Liflander v. Bobbitt, 34966.

• Decision Date: 14 December 1937
• Docket Number: No. 34966.,34966.
• Citation: 111 S.W.2d 72
• Parties: LIFLANDER v. BOBBITT.
• Court: Missouri Supreme Court

111 S.W.2d 72

LIFLANDER v. BOBBITT.

No. 34966.

Supreme Court of Missouri, Division No. 1.

December 14, 1937.

Appeal from Circuit Court, St. Louis County, Division No. 4; Robert W. M'Elhinney, Judge.

Action by Michael S. Liflander against Joseph W. Bobbitt, also known as James W. Bobbitt, also known as William W. Bobbitt and also known as William Bobbitt. Decree for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

Dubinsky & Duggan, of St. Louis, for appellant.

R. H. Stevens, of Clayton, for respondent.

HYDE, Commissioner.

This is an action to ascertain and determine title to lots in St. Louis county. Plaintiff claimed fee-simple title through a sheriff's deed under execution on judgment against J. W. Bobbitt, doing business as Bobbitt Wrecking & Supply Company. A son of J. W. Bobbitt, William W. Bobbitt, was allowed to file answer claiming fee-simple title under a warranty deed from the former record owner. He asked that plaintiff's deed be declared void, and that title be quieted in him. The court found for William W. Bobbitt, and entered a decree declaring title to be vested in him, declaring the sheriff's deed null and void, and permanently enjoining plaintiff from asserting any claim to the property. Plaintiff has appealed from this decree.

Both parties brief the case as converted to equity by the affirmative relief asked by defendant William W. Bobbitt, and we so consider it. The judgment, under which the levy was made, was entered against J. W. Bobbitt December 30, 1929. There is no evidence that he had any other debts, prior to that time, except secured debts on the property involved, namely, lots 53 and 54, block 3, Brentwood subdivision, and on other real estate. He said the total gross income of his wrecking and supply business in 1928 was $25,000. On March 11, 1922, J. W. Bobbitt (Joseph W. Bobbitt) arranged to purchase lot 54 from the Kotsrean Realty Company for $250. A contract was made, providing for monthly payments of $5 until paid in full (at which time deed was to be delivered), in which the purchaser was designated to be Wm. W. Bobbitt. The signature also appears as "Wm. W. Bobbitt." Defendant J. W. Bobbitt admitted he wrote this signature. He said: "I wrote that but it is for my son." William W. Bobbitt was, at that time, eleven years old. On March 5, 1923, J. W. Bobbitt arranged to purchase lot 53 from the Kotsrean Realty Company for $250. A contract similar to the first one was made, but the purchaser was designated merely as Wm. Bobbitt. The contract, however, was signed "Will Bobbitt" and "Jossie Bobbitt." These signatures appear to be written by one person, and J. W. Bobbitt denied that he wrote them.

On May 2, 1923, a new contract was prepared, covering both lots, in which the purchaser was designated "Wm. W. Bobbitt." This contract was signed "Wm. Bobbitt." J. W. Bobbitt said that the signature of the last contract of May 2, 1923, was his signature. On January 4, 1926, the record owner, A. Descher, made a warranty deed for both lots to William W. Bobbitt. A first trust deed was made to secure $500, and a second trust deed for $540. The name William W. Bobbitt was signed to both by J. W. Bobbitt. It was not shown whether or not Jossie Bobbitt signed the trust deeds. The trust deeds covered both original lots and also a third lot, purchased later. Mr. Kotsrean, who transacted this business with J. W. Bobbitt, said that he knew J. W. Bobbitt under the name of William W. Bobbitt. J. W. Bobbitt said that his son's maternal grandfather gave William W. Bobbitt $500 when he and his son visited him in Tennessee in 1926, and that his grandfather had "mentioned that seven or eight years before he gave it to him." J. W. Bobbitt further testified: "I told him (Kotsrean) I was buying it for the boy and as soon as he got the money he would pay it off. * * * I thought I had a right to sign it because he was a minor. * * * Nobody knew about it but me and Mr. Kotsrean and he knew I bought it for the boy and that is the only one that knew about it. * * * I signed that because he was a minor and Mr. Kotsrean would not deal with him." Kotsrean said that he had "no recollection" of J. W. Bobbitt telling him that he was buying it for his son, and said that he always knew him as William W. Bobbitt; that he had him do some wrecking jobs for him; and that he had also recommended him to others for such work. J. W. Bobbitt said that he made the payments out of his own funds for his son on the strength of the money coming from his grandfather. J. W. Bobbitt had seven children; the youngest was born in 1924. William W. Bobbitt was born in 1911. There was no explanation as to why William was chosen over his brothers and sisters to receive gifts from either his father or grandfather.

About the time that the warranty deed and mortgages were made, J. W. Bobbitt erected a building on the lots. This building burned September 14, 1926. There were two insurance policies on the building; one policy for $2,000, to William Bobbitt, and a $1,000 policy to J. W. Bobbitt. J. W. Bobbitt's explanation was: That "the building that was on there that burned, I put it there, but the lot belonged to the boy, and I had to carry a policy for myself to get my money out of it. * * * I received the money and I used one thousand dollars and used two thousand dollars back to the boy in replacing the building. * * * The first building was a tile and brick building; I furnished that and I loaned that to the boy. * * * The material was worth about $2,000.00, and there was $1,500.00 worth of labor; all together about $3,500.00 is what that building cost." The Bobbitt family occupied part of the first building, but never lived in the new brick building built there after the fire. The only evidence of its cost is an estimate of $3,000 to $4,000, stated by William W. Bobbitt.

To get the money on the $2,000 policy, J. W. Bobbitt signed the proof of loss "Wm. W. Bobbitt" and the check "William Bobbitt." (He wrote it "William Bobbitt," which was the way he signed his name on counsel's request during the trial.) He said that he did not tell the insurance company that the property belonged to his boy. J. W. Bobbitt also bought another property through Kotsrean in 1927, which was called the Bell avenue property. On October 21, 1929, he had a fire loss there for which he collected $1,357.63 on an insurance, policy made out to J. W. Bobbitt. He signed both the proof of loss and the check "J. W. Bobbitt." He paid the balance remaining on his obligation to Kotsrean out of the proceeds of this check. He said: "This (Bell avenue) was some property out there I bought and gave to my son." On August 2, 1930, J. W. Bobbitt obtained a decree divorcing him from his wife Jossie Bobbitt. He was named therein as "J. W. Bobbitt." William W. Bobbitt was living with his mother in Chicago at the time of the trial. He testified also that his grandfather gave him $500 when he and his father visited him in Tennessee, which he said was in 1925. He went to school until 1928 or 1929, and was not 21 until 1932, during which year the execution sale, under which plaintiff claims, was made. The sheriff's deed is dated November 7, 1932.

William W. Bobbitt said that he had put money other than the $500 in the property, and testified as follows: "I wouldn't say for certain, because I put it in small amounts and I didn't keep account of it, because it was my property and I didn't have to keep account of the exact money I put in, and I would put money in certain things and never keep no record of it. * *...