Johns v. McNabb

• Decision Date: 10 March 1952
• Docket Number: No. 42438,No. 2,42438,2
• Citation: 247 S.W.2d 640
• Parties: JOHNS v. McNABB
• Court: Missouri Supreme Court

Page 640

247 S.W.2d 640

JOHNS v. McNABB.

No. 42438.

Supreme Court of Missouri, Division No. 2.

March 10, 1952.

Rehearing Denied April 14, 1952.

Russell N. Pickett, Eugene E. Andereck, Phil Hauck and Pickett & Pickett, Trenton, for plaintiff-appellant.

L. E. Atherton, Milan, for respondent.

BARRETT, Commissioner.

Formerly, 1936 to 1949, the plaintiff and the defendant were husband and wife. The plaintiff wife became enamoured of her neighbor, Virgil Johns, and in June 1949, upon the petition of the husband, the McNabbs were divorced. Since the divorce the wife has married Johns and the husband has married another. At the time of the divorce the plaintiff and the defendant owned a 200 acre farm in Sullivan County as tenants by the entirety of the approximate value of $14,000, and there was personal property which the trial court found to be of the value of $3,504.50. Prior to the husband's suit for a divorce the parties entered into a written contract in which the wife agreed, in the event of a divorce, to relinquish and transfer to the husband all her interest in the real estate. On the day the contract was signed the husband and wife executed a warranty deed conveying the farm to the husband. After the divorce the wife also executed a quitclaim deed conveying the 200 acre farm to the husband. About a year after the divorce and after the second marriages the wife instituted this action against her former husband. The purpose of this action is to cancel the contract and set aside the deeds upon the grounds of fraud, duress and lack of consideration, and to partition the real estate. The wife also claimed that they were tenants in common of personal property of the value of $15,000 and she sought an accounting and partition of the personal property. Upon the counts relating to the real estate the trial court found 'the issues for the plaintiff,' canceled the contract, set aside the deeds and ordered partition of the land. As to the enumerated personal property of the value of $3,504.50 the trial court found the issues for the defendant. The former wife appeals from the judgment relating to the personal property and the former husband appeals from the judgment relating to the real estate.

As to the real estate, counsel for McNabb, the former husband, insist that there was no conflict in the testimony and that there is no evidence to support the court's finding and decree canceling the contract and setting aside the deeds. He also insists that there is no evidence from which it could be found that Mrs. Johns had any interest in the claimed personal property, hence that phase of the judgment should be affirmed. On the other hand counsel for Mrs. Johns insist that there was evidence in support of her claim to the personalty and that the court erred in denying her claim. As to the finding and decree with respect to the real estate it is urged that this court is bound by the trial court's finding and that only questions of law are reviewable upon this appeal. Essentially, however, this is a suit in equity and this court is charged with the duty of reviewing the cause anew, of reviewing the evidence and determining its weight and value, with deference to the findings of the trial court. Thomason v. Beery, 361 Mo. 424, 235 S.W.2d 308, 309; Gardine v. Cottey, 360 Mo. 681, 693, 230 S.W.2d 731, 18 A.L.R.2d 1100.

In our view it is unnecessary, with reference to the real estate, to particularly consider or emphasize any questions concerning fraud or duress in the execution of the contract and deeds. It is doubtful that there is any evidence of fraud and the evidence of duress is largely dependent upon the inferences and implications to be drawn from the circumstantial evidence, the mental distress of the parties and their exigencies during the execution of the contract, the procurement of the divorce and the subsequent execution of one of the deeds. The principal question relative to the real estate, the one briefed and argued here, and the one determinative of this phase of the cause, is whether there was any consideration for the contract and deeds.

After the husband became aware of the relationship between his wife and Johns and their clandestine meetings there were arguments and discussions as to divorce, separation and reconciliation. The husband had consulted a lawyer and on the 7th day of April 1949 the husband and wife appeared at his lawyer's office and the lawyer, after making notations as to what the parties desired in their separation agreement, drafted the written contract which the parties then executed. The contract recites their separation and desire to settle their property rights. It then describes the 200 acre farm which 'the parties own as tenants by entirety' and stipulates that the wife 'agrees to relinquish all of her right, title and interest' in the property and for that purpose agrees to execute and deliver a warranty deed contemporaneously with the execution of the contract, subject to an indebtedness of $800. She also agreed, in the event of a divorce to either party, to execute and deliver to her husband a quitclaim deed to the property. By the terms of the contract the wife was to have as her absolute property 'the parties' living room suite of two pieces, devenport and chair * * * 100 hens to be taken by her from the parties' flock of chickens at any time after June 1, 1949.' The husband was given the care and custody of their infant children, Sandra Sue, age eight years, and Donald Ray, age three years, and the wife 'shall have the right to visit said children and to have said children visit her at reasonable and proper intervals,' on a half time basis when they were not in school. The last paragraph of the contract recites that 'this is a full and complete property settlement between the parties of all their property rights, including release of dower and alimony, growing out of their status as husband and wife, so that neither party shall hereafter have any claim against the other of any kind or nature by reason of being husband and wife.' On the same day the husband and wife executed the warranty deed, 'in consideration of one dollar and other valuable consideration,' by which they conveyed all interest in the land to the husband, Cleo McNabb.

After the execution of the contract and deed and after a frustrated attempt at reconciliation it was finally determined that the husband and wife would separate. The wife had no grounds for a divorce, and some time after the execution of the contract the lawyer filed a suit for a divorce for the husband and the divorce was granted on the 17th day of June 1949. On the same day the wife executed the previously prepared quitclaim deed conveying all her interest in the 200 acre farm to her former husband. The divorced wife and Johns were married in November 1949, the husband was married again in February 1950 and the former wife instituted this action the following April.

As to the consideration for the contract, it must first be borne in mind that upon the granting of the divorce the husband and wife became tenants in common of the 200 acre farm they had previously owned as tenants by the entirety, each owned an undivided one half interest in the land as they both well knew and were advised. Joerger v. Joerger, 193 Mo. 133, 91 S.W. 918; Russell v. Russell, 122 Mo. 235, 26 S.W. 677. By reason of the husband's being granted a divorce the wife lost the rights in his property accruing to her by reason of the marriage, Mo.R.S.1949, Secs. 452.090, 469.200, V.A.M.S., but her interest in the estate by the entirety was not dependent on her good...