McFarland v. Braddy, 38085

• Decision Date: 08 November 1977
• Docket Number: No. 38085,38085
• Citation: 560 S.W.2d 259
• Parties: George R. McFARLAND et al., Respondents, v. Lewis A. BRADDY and Donna Braddy, his wife, Appellants. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 259

560 S.W.2d 259

George R. McFARLAND et al., Respondents, v. Lewis A. BRADDY and Donna Braddy, his wife, Appellants.

No. 38085.

Missouri Court of Appeals, St. Louis District, Division Four.

Nov. 8, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

Application to Transfer Denied Feb. 8, 1978.

Tyree C. Derrick, St. Louis, for appellants.

Roberts & Roberts, V. Kenneth Rohrer, Farmington, for respondents.

NORWIN D. HOUSER, Special Judge.

Action in ejectment and for damages, rents and profits (Count I) and to quiet title (Count II) to a tract of land in St. Francois County, and to annul two deeds to the land and expunge the deeds from the land records (Count III). Defendants filed a Counterclaim in three counts, (I) to quiet title in defendants based on implied trust, tenancy by the entireties, and a warranty deed from the survivor; (2) alternatively, to quiet title in defendants on the basis of adverse possession, and (3) alternatively to recover for improvements made on the land. Without the aid of a jury the circuit court heard all phases of the case except the issues of damages, rents and profits. The court found the issues for plaintiffs and against defendants on Counts I, II and III of the petition, except for the issues of damages, rents and profits, which were submitted to a jury. The court found the issues for plaintiffs and against defendants on all three counts of the counterclaim. The jury returned a verdict for plaintiffs and against defendants for $1.00 damages and $67.50 monthly rents and profits until possession was restored to plaintiffs. Defendants appealed from the ensuing judgment.

Plaintiffs assert title through their grandfather, Ed Curlee, who they claim was vested with fee simple title absolute in 1935. Ed Curlee died intestate in 1955. Plaintiffs contend that from Ed Curlee, plaintiff's mother Mary McFarland (Ed and Emma Curlee's only child) inherited the land subject to Emma's dower right (never assigned), her right of quarantine (which they say expired 10 years after Ed Curlee's death), and her homestead right (which they say terminated upon the death of Emma Curlee March 1, 1974); that plaintiffs inherited the land from their mother, Mary McFarland (who died intestate in 1958), subject to the rights of their father Delbert McFarland, which terminated upon the execution by him of a quitclaim deed to plaintiffs.

Defendant Lewis A. Braddy (son of Emma by a former marriage; never adopted by Ed Curlee), claims title by deed dated February 7, 1967 from Emma Curlee to him. He traces his title back to Otto Behrbaum, who by way of gift deeded one portion and willed another portion of this land to Ed Curlee and Emma Curlee, subject to underground rights in 80 acres Behrbaum devised to Walter Meltzer, and an $800 mortgage held by St. Francois County School Fund. Lewis claims that in 1935 the county demanded payment of the $800 mortgage from the Curlees who, acting on advice of counsel, allowed the mortgage to be foreclosed and the land sold at public sale; that Ed Curlee purchased the land at the sale for $1,200; that three days after the foreclosure sale Ed and Emma Curlee signed a bond and deed of trust on the land to the school fund for $1,200 money used to pay the amount Ed Curlee bid at the sale; that the foreclosure wiped out Meltzer's interest and the $800 lien; that both Ed and Emma intended to have the sheriff's deed name both of them as grantees, as tenants by the entireties, but by mischance the sheriff's deed, dated May 6, 1935, named Ed Curlee alone as grantee instead of both of them; that when Emma pointed out to Ed that he was named as sole grantee he acknowledged the error and promised to have the deed corrected to include Emma's name as a grantee with Ed, but that he failed to do so; that when Ed bought the land at the sheriff's sale and took title in his name he thereupon and at that time took title in trust for Emma and in equity held title with her as tenants by the entireties on the basis of a constructive trust ¹; that Ed Curlee paid the $1,200 bond partly from funds supplied by Emma, and the deed of trust was cancelled; that upon Ed's death January 15, 1955 Emma as survivor succeeded to the entire title, giving her good right to convey to Lewis on February 7, 1967.

The appellate court will sustain the decree on issues tried to the court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976).

Appellants, contending there is no substantial evidence to support the decree; that it is against the weight of the evidence and that the court erroneously applied the law, make two points: that the court erred (1) in failing to decree that a constructive trust arose at the moment Ed Curlee bought the land at the foreclosure sale with his and his wife's money and took title in his name alone, and (2) that the court erred in holding that the deed from Emma to Lewis Braddy was the result of a scrivener's mistake and was not intended to be executed or delivered.

Applying the tests of Murphy v. Carron, the first critically important question is whether some of Emma's money went into the purchase of the land at the foreclosure sale, pursuant to an intention on the part of Ed and Emma that title be taken in their joint names as tenants by the entireties, or whether the sheriff's deed was intended to be a conveyance of the title to Ed Curlee only. If that question is decided favorably to defendants the next vital question is whether the warranty deed from Emma to Lewis dated February 7, 1967, purporting to convey the whole farm, was a good and valid conveyance of the fee simple title.

ON THE QUESTION OF SOLE OWNERSHIP OR TENANCY BY THE ENTIRETIES

Unchallenged documentary evidence shows that the sheriff's deed named Ed Curlee as the sole grantee; that Ed Curlee and Emma Curlee, his wife, signed the $1,200 bond as principals and that they both signed the deed of trust of May 7, 1935 by which they bound themselves to pay that sum, referred to in the documents as money borrowed from the school fund, and that the $1,200 bond was repaid to the school fund as follows:

Date Principal Interest

12-10-1941 $600.00 $60.60

12- 4-1942 400.00 36.00

2-10-1943 200.00 2.00

Receipts signed by the county treasurer were issued in each instance to "Ed. Curlee." The proximity of the dates of the foreclosure (May 4), the sheriff's deed (May 6), and the deed of trust (May 7), together with a consideration of the amount borrowed ($1,200) in comparison with the amount required to satisfy the $800 debt, with interest to March 29, 1935 ($1,007.47), plus interest from March 29 to May 4, 1935, plus publication costs, etc., totalling approximately $1,200, constitutes circumstantial evidence that the $1,200 borrowed as aforesaid was used to discharge the debt and costs.

Defendant Lewis A. Braddy supplemented this evidence by giving oral testimony as follows: Ed and Emma went to I. N. Threlkeld, an attorney, to get advice about the threatened foreclosure of the farm. Acting as spokesman, Emma told the lawyer that "she" wanted to borrow the money. The lawyer advised her to "let it go through foreclosure and reborrow the money to pay that off. * * * You can buy it in." Attorney Threlkeld offered to arrange for the loan, sign the note as a surety and get Joe Diemer to sign as an additional surety. The lawyer advised Ed and Emma that, since Walter Meltzer's interest in the 80 acres was subject to the school fund mortgage, Ed and Emma could "cut his interest out and have it auctioned and buy in the whole thing . . . in both of your names." Accepting his advice, Ed and Emma said "that was suitable." Emma came home and told Lewis that "Everything is fixed . . . taken care of"; that the attorney would get the money for them, and said "We are going to buy the place in, buy the farm in." After the sale Emma told Lewis that they made the deal; that everything was "all in order"; that "they" borrowed the money for the purpose of buying in the farm; that "they" paid the borrowed money to the sheriff "to get the property back in their name." The sheriff's deed was sent by mail. Emma looked at it. Ed could not read. She said, "Why, Ed, the sheriff had made a mistake here," pointing out that only his name appeared on the deed, "You better take that back over there (to Farmington, the county seat) and have it fixed over, have them do it over." Ed said, "I will do it in a few days." The question arose several different times. Emma would ask Ed when he was going to take the deed to Farmington. One day in 1935 Ed Curlee had a conversation with Omer Barton in which Ed told Barton "about just his name being on the face of the deed" and that it happened because the "Sheriff made a mistake." Twice in after years Emma, referring to the correction of the deed to show that the conveyance was to both of them, told Lewis that "Everything has been taken care of." Lewis testified that his grandfather moved from the southeast part of the state, set up a sawmill, and told Emma that " * * * all of my spare money that I get, I will give you to make payments on this mortgage." He claimed that Emma and her father " * * * saved their money. They pooled their money together, and any time he sold any lumber or anything like that, why, he would give it to Mother to make the payments on the mortgage." Inconsistently, Lewis later testified that he really did not know where the money came from to make the payments to satisfy the debt due the school fund.

Esther Hoehl, a cousin of Lewis, testified that in two or three conversations over a period of two years she heard Ed Curlee tell her father that he got the money to buy the land at the sheriff's sale from a school loan and that "he was going to have the sheriff put the deed in both their...