Hoehn v. Hoehn
| Decision Date | 30 July 1927 |
| Docket Number | 25814 |
| Citation | 297 S.W. 954 |
| Parties | HOEHN v. HOEHN et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied September 16, 1927.
Randolph & Randolph and William M. Morton, all of St. Joseph, and Paul D. Higbee, of Kirksville, for appellant.
Mytton & Parkinson, of St. Joseph, for respondents.
Action in equity, brought by plaintiff against his father and sister, as defendants, to set aside a warranty deed executed and delivered by defendant Henry Hoehn to his daughter, the defendant Leona M. Hoehn, on August 16, 1920, and filed for record in the office of the recorder of deeds of Buchanan county on May 10, 1921, conveying to said daughter all of lot 15, block 1, in Hall's second addition to the city of St. Joseph, Mo.; or, in the alternative, to impress and charge said described real estate with a lien for moneys claimed to have been advanced by plaintiff in pursuance of an alleged oral contract or agreement between plaintiff and his father, Henry Hoehn.
The substantive allegations of plaintiff's bill or petition are as follows:
'Plaintiff says that about the 1st day of October, 1900, the said Henry Hoehn, being unable for the reasons above stated and failing to provide necessaries for his family, and realizing that this plaintiff had paid out large sums of money to assist the said Henry Hoehn and his family, did enter into an agreement by the terms of which it was agreed that the plaintiff herein, during the life of the said Henry Hoehn and the life of his wife, the mother of this plaintiff, should pay all taxes as the same became due on said premises, should keep the said real estate in repair and improve the same when able so as to increase the comfort of the family and to look after the same in a general way, and to care for and protect Theresa Hoehn, the mother of this plaintiff, and wife of said defendant Henry Hoehn, and the mother of the defendant Leona M. Hoehn, and to see that the said Leona and her sister, who were then young children, did not, during their minority suffer for the necessaries of life, and for such education and assistance as was necessary.
'Plaintiff further says that, in consideration thereof, it was agreed that the plaintiff should continue to live in and occupy said premises as a home, and that the said real estate should either become his or be liable for the repayment to him of the amounts advanced by him, the plaintiff, under the terms of the said agreement, and at the death of said Henry Hoehn, the said property should go to and become the property of this plaintiff, but in the event the said Theresa Hoehn outlived the said Henry Hoehn, that she should be provided for and cared for by the plaintiff until her death.
'The plaintiff says that after entering into said agreement, the said Henry Hoehn continued to be of almost no earning capacity whatever, and shifted the burden of the care of the family onto the shoulders of this plaintiff, so that he was and continued to be the breadwinner of the family, and the one who took care of the property, kept it in repair, and paid the taxes during all of the period since the said agreement was entered into.
'Plaintiff says that thereafter and on the 28th day of May. 1919, Theresa Hoehn departed this life, and that this plaintiff continued to take care of the said premises and the said property until his care of same was interfered with as hereinafter set forth. * * *
'Plaintiff says that since the death of his said mother, the defendants, conspiring to cheat and defraud him out of the large sums of money so expended as aforesaid, and pursuant to their design to cheat and defraud him, the said Henry Hoehn, did on the 16th day of August, 1920, make, execute, and deliver to the said Leona M. Hoehn a deed, whereby he did attempt to convey to the said Leona M. Hoehn the said real estate, which said deed was not placed of record until the 10th day of May, 1921, when the same was filed for record in the office of the recorder of deeds, in and for Buchanan county, Mo., and recorded in Book 526, at page 272.
'And that the said Leona M. Hoehn did take said deed with the full knowledge of the rights of the plaintiff in said property, and since the taking of said deed has constantly quarreled with the plaintiff, and has undertaken to violate the agreement which she well knew had been entered into between said defendant Henry Hoehn and this plaintiff, and has undertaken to appropriate the property for her own use and to exclude him therefrom.
'Plaintiff says that by reason of said conveyance the defendants have violated the terms of said agreement, although both of the said defendants have been beneficiaries from said agreement, and, unless this honorable court shall set aside and hold for naught said conveyance, have made it impossible for the said Henry Hoehn to comply with the said agreement.
'Plaintiff says that the said Henry Hoehn is totally irresponsible financially, and plaintiff has no adequate remedy at law to correct and prevent the wrong and injury done to him and threatened to him.'
Attached to said petition, as an exhibit thereto, is an itemized statement of account of the moneys claimed to have been advanced and paid out by plaintiff in pursuance of said oral agreement, aggregating $ 9,273.89. The answer of defendants is a general denial.
The facts upon which this family controversy was tried and submitted, briefly stated, are these: The Hoehn family consisted of Henry Hoehn, the father; Theresa Hoehn, the mother; three sons, Charles H. Hoehn (plaintiff), William P. Hoehn, and Alfred Hoehn; and twin daughters, Cecile Hoehn (now Mrs. Maurice P. Murphy) and defendant Leona M. Hoehn. Plaintiff, Charles H. Hoehn, is the eldest child and a bachelor, about 52 years of age. He went to work and began earning a livelihood when he was a lad of 10 or 12 years, and has continued so to work in various employments with increased remuneration until the trial of this action. The record indicates that plaintiff is a man of no little business ability and acumen, having held positions of trust and responsibility during his increasing years of business experience. His two brothers, William P. and Alfred, married shortly after reaching their majority and assumed domestic obligations and duties of their own. His sister, Cecile, likewise married, when she was 23 years of age, and became the wife of Maurice P. Murphy. The other sister, defendant Leona M. Hoehn, is single and unmarried. The twin sisters were born in April, 1888. When defendant Leona M. Hoehn was about 25 years of age, she obtained employment outside the family and had been so employed for 10 or 11 years before the trial of this action. Her sister, Cecile, upon her marriage, left the family roof to reside elsewhere with her husband, but returned at intervals of more or less duration to reside for a time under the family roof. The father, defendant Henry Hoehn, was a house painter by vocation. The record tends to show that he worked at his vocation somewhat desultorily and brought in but little in the way of pecuniary wealth or increment to the family treasury, but there is testimony on behalf of defendants that what little he earned, after deducting his necessary expenses, was turned over by him to his faithful helpmate, the wife and mother, Theresa. There is some testimony that the father was more or less fond of the 'cup that cheers,' and that, on occasions, he imbibed perhaps a little to freely of the contents of 'the cup,' which inclination on his part appears to have been the cause of some family strife and friction. Several witnesses, however, acquaintances of the father of long standing, testified on behalf of defendant that Henry Hoehn was an industrious man and temperate in his use of intoxicating beverages. The wife and mother, Theresa Hoehn, died in May, 1919, and thereafter plaintiff, his father, Henry Hoehn, and his sister, Leona M. Hoehn, continued to occupy the family homestead, as did, also at intervals, the married daughter and sister, Cecile, and her husband, Maurice P. Murphy. Defendant Henry Hoehn was 72 years of age at the time of the trial. He received an injury in 1911, which has rendered him unable to work or to earn any substantial amount of money or wages.
The real estate in controversy was purchased by defendant Henry Hoehn, in 1879, for the sum of $ 100. Upon the unimproved or vacant lot so purchased, Henry Hoehn built a small 2-room house in which the family resided for several years. Subsequently, certain additions, consisting of a basement, a second story, a heating plant or furnace, a bathroom, and the necessary plumbing and fixtures, were added to the original structure, so that, at the time of the trial, the improvements consisted of a 7-room modern house or place of residence. During all such time, and prior to the execution and delivery of the warranty deed in controversy, the record title to the real property and the improvements thereon remained in Henry Hoehn, the father, who was the original purchaser of the vacant or unimproved lot in 1879.
The record before us strongly indicates that the Hoehn family is a 'house divided against itself.' On the one side, and aligned with the plaintiff herein, is his sister, Cecile, now Mrs. Maurice P. Murphy; on the other side, and aligned with the defendants Henry Hoehn (the father) and Leona M. Hoehn (the other sister and daughter), are plaintiff's two brothers, William P. and Alfred Hoehn. The division of the family therefore appears to bear the proportion of 2 against 4, or vice versa. Plaintiff's testimony respecting the oral agreement upon which this action in equity rests is as follows:
'This agreement occurred, as I said before, approximately October 2,...
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