said alleged agreement, but that the defendant now refuses to recognize said contract, and threatens to sell said land and dispossess the plaintiff thereof. By her answer the defendant admitted the ownership of the land, but denied the contract, and denied the execution thereof; admitted that plaintiff was in possession of the land; averred that plaintiff's action was prematurely brought, and by a counterclaim or cross-bill sought to recover possession of the land and rent for the use thereof. Both petitions contained a second count, asking the court to ascertain and determine the title to the respective tracts of land. Replications were filed to each answer and counterclaim denying the new matter. By agreement of parties the actions were consolidated and tried as one cause. `Upon a trial before the court on November 20, 1919, judgment was rendered in favor of the defendant, dismissing plaintiff's petitions, adjudging to her the recovery of the real estate described in the petitions, and fixing the monthly value of the rents and profits at $40.

After the overruling of a timely motion for a new trial the plaintiff duly perfected his appeal to this court. Pending the appeal the death of the defendant Margaret J. Hinkle has been suggested, and the action revived in the names of her executor and devisees.

The facts in general outline as disclosed by the evidence are as follows:

In the year 1903 the defendant, then a widow about 70 years of age, but active and in good health, was residing on 160 acres of land in Hickory county in which she had a life estate under the will of her deceased husband, the remainder being in her children, of whom the plaintiff, usually called Jeff Hinkle, was one. She had lived on this farm since the death of her husband in 1889. During a portion of that time two other sons, Dan and Jim, had lived on the place with her; Jim, the last one to leave, had gone in the latter part of 1902. The plaintiff, Jeff, was about 39 years of age. His wife had died in 1901, leaving four small children, one of whom died shortly after the death of its mother; the remaining three were given over to the care of their grandmother, the defendant. While his mother was caring for and supporting his children, plaintiff was going about the country drilling wells. Success did not attend his efforts, however, and at the time first mentioned he came to his mother's sick and financially at his rope's end. He had no, property of any kind in the world except an interest in the well drill which he had been operating.

The defendant owned 160 acres of land known as the "Hunter land"; it adjoined the "homestead" of 160 acres upon which she resided. The two tracts were operated as one farm. Both were for the most part covered with timber and brush, and there was a small bit of bottom land on each. About 20 acres of the homestead and some 30 or 35 acres of the Hunter land were in cultivation. The homestead had a house and barn on it; the other tract was unimproved, except it may have been inclosed by an old rail fence.

When plaintiff came "home" he took charge of the farm with whatever live stock and farming utensils were on it, and since that time has continued to manage and control it as his own. He sold his interest in the well drill, and with the proceeds and an additional $150, which he borrowed on his mother's credit, bought a new one. For a few years thereafter at such odd times as he could spare from his farming, he drilled wells for others; his mother all the while, in addition to the housekeeping and the care of his children, was engaged in raising poultry. The proceeds arising from the sales of chickens and eggs were more than enough to pay the living expenses of the family. From the beginning until some time in 1910, all moneys coming into the family exchequer, whether from well drilling or the sales of live stock and other farm products, including the poultry and eggs were deposited in a bank to the credit of defendant. The relative contribution that came `from each of these several sources is not, however, disclosed by the evidence. In the year 1910 the bank account was transferred to plaintiff, and thereafter kept in his name.

There is some conflict between plaintiff and his mother as to the live stock on the farm when he went there. He says that there were a cow and calf, a yearling heifer, a hog, 9 or 10 head of sheep, and some chickens. She said that there were 3 cows, 2 calves, and a heifer "which would be a cow in a few months," "several hogs," and "a right smart bunch of sheep." Plaintiff testified that he sold live stock off the farm, whether it was this identical stock, or its increase, or both, does not appear. Nor can the amount of any such sales or of the earnings of the well drill, be ascertained from the evidence.

Plaintiff testified that he paid from $35 to $40 a year out of the common fund on account of his mother's personal needs; she denied that any such amount was expended for her.

Soon after getting control of the Hinkle farm and the personal property on it the tide of fortune seems to have turned, and plaintiff's efforts began to prosper. With the returns of the farm and the earnings of the well drill he from time to time not only made substantial improvements on the farm, but acquired lands of his own as well. On the homestead he repaired the house, built a "summer kitchen," a concrete cellar, a "smokehouse," a poultry house, a shed, and corncrib adjacent to the barn and drilled three wells. He also fenced this tract and cleared the brush off of about 30 acres of it, making it suitable for pasture. All of these improvements on the homestead were made at a cost to him of approximately $2,000. He put a post and wire fence around the Hunter land, and cleared and put in cultivation an additional 5 or 8 acres of it—all at an estimated cost of $380. There was evidence tending to show that the average annual rental value of the whole farm from 1903 to 1919 was $300.

The lands plaintiff acquired for himself were purchased at different times. These holdings aggregated 320 acres, and he paid for them in round numbers $2,000. On one of them he built a small house, but he and his family continued to reside with his mother, and were living there at the time this suit was instituted. At that time there were on the farm 40 head of cattle, 83 head of goats, 15 or 16 hogs, 3 head of horses, and farm implements, all of which plaintiff claimed as his own. He also had money in the bank.

When plaintiff first went to make his home with his mother and for an indefinite period thereafter she did all the work in connection with the housekeeping, cared for his children, "raised chickens, gathered eggs, churned butter, made garden," and supervised the marketing of the products or her labor. Plaintiff says, "Ma always worked." In 1905 plaintiff married the second time, and brought...