Johnson v. Johnson
| Decision Date | 03 April 1944 |
| Docket Number | No. 38792.,38792. |
| Parties | FRED L. JOHNSON v. WALTER T. JOHNSON, W. OSCAR JOHNSON, MINNIE GRAVES, FANNIE PITTMAN, ANNA M. GAUSE, and WALTER T. JOHNSON as Guardian and Curator of FRANK C. JOHNSON, an incompetent, Appellants. In the Matter of the Final Settlement of W.T. JOHNSON, Administrator with the will annexed of the Estate of CHARLES F. JOHNSON, deceased. |
| Court | Missouri Supreme Court |
Appeal from Dallas Circuit Court. — Hon. C.H. Jackson, Judge.
AFFIRMED.
Charles Farrar and Wm. L. Vandeventer for appellants.
(1) Under the doctrine of "Equitable Retainer" the distributive or inheritable share of an heir may be retained to offset his indebtedness to the estate though the indebtedness be barred from collection by suit because of the Statute of Limitations. In re Lietman's Estate, 149 Mo. 112, 50 S.W. 307, 73 Am. St. Rep. 374; Leach v. Armstrong, 156 S.W. (2d) 959; Duffy v. Duffy, 155 Mo. 144, 55 S.W. 1002; Ayen v. King, 168 Mo. 244, 67 S.W. 558, 90 Am. St. Rep. 452; Trabue v. Henderson, 79 S.W. 451, 180 Mo. 616; Traders' Bank v. Dennis' Estate, 221 S.W. 796; State ex rel. Toller v. Ennis, 7 S.W. (2d) 737; Gorg v. Rutherford, 31 S.W. (2d) 585; Thompson v. McCune, 63 S.W. (2d) 41; Studer v. Horlan, 109 S.W. (2d) 687; State ex rel. Howe v. Hughes, 123 S.W. (2d) 105, 343 Mo. 827; Ford v. O'Donnell, 40 Mo. App. 51; Wright v. Green, 144 S.W. 437, 239 Mo. 449; Hopkins v. Thompson, 74 Mo. App. 401. (2) The burden of proving payment is on the party that asserts it, in this case, on the plaintiff. To authorize an inference of payment, the facts and circumstances must all point one way and be inconsistent with any other reasonable hypothesis than that payment was made. Emory v. Emory, 53 S.W. (2d) 908; Franklin County Oil Co. v. Weber, 104 S.W. (2d) 676; Griffin v. Priest, 137 S.W. (2d) 685; Earhart v. A.O. Thompson Lbr. Co., 140 S.W. (2d) 750; Drake v. Critz, 83 Mo. App. 650; Dorroh v. Wall, 297 S.W. 706; Oldham v. Henderson, 4 Mo. 295. (3) Payment of part of a fixed and liquidated indebtedness does not extinguish the debt, even though the creditor at the time agrees to it, as there is no consideration for the releasing of the remainder. Wayland v. Pendleton, 85 S.W. (2d) 492, 337 Mo. 190; In re Mosbacher, 31 S.W. (2d) 225; Friedman v. State Ins. Co., 108 S.W. (2d) 156; Roland v. Gossman, 44 S.W. (2d) 658; Pollman v. St. Louis, 47 S.W. 653, 145 Mo. 651; Wetmore v. Crouch, 51 S.W. 738, 150 Mo. 671; Enright v. Schoden, 242 S.W. 89.
Theodore Scott, James P. Hawkins and Roscoe C. Patterson for respondent.
(1) The contract of March 11, 1940 and the promissory note for $5500 secured by deed of trust executed by plaintiff in pursuance thereof constitutes a complete accord and satisfaction of the balance then due on the notes in question. Where parties to a contract account together and strike a balance and the debtor gives his written obligation to pay such balance, this settlement cannot be reopened except upon clear proof of fraud or mistake, or of express understanding that certain matters were left open for future adjustment. Where such an account is thus settled the presumption is that all previous dealings between the parties relating to the subject matter of the account are adjusted. Pickel v. St. Louis Chamber of Commerce Assn., 10 Mo. App. 191; Dempsey v. McGinnis, 249 S.W. 662; Caneer v. Kent, 119 S.W. (2d) 214. (2) If as contended by appellants the contract and deed of trust of March 11, 1940 had no relation to the notes in controversy then more than twenty years has elapsed since all of the notes fell due and the common law presumption obtains that the notes have been paid, and this presumption is independent of and unaffected by the Statute of Limitations. 1 Greenleaf on Evidence (14 Ed.), sec. 39, p. 54; Williams v. Mitchell, 112 Mo. 300; Carpenter v. Kendrick, 252 S.W. 646. (3) Upon that theory of the case more than twenty years has elapsed since all the notes in controversy became due or any effort made to collect them. True, each of the notes bears an endorsement upon the back showing a small payment in 1925 in the handwriting of Charles F. Johnson, but such endorsements do not establish that payment was actually made. There must be independent evidence that payment was actually made. Crow v. Crow, 124 Mo. App. 120; Berryman v. Beckler, 173 Mo. App. l.c. 346; Regan v. Williams, 185 Mo. 620; Caneer v. Kent, 119 S.W. (2d) 214. (4) A court of equity cannot look with favor upon such a stale claim as this. A demand that is first asserted after an unexplained delay of such great length as to render it difficult or impossible for the court to ascertain the truth of the matters in controversy and do justice between the parties, or as to create a presumption against the existence or validity of the claim or a presumption that it has been abandoned or satisfied is a stale demand. Snow v. Funck, 41 S.W. (2d) 2. (5) The right of retainer cannot be claimed in respect to a debt of over twenty years standing, where the lapse of twenty years raises a presumption of payment. Sartor v. Baty, 25 S.C. 293. (6) The defendant, Minnie Graves, was a competent witness as to when, where and under what circumstances she found the notes in question after her father's death. Section 1887, Revised Statutes of Missouri, 1939, should be construed in accordance with the purpose of enactment, which was not to render incompetent for all purposes the surviving party but only to the extent that his testimony might be questioned if living. Weirmuller v. Scullin, 203 Mo. 466; Elsea v. Smith, 273 Mo. 396; Sturdy v. Smith, 132 S.W. (2d) 1033; Tarlton v. Johnson, 138 S.W. (2d) 49; Mann v. Balfour, 187 Mo. 290; Eaton v. Cates, 175 S.W. 953; Burns v. Polar Wave, 187 S.W. 147.
The appeals in these two cases were consolidated by the parties and are brought up on one record. The first is a suit to partition land in Dallas and Greene counties, aggregating about 7500 acres, 82 of the tracts belonging to Charles F. Johnson and 20 to his wife Rebecca P. Johnson, both deceased. That suit was brought by the respondent, Fred L. Johnson, as one of the seven children and heirs of the couple. The six other children were defendants and are appellants in that suit. The other proceeding was on exceptions filed by respondent Fred P. Johnson to the final settlement of the appellant Walter T. Johnson, as administrator c.t.a. of the estate of the said Charles F. Johnson, deceased.
The appellants' contention in the two cases was that the respondent had no undivided interest in either the land or the personal estate of his parents, because he was indebted to the estates of both in an amount exceeding his distributive share on eight promissory notes, four of which had been owned by his mother and four by his father. Their answer sounded in equity. The respondent's reply was that: (1) all the notes were barred under the statute of limitations; (2) the claims thereon were so stale as to raise a presumption of payment; (3) and they had been fully paid, satisfied and discharged by him and a complete accord and satisfaction had thereon, on March 11, 1940. The only substantial issues on this appeal are whether the evidence, and the weight thereof, was sufficient to sustain the chancellor's finding in favor of respondent.
As will be seen, there was no dispute about the authenticity, ownership and amount due on the notes; nor on appellants' right to have them off-set against the respondent's share in the land and estate, if they had not been discharged in one of the ways alleged by respondent. The notes were as follows:
Notes Belonging to Rebecca P. Johnson, Deceased
Date Maturity Principal No. of Date and amt. Amt. due Mch
credits last credit 11, 1940, date
--------- -------- --------- ------- ------------- of settlement
Mch. 3, 1903 1 year $ 300.00 5 Jan. 1, 1925 $25.73 $ 3727.67
Mch. 10, 1906 90 days 600.00 9 Jan. 28, 1925 22.95 6463.35
Jly. 3, 1908 30 " 350.00 8 Jan. 24, 1925 23.19 2728.78
Mch. 24, 1911 60 " 1200.00 6 Jan. 30, 1925 8.93 8905.01
________ __________
2450.00 $21,824.81
Notes Belonging to Charles F. Johnson, Deceased
Jan. 31, 1915 Demand 1000.00 24 Jan. 21, 1925 27.19 5377.02
Jan. 31, 1915 " 1000.00 24 Jan. 25, 1925 22.95 5490.61
Nov. 16, 1917 " 400.00 5 Jan. 19, 1925 25.33 1808.99
Aug. 1, 1918 " 297.55 1 Jan. 1, 1925 25.30 1400.66
________ __________
2697.55 $14,077.28
These eight notes all bore 8% compound interest and all except one were made payable to one or the other of two banks in Buffalo, Missouri. All were severally endorsed by the payees to Mr. or Mrs. Johnson, as the case might be, except the $300 note, which bore the notation that it was "taken up" by Mrs. Johnson on March 3, 1907. The four notes owned by her, along with her realty and other personalty, were devised by her will to her husband (with some entailments that are immaterial here). She predeceased him in August, 1915, long before the occurrence of the crucial events involved herein. All the credits except the last one on each of the eight notes were made soon after the date of the note, the latest of these earlier credits being in 1918. Then followed a long period of years without any credit until the last credits were entered in January, 1925, as shown above. It appears that all credits were for interest only. In nearly every case the last credit on each note was shown to be for a stated number of...
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