Lewis v. Bowman

• Decision Date: 24 January 1942
• Docket Number: 8237.
• Citation: 121 P.2d 162,113 Mont. 68
• Parties: LEWIS v. BOWMAN et al.
• Court: Montana Supreme Court

121 P.2d 162

113 Mont. 68

LEWIS v. BOWMAN et al.

No. 8237.

Supreme Court of Montana

January 24, 1942

Appeal from District Court, Ninth Judicial District, Pondera County John Hurly, Judge.

Action by F. F. Lewis against Eva Bowman, individually and as administratrix of the estate of Leah H. Lewis, deceased, and another, to obtain a decree adjudging the plaintiff to be the equitable owner of land. From a judgment in favor of the named defendant, the plaintiff appeals.

Affirmed.

Speer & Hoffman and G. G. Harris, all of Great Falls, for appellant.

D. W Doyle, of Conrad, and Church & Jardine, of Great Falls, for respondent.

JEREMIAH J. LYNCH, District Judge.

This action was brought by the plaintiff, F. F. Lewis, against the defendants, Eva Bowman, Loraine Storm, and Eva Bowman, as administratrix of the estate of Leah H. Lewis, deceased, to obtain a decree adjudging him to be the equitable owner of Lots 1, 2 and 3 in Block 9 of the Original Townsite of Brady Pondera County, Montana, and that they, the defendants, are trustees of the legal title thereto for his use and benefit. The defendant, Loraine Storm, defaulted. Following the trial of the cause as between the plaintiff and the defendants, Eva Bowman and Eva Bowman, as administratrix of the estate of Leah H. Lewis, deceased, judgment was rendered and entered in favor of said defendants. From the judgment the plaintiff has prosecuted an appeal to this court.

It appears from the record that F. F. Lewis and Leah H. Lewis were married in St. Paul, Minnesota, on the 30th day of January, 1908. At the time he was a resident of Minnesota and she was a resident of Iowa. They lived together in Minnesota until October, 1910, when Mr. Lewis moved to the town of Brady, Montana. In December, 1910, he was joined by Mrs Lewis who had been on a visit to her parents in Iowa. For a period of a year or more they occupied an apartment over what was known as Weldon's store, but being desirous of acquiring a home of their own Mr. Lewis in the spring of 1911 negotiated with the owners of Lot 2 with the view of purchasing the same. A price of one hundred dollars was agreed on. The sale was consummated on the 16th day of October, 1911, when Thomas O. Larson and Alexander Truchot, the owners, together with their wives executed a deed to the lot, title thereto being taken in the name of Leah H. Lewis at the instance of her husband. The grantors accepted the promissory note of F. F. Lewis for one hundred dollars in payment of the purchase price. The deed was delivered to him and on the 2nd day of January, 1913, he filed the same for record in the office of the county clerk of Teton County, Montana. The Townsite of Brady was then situate in Teton County. Since 1919, when Pondera County was created, its situs has been in the latter.

In the fall of 1911 construction of a dwelling house on Lot 2 was begun. By the spring of 1913 the work had progressed sufficiently to permit Mr. and Mrs. Lewis to occupy the building. From then to the 16th or 17th of September, 1937, they lived in it as husband and wife.

In July, 1913, they discussed the desirability of possessing Lot 1 which adjoined Lot 2 on the east, and Lot 3 which adjoined it on the west. Accordingly, on or about the 7th day of August, 1913, these lots were purchased. The deed was signed by Thomas O. Larson, Dena H. Larson, Alex Truchot and Mary E. Truchot, as grantors, and at the direction of her husband, Leah H. Lewis was named therein as grantee. The consideration was paid by F. F. Lewis, delivery of the deed was made to him and on August 16, 1913, he filed it for record in the office of the county clerk of Teton County. The property involved was assessed to the plaintiff until 1919 and thereafter to Leah H. Lewis. The taxes levied against it up to and including 1934 were paid by him. He also paid the first installment of the 1935 taxes and the first installment of the 1936 taxes. During all this time Mrs. Lewis had no income of her own and any money she ever received came from her husband.

On the 19th day of March, 1935, the plaintiff assuming to act as the agent of his wife, furnished the county assessor of Pondera County with a statement in which were listed for assessment Lots 1, 2 and 3 together with some personal property. He signed her name to the affidavit affixed to the statement. The affidavit was in the form prescribed by section 2004, Revised Codes of Montana 1921, that is to say it averred, among other things, that affiant at twelve o'clock m. on the first Monday in March last owned, claimed, possessed or controlled the listed property.

As has been stated, F. F. Lewis and Leah H. Lewis intermarried on the 30th day of January, 1908. Two children were born to them, Eva, now Mrs. Bowman, on July 26, 1909, and Loraine, now Mrs. Storm, some time in the year 1915. After a time, unfortunately, domestic infelicity made its appearance and so in the early part of September, 1937, while Mr. Lewis was away in the east on business, his wife instituted a suit for divorce against him. He returned to his home in Brady on or about the 16th day of September, and on learning of the proceeding the next morning he left his home never to return. The case was contested and a trial was had on the 28th day of February and the 1st and 2nd days of March, 1938, which later resulted in a decree divorcing the couple. Mrs. Lewis died on or about the 8th day of August, 1939, and thereafter Mrs. Bowman was appointed administratrix of her estate by the District Court of Pondera County. The complaint in this suit was filed on the 3rd day of November, 1939.

Mr. Lewis, who took the stand in his own behalf, testified, among other things, that immediately following his arrival in Brady he engaged in the grain business. In or about the month of April, 1911, he and his wife discussed the advisability of buying a lot and erecting a house thereon. As he did not have enough money to meet the entire cost of the building she suggested that he borrow one thousand dollars from her folk. He then told her that when the lot was purchased he would place the title in her name as security for the loan when made, and that upon its being paid she should deed the property to him. She assented to the proposed arrangement. On the 28th day of June of the same year, in response to the request of Mrs. Lewis, he received a draft from her father for the sum of one thousand dollars. He thereupon executed a note for a similar amount and forwarded it to his father-in-law. The purchase of Lot 2 followed. Before the end of 1917 the note with interest was fully paid and Mrs. Lewis was so informed. The purchase of Lots 1 and 3 was made under conditions similar to those which surrounded the purchase of Lot 1. He never actually handed the deeds to Mrs. Lewis but kept them in his safe which was cracked in the summer of 1930 and its contents rifled, and he never intended to vest the ownership of the property in her. He carried the insurance on the house and paid the premiums. Subsequent to 1913 a garage, an ice house, a chicken house, a barn and a children's play house were placed on the ground. The cost of all improvements was met by him. In 1930 or 1931 he asked his wife to deed the property to him in accordance with their agreement, at the same time stating that he was about to borrow a lot of money and had listed the house as one of his assets. At first she made no reply, she just walked off, but later she remarked to him "why you have all the rest of the property in your name, why should you have the house." This he took to be a refusal on her part to convey. Not until then did he indicate a desire to have the lots in question deeded to him. She never complied with the request. When he had finished paying his father-in-law in 1917 he did not ask his wife for a deed; he never thought of the matter at the time. From 1935 on to 1937 he owed more than one hundred thousand dollars. At the time the divorce action was begun the improvements on the lots had a value of about seven thousand dollars. Some time in 1939, after Mrs. Bowman qualified as administratrix, the property was sold for the sum of $1,850. In a suit for conversion which was tried in March, 1939, Mrs. Lewis testified that Mr. Lewis came home in the summer of 1936 and said to her that the property stood in her name and therefore was her property, and also that he then gave her everything he had, including the furniture in the house. That was the first time she claimed ownership of the property in his presence.

Mrs. Loraine Storm testified in behalf of the plaintiff and stated among other things that she was present in the home some time in the year 1930 or 1931 when a conversation occurred between her father and mother regarding property. He said he wanted her to deed the house to him and she replied as all of the rest of the property was in his name she did not see why she should not keep the house in hers. Shortly after her mother stated to her that the house stood in her name and that she proposed to keep it that way; that she would make her father fight for it before she would deed it back to him. In or about 1930 her father told her mother he intended to build a basement under the house. She did not see the necessity of going to the expense even after it was pointed out to her that the house was settling with consequent damage to the floors and plastering. He caused the work to be done anyway. In the conversion action which was tried in March, 1939, and in which her mother was plaintiff and she and her father and others were defendants, her mother testified that her father gave her the house and contents in 1936. She was a witness for her father in the divorce suit and she did not attend her mother's funeral.

Eva Bowman was...