McNeill v. McNeill
| Decision Date | 22 June 1970 |
| Docket Number | No. 8942,8942 |
| Citation | 456 S.W.2d 800 |
| Parties | Ira McNEILL and Bertie Bell McNeill, his wife, Plaintiffs-Respondents, v. Jim McNEILL and Sylvia McNeill, his wife, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Joe R. Ellis, Cassville, for defendants-appellants.
Emory Melton, Cassville, for plaintiffs-respondents.
In this jury-waived, court-tried unlawful detainer action instituted in the magistrate court on August 23, 1968, plaintiffs Ira McNeill and Bertie Bell McNeill, his wife, sought possession of a 53-acre farm (hereinafter sometimes called the farm) in Barry County on which their son and daughter-in-law, defendants Jim McNeill and Sylvia McNeill, his wife, resided. Defendants appeal from an adverse judgment.
Plaintiffs' complaint in conventional form alleged that defendants' prior occupancy of the described premises as tenants at will had terminated on July 31, 1968, but that, disregarding plaintiffs' written demand therefor, defendants wrongfully refused to quit possession. In due time, defendants filed their answer and defendant Jim interposed his counterclaim. After admitting their refusal to surrender possession and categorically denying all other allegations in the complaint, defendants affirmatively averred in their answer that the farm 'formerly belonged to plaintiffs,' who put defendant Jim in possession thereof on September 21, 1964, 'under the terms of a verbal agreement to the effect that if he would take possession of the described property and improve it, plaintiffs would convey, deed and give' it to defendant Jim 'within three years from said date of September 21, 1964'; that 'in pursuance of said contract . . . and in reliance upon the promises so made by the plaintiffs,' defendant Jim went into possession of the farm, thereafter resided thereon with his family, and made lasting and valuable improvements thereon. The prayer of the answer was that plaintiffs' complaint be dismissed and that the court enter a 'decree ordering the plaintiffs to specifically perform the contract and . . . to make, execute and deliver' to defendant Jim a deed conveying the farm to him. In his counterclaim, defendant Jim sought, 'in the alternative to the relief prayed for in defendants' answer,' a money judgment for the reasonable value of labor and materials allegedly furnished by him in improving the farm and the dwelling thereon. Upon defendants' affidavit and application, the cause was transferred to change of venue from the magistrate court to the circuit court (§§ 534.150, 517.520) 1 where the following proceedings were had.
Plaintiffs' motion to strike, directed to the affirmative averments in defendants' answer and the entire counterclaim of defendant Jim, was sustained. Thereafter, leave was requested but denied for the filing of defendants' first amended answer, accompanied by defendant Jim's counterclaim and his verified statement characterized by defendants' counsel as 'setting out facts showing a right to title in the property (the farm).' The tendered first amended answer pleaded (a) 'for an affirmative defense' that plaintiffs' cause of action was 'barred' by reason of defendants' 'uninterrupted occupation and . . . quiet possession' of the farm for more than three years prior to institution of the unlawful detainer action (§ 534.300) and (b) 'for an equitable defense and cross-claim' that defendant Jim had been put in possession on September 21, 1964, under the hereinbefore-noted 'oral agreement' with plaintiffs, who were 'bound to convey' the farm to him. As in the original petition, the prayer was for a decree of specific performance compelling conveyance of the farm to defendant Jim. The tendered counterclaim was the same as that theretofore filed with the original answer. The verified statement of defendant Jim was simply an authenticated reiteration of the allegations in the amended answer pertaining to the 'equitable defense and cross-claim.'
Over plaintiffs' objection, leave was granted for the filing of defendants' second amended answer which pleaded the same 'affirmative defense' and the same 'equitable defense' as the rejected first amended answer but closed with a different prayer, to wit, that plaintiffs be denied the relief sought, their petition be dismissed, and costs be assessed against them. Following trial by the court, the case was taken under advisement, briefs were filed by opposing counsel and, on March 3, 1969, judgment was entered in which the court found for plaintiffs and ordered restitution of possession of the farm to them.
Plaintiffs have lived in Texas since 1906 except during the period from 1952 to 1956 when they dwelt on a 240-acre farm owned by them, which was situate between Butterfield and Wheaton. During a part of that four-year period, defendant Jim and his first wife resided with plaintiffs. How and when Jim's first marriage was dissolved are here unrevealed and unimportant, but apparently such change in marital status occurred prior to the latter half of 1964 when plaintiff Bertie, Jim's mother, 'stayed with him four months' in an 'old apartment' at Wheaton and 'helped take care of his little girls.' On September 21, 1964, plaintiffs purchased for $8,500 the 53-acre farm under consideration here, which on its north side adjoined the 240-acre farm still owned by them. There was a large, old residence on the 240-acre tract, but it was 'in bad shape' and not then 'liveable.' As plaintiff Bertie commented, although 'we lived in it when we lived up here (1952--1956), we didn't want him (defendant Jim) living in that house.' A six-room frame house with 'rock veneer on the outside' stood on the 53-acre farm, and plaintiffs' immediate purpose in acquiring that farm was to make a suitable home available to defendant Jim (said to have been his mother's 'baby' and 'favorite son' among four) and his two young daughters.
One Sanders, who was on the 53-acre farm when plaintiffs purchased it, remained there about two months and paid rental to plaintiffs. During the latter part of November 1964, defendant Jim and his two daughters moved into the dwelling on that farm. No writing of any character was executed by plaintiffs and defendant Jim, and their trial testimony bearing upon their oral understanding and legal relationship was conflicting. On the one hand, the essence of plaintiffs' testimony may be summarized thusly--it was agreed, when they wanted 'the place,' defendant Jim would surrender possession without requiring formal notice; he had the right to run cattle on the farm and had no obligation to pay any rent as such; but he was to pay the taxes on the farm, and work done and money spent by Jim in repairing or remodeling the dwelling or in improving the farm were to be treated as constituting consideration for his occupancy. On the other hand, defendant Jim's testimony was to the effect that plaintiffs said they were purchasing the farm for him and that plaintiff Ira told him to 'fix everything up exactly like I wanted it because it was mine' and that 'within three years, four at the most, he would turn it over to me . . . he was going to deed it to me.' Both plaintiffs specifically and vigorously denied having made any such statements.
Defendant Jim married his present wife, defendant Sylvia, in May 1966 and a few months later, to wit, about November 1966, plaintiffs undertook an extensive remodeling of the dwelling occupied by defendants, which continued over a period of some four months and cost them 'somewhere in the neighborhood of $6,000.' Plaintiffs also made other expenditures on the farm (e.g., they 'built some fences there and had some grass planted on the pastures'), so that 'in labor and all, (they) had been out on the place somewhere pretty close to $8,550' in addition to the purchase price of $8,500. Defendant Jim testified that he had worked four months on the remodeling project and had made various expenditures in connection therewith, mentioning items aggregating almost $1,000, and that he had dug a pond on the farm at a cost of $60 and had put in permanent pasture. But plaintiff Ira said that if Jim spent 'some of his own money' on the remodeling project, 'I didn't know it . . . I bought the flooring and everything to go on--I wouldn't see why he would'; plaintiff Bertie stated that 'he (Jim) checked on us all the time to pay for anything he has ever done'; and Jim's testimony confirmed the fact that he had freely availed himself of the privilege extended by his father (plaintiff Ira) to draw on the latter's bank account in Texas for such items (designated on various checks) as fruit trees, barn hinges, gate wire, fence repair, cement, lumber, supplies, and living room rug. The parties agree that defendants paid no rent to plaintiffs for the 53-acre farm or the dwelling thereon and that plaintiffs received no income of any character therefrom. During the last quarter of 1966, plaintiffs conveyed to defendant Jim as gifts (a) their 240-acre farm subject only to a deed of trust securing payment of an unpaid balance of about $5,000 and (b) 'the Rhoades land,' a tract of undisclosed acreage located (so we infer) in the same general neighborhood, which defendant Jim termed 'a birthday present.'
About June 19, 1968, plaintiffs sent a written 'Notice of Termination of Tenancy' by certified mail, return receipt requested, directed to defendants at their mailing address, Route 2, Purdy, Missouri, which was delivered by the postman on June 21, 1968, to Jackie McNeill, then 10 1/2 years of age, the daughter of defendant Jim who lived in the same household with him and defendant Sylvia. When asked what she did with the envelope delivered to her by the postman, Jackie said 'I took it in to (defendant Sylvia) . . . she waited until my dad (defendant Jim) got home, then they opened it' that same day. This 'Notice of Termination of Tenancy' prepared by plaintiffs' attorney 'notified (defendants) that your...
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