McHenry v. Brown

• Decision Date: 12 April 1965
• Docket Number: No. 2,No. 50632,50632,2
• Citation: 388 S.W.2d 797
• Parties: Ida McHENRY, also known as Ida Winheim, Respondent, v. Zona BROWN, Leonard F. parks, Lydia Parks, Fred C. Schuepfer and Fred C. Schuepfer Investment and Realty Company, Appellants
• Court: Missouri Supreme Court

Page 797

388 S.W.2d 797

Ida McHENRY, also known as Ida Winheim, Respondent, v. Zona BROWN, Leonard F. parks, Lydia Parks, Fred C. Schuepfer and Fred C. Schuepfer Investment and Realty

Company, Appellants.

No. 50632.

Supreme Court of Missouri, division No. 2.

April 12, 1965.

Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent.

Larry J. Casey, Potosi, Earle B. Lead-love, St. Louis, for appellants.

PRITCHARD, Commissioner.

Arthur H. McHenry, also known as Archie H. Parks, from 1942 to the time of his accidental death, July 7, 1962, led a double marital life. The contest here is over the ownership of certain real and personal property standing in his name, and that of his first spouse, and is between his reputed second spouse, plaintiff, and his first spouse and two children as his heirs.

Plaintiff's claim is that on March 28, 1942, she married a man who had introduced himself to her as Arthur H. McHenry (and who represented himself as being single with no children) with whom she lived as wife and husband until his death. Thereafter, plaintiff learned for the first time that the true name of her supposed husband was Archie H. Parks; that he was married to defendant, Lydia Parks; and that he was the father of defendants Zona Brown and Leonard F. Parks. During the course of her supposed marriage to McHenry, plaintiff alleged that her funds (some $5,000.00), which she had prior to the marriage, and all her earnings were taken by him and placed (1) in an investment account with defendant, Fred C. Schuepfer Investment and Realty Company; (2) in a 200 acre Washington County farm, the title to which was caused by McHenry to be placed in a straw party; and (3) in certain motor vehicles, machinery and other personal property which were inventoried in the estate of Archie H. Parks, deceased.

Plaintiff prayed for judgement against the Schuepfer Company for the amount of the investment account held by it (Count VII, tried to a jury); for a decree quieting title to the 200 acre farm against defendants, Lydia Parks, Zona Brown, Leonard F. Parks and Fred C. Schuepfer, and declaring that plaintiff is the owner of such farm upon the theory of a constructive trust (Counts I and II); and for title and possession to certain described personal property located upon the 200 acre farm also upon the theory of a constructive trust (Count V). Counts I, II and V were tried to the court simultaneously with the submission of Count VII to the jury.

The jury returned a verdict for plaintiff against defendant, Schuepfer Company, for $8,482.40. The court decreed title to the 200 acres of land and to the personal property to be in plaintiff. Plaintiff dismissed her Counts IV and VI, and the court found against her on Count III, and these counts are not in issue here. The court also decreed defendants Zona Brown and Lydia Parks take nothing on their countercliams and dismissed same, which defendants say is error inasmuch as they say they dismissed such counterclaims in the chambers of the court prior to submission of the case to the jury. All of the defendants appeal from the judgment and decrees against them.

The investment account was alleged to be $8,000.00; the farm was appraised in the estate at $14,000.00; and the personal property was appraised in the estate at $7,601.00. The evidence showing how plaintiff was deceived and mulcted of her property by her supposed husband for over 17 years when they were living together is as follows:

Plaintiff testified that her maiden name was Ida Winheim and that she was born May 27, 1915. She first met a man who introduced himself to her as Arthur McHenry on February 6, 1941, at a dance. She thereafter kept company with him from that night on. McHenry always told her that he was single and had no family, which she believed. He told her he was 9 years older than she was (but she learned after his death he was 22 years older). She was married to him on March 28, 1942, by a Jutice of the Peace in Salem, Arkansas. After the marriage she continued to use her own name on income tax papers for which she made a separate return at his request. Plaintiff and McHenry lived together as husband and wife at various places in St. Louis (city and county) until 1959 when both retired and moved to the 200 acre farm in Washington County (near Potosi and Caledonia). During all of this time the electric meter receipts, water bills and purchases for household use were made in the name of A. H. McHenry.

During the marriage to McHenry plaintiff acquired with her own money a small confectionery or delicatessen in St. Louis for $2,200, using her U. S. Savings bonds accumulated prior to 1942. She and McHenry operated the delicatessen until she sold it in May of 1949 for $5,000. McHenry took that money, plaintiff being ill at the time. She later went with McHenry to talk to Paul G. Tucker about purchasing the farm, and she was then introduced to Tucker as Mrs. McHenry. The farm was purchased from Tucker for $5,500 on February 1, 1950, and McHenry told plaintiff that the farm was bought in both their names, and that the title would be held in their two names. The closing of the farm purchase was done by the Fred C. Schuepfer Realty and Investment Company, and plaintiff had no knowledge that at that time Fred C. Schuepfer or his investment company was setting up a straw party to hold title to the property in order to keep it out of her name. (The deeds referred to in evidence, and the testimony of Schuepfer, all show that title from Tucker was transferred to one Fred Herchert, who, with his wife, gave back a deed of trust on the property securing a note for $7,500 to Schuepfer, called a 'Protective Deed of Trust' customarily used in the St. Louis area when straw parties hold title to real estate. Fred Herchert and wife also gave a deed to Schuepfer in 1956 which was recorded. In 1950, the straw party, described as single, made a deed to Archie H. Parks and wife Lydia, which was held by Schuepfer in his office safe until 1963 when he mailed it to Mr. Larry Casey, counsel for Zona Brown, the administratrix. Mr. Casey caused the 1950 deed to be recorded.) Plaintiff testified further that she had never inspected the deed from Tucker, and never authorized anyone to transfer the title to the farm from the name of Herchert to Schuepfer or to Archie Parks and Lydia Parks, his wife, and that she had no knowledge thereof.

McHenry received injuries from a tractor accident from which he died two or three days later on July 7, 1962. On the day of his death, plaintiff learned for the first time that McHenry was really Archie H. Parks and that he had a wife, Lydia Parks, and two children, Zona Brown and Leonard F. Parks, living. Subsequently she found in the tool shed on the farm a steel ammunition box which had papers in its belonging to deceased. Among them was a statement of the Fred C. Schuepfer Investment and Realty Company, 'Int. from 10/15/59 to 4/15/60 at 6% on Principal Balance of $8,000.00, Interest $240.00.' On October 13, 1959, plaintiff withdrew from her separately accumulated funds in the Southern Commercial and Savings Bank, by cashier's check, $7,020.18, payable to the Schuepfer Company, wherein it was deposited. The investment account there, according to the statement and the testimony of Schuepfer, was in the names of 'Archie H. Parks or Ida Winheim.' McHenry's name was added to the Southern Commercial account on February 11, 1955, making it read, 'Miss Ida Winheim or Arthur H. McHenry.'

On June 25, 1957, plaintiff furnished another cashier's check to McHenry from her savings for $3,000.00 for the purchase of an automobile. Plaintiff also introduced evidence of her social security earnings from 1942 until 1959 (when she retired) showing a total of $26,148.68 earned. Her testimony was that McHenry got all of that money.

Among other papers in the ammunition box were licenses to motor vehicles: a 1957 Ford Ranchero pick-up registered in the name of A. H. McHenry, and a 1944 GMC truck registered in the name of A. H. Parks. Registration papers to a Hereford bull were in the name of A. H. McHenry. Receipts for a pump and a propane tank were in the name of A. H. McHenry, as was a farm soil test report. A purchase of a 'Turbomatic' from Sears, Roebuck and Company was in the name of A. H. Parks, Rt. 1, Box 286, Potosi, Missouri, but the directions for delivery and installation thereof were to A. H. McHenry near Caledonia, Missouri. Plaintiff testified that McHenry always picked up the mail from the mail box, and had a habit of tearing off the addresses on magazines and papers received by him.

Guy McHenry testified that he was a first cousin of deceased, and had known him about 55 years. He knew his real name was Archie H. Parks and that he was living with plaintiff near Caledonia, and that Parks was going under the name of McHenry. During the time they were living together, McHenry (Parks) told him that when plaintiff was employed she gave him her checks. Guy McHenry never did say anything to plaintiff about deceased's name being actually Parks, and Archie Parks (McHenry) knew that Guy McHenry was aware of his previous marriage and family, and Guy supposed that was the reason Archie was going under the name of McHenry.

Mr. and Mrs. Paul G. Tucker, Arthur and Willard Rieffer, Robert Crow, Guy McHenry, Aaron Gamble, Mr. and Mrs. Bill Warden, Donald Warden (all residing in the neighborhood of the farm) and plaintiff all testified that McHenry introduced plaintiff as his wife. They did not know McHenry as Parks or that he had another wife and two children. Tucker testified that at the time they purchased the farm from him, McHenry told him the reason the closing was handled by the Schuepfer Company was that he was putting up stocks and bonds which he didn't want to cash in and the company was advancing him the money to buy the property. Tucker did not know of the straw party. The Rieffers...