Hoffman v. Maplewood Baptist Church
| Decision Date | 15 November 1966 |
| Docket Number | No. 31832,31832 |
| Citation | 409 S.W.2d 247 |
| Parties | Olive L. HOFFMAN, Plaintiff-Respondent, v. MAPLEWOOD BAPTIST CHURCH, a Corporation, Defendant, and David F. Crossen, Administrator ad Litem of the Estate of Emil Ritter, Deceased, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Jesse L. Renderer, St. Louis, for defendant.
David F. Crossen, Clayton, for defendant-appellant.
Isaac E. Young, Maplewood, for plaintiff-respondent.
Plaintiff Olive L. Hoffman filed suit to reform a note and deed of trust executed by defendant, Maplewood Baptist Church, to Emil Ritter, now deceased, and Olive L. Hoffman in the sum of $19,000.00 from tenancy in common to joint tenancy with right of survivorship. Plaintiff was one of the co-executors of the estate of Emil Ritter and since the other co-executor was not joined, defendant David F. Crossen was appointed administrator ad litem of the estate of the said Emil Ritter, was permitted to intervene in said suit, filed answer and has appealed from the decree of the court reforming the note and deed of trust in favor of plaintiff as prayed in the petition. It is agreed, and the Court so finds, that the amount involved was $9500.00 and that this Court has jurisdiction of this appeal.
Plaintiff's first amended petition alleges in substance, that plaintiff was a niece of Emil Ritter, deceased, and for several years prior to the death of said Emil Ritter, 'cared for the deceased and took care of his household, personal and business affairs.' As a result of the relationship of the parties and the services rendered the deceased agreed to make the plaintiff a joint tenant with the deceased on a proposed note and deed of trust to be executed by the defendant church securing the balance due said deceased in connection with a sale of real estate by deceased to said defendant. It was alleged that deceased stated, prior to and at the time of the sale of the real estate and execution of the note and deed of trust, that the note and deed of trust were to be made out in the names of said Ritter and plaintiff with the right of survivorship and that the proceeds of the note were to go to plaintiff in case of death of said Ritter. It was further alleged that the note and deed of trust were made out at the direction of the attorney of the defendant church and its pastor, typed by a clerk in the office of the church and executed by said defendant church prior to the time that it was delivered to said Ritter. That the note and deed of trust were made out in the names of Emil Ritter and Olive L. Hoffman but inadvertently failed to include any provision for survivorship in favor of plaintiff in the event of the death of the said Ritter as previously agreed between the parties. It was further alleged that the parties mistakenly assumed that the note provided that the proceeds of the note would be paid to the survivor of Ritter and Hoffman and that the mistake existed at the time of the execution and delivery of the note to Ritter and that plaintiff did not learn that the wording of the note was contrary to the agreement until after the death of said Ritter. Plaintiff alleged that she was the holder of the note and deed of trust and has had possession since the execution thereof and prayed that the note and deed of trust be reformed so as to make plaintiff a joint tenant with right of survivorship therein.
The answer of the defendant church admitted the allegation of the petition while the answer of defendant Crossen, administrator, in effect admitted the execution of the note and deed of trust to Emil Ritter and Olive L. Hoffman but denied the other allegations of the petition.
We approach the consideration of the evidence in this case fully aware that while we try a suit in equity de novo and reach our own conclusion as to the weight of the evidence: Allen v. Smith, Mo.App., 375 S.W.2d 874, 880; Hampton v. Nichaus, Mo., 329 S.W.2d 794, 800; Trotter v. Trotter, Mo., 316 S.W.2d 482, 484; Masterson v. Plummer, Mo.App., 343 S.W.2d 352, 354; and that the inconsistencies and conflicts in the oral testimony were for the trial chancellor; Allen v. Smith, supra 880; Ethridge v. Perryman, Mo., 363 S.W.2d 696, 701; we are required to and do follow the admonition that due regard should be given to the superior opportunity of the trial chancellor to pass upon and judge the 'credibility and characteristics of the witnesses who testified before him.' V.A.M.R. Rule 73.01(d); V.A.M.S. 510.310, subd. 4; Allen v. Smith, supra 880; Peine v. Sater, Mo., 289 S.W.2d 101, 102; Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428; Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771. We are further aware that if we became convinced, upon consideration of all the eivdence, that a wrong decision has been made, we should not affirm the judgment. Kansas City Assemblage Co. v. Lea, Mo.App., 405 S.W.2d 241, 247 and cases there cited.
Since this case is heard de novo by this Court and we have the right to reach our own conclusions as to the weight of the evidence, as above stated, we are considering the evidence for the purpose of this appeal, as if all of defendants' objections as to the admission of testimony should have been sustained (without so deciding) and further are considering the evidence as if all the testimony of plaintiff herself had been refused or stricken (without deciding that all of such testimony was actually inadmissible). We are further considering, for the purpose of this appeal, that the trial court improperly considered testimony that was inadmissible and improper as shown by the Findings of Fact and Law of the trial court, as claimed by defendant, and are considering only the evidence properly admitted or not objected to.
The evidence of the plaintiff, there being no evidence offered by defendants, was to the effect that Emil Ritter, now deceased, owned certain property which defendant, Maplewood Baptist Church, desired to purchase. Rev. Kellogg, pastor of defendant church, started trying to acquire the property in the fall of 1959 when Ritter placed a sign in his yard that the property was available for sale. During the negotiations which ultimately culminated in the sale of the property Ritter asked the representatives of the church that it be arranged for the property to be paid for to him and plaintiff, Mrs. Hoffman, jointly. An earnest money contract was signed which the witnesses thought was in the names of Ritter and Hoffman.
On Saturday, July 17, 1961, Ritter notified Kellogg that he was ready to close the deal and Kellogg got the attorney for the church to make out the deed, note and deed of trust. Kellogg told the attorney to make the note and deed of trust in the names of both Ritter and Hoffman which was done. On the same day Mr. Claude Brown, Chairman of the Board of Trustees of the church, executed the note and deed of trust on behalf of the church and Brown, Kellogg and Mrs. Hoffman went to the nursing home where Ritter was being cared for, paid Ritter $5000.00, delivered the note and deed of trust and received the deed executed by Ritter.
The testimony of witnesses Claude Brown and Rev. Kellogg was to the effect that at the time of the delivery of the note and deed of trust Ritter read a part of the deed of trust and that Kellogg and Hoffman read parts of it to Ritter and explained it to Ritter. Both witnesses stated that Ritter stated that in the event anything happened to him the proceeds of the note were to go to plaintiff. Both also stated that Ritter asked whether, if anything happened to him, the proceeds of the note would be paid to plaintiff and that Kellogg showed him that both names were on the instruments and assured him that such would be the case. Upon such assurance Ritter said that he was satisfied that the instruments were as he wanted them and Ritter then executed the warranty deed, delivered it to Kellogg and Brown and accepted the note and deed of trust which he then handed to plaintiff and instructed her to take care of them. During the conversation concerning the note and deed of trust Ritter asked plaintiff if she understood them and if they were as they, Ritter and plaintiff, had discussed and if they were properly drawn, to which plaintiff answered in the affirmative.
Brown and Kellogg both testified that they understood and intended that by making the note and deed of trust in the names of both Ritter and Hoffman the entire proceeds would go to plaintiff Hoffman in the event Ritter died before Hoffman and that Kellogg had them so drawn because of the insistence by Ritter that they be drawn so the proceeds would go to Hoffman in the event anything happened to Ritter.
From the testimony above set out it is apparent that Ritter intended that the note and deed of trust be made to him and Mrs. Hoffman jointly with right of survivorship and not as tenants in common. It further is apparent that all the parties, including Olive L. Hoffman, mistakenly assumed that by making the note payable to Emil Ritter and Olive L. Hoffman and by including the name of Olive L. Hoffman in the deed of trust, they were creating a joint tenancy with right of survivorship in Hoffman in accordance with the agreement between Ritter and Kellogg acting on behalf of defendant church and further in accordance with the understanding between Ritter and Hoffman (referred to in the conversations at the time the note and deed of trust were delivered).
Where it is contended, as here, that the written instrument, by mutual...
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Flaspohler v. Hoffman, WD33612
...of the deed. There can be no dispute those two elements are the necessary elements for reformation of a deed. Hoffman v. Maplewood Baptist Church, 409 S.W.2d 247 (Mo.App.1966). Defendants Hoffman and Tri-County assert that that proof must be clear, cogent, and convincing, and beyond a reaso......
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...352 S.W.2d 161, 165(7) (Mo.App.1961). As the St. Louis Court of Appeals (now Eastern District) stated in Hoffman v. Maplewood Baptist Church, 409 S.W.2d 247, 250-251(3) (Mo.App.1966): "Where it is contended, as here, that the written instrument, by mutual mistake, does not express the true ......
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