Monia v. Oberle, 36361

• Decision Date: 04 November 1975
• Docket Number: No. 36361,36361
• Citation: 530 S.W.2d 452
• Parties: Robert L. MONIA and Patricia A. Monia, Plaintiffs-Appellants, v. Andre J. OBERLE, Jr., and Lillian B. Oberle, Defendants-Respondents. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 452

530 S.W.2d 452

Robert L. MONIA and Patricia A. Monia, Plaintiffs-Appellants, v.Andre J. OBERLE, Jr., and Lillian B. Oberle, Defendants-Respondents.

No. 36361.

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

Nov. 4, 1975.

Motion for Rehearing or Transfer Denied Dec. 10, 1975.

Application to Transfer Denied Jan. 12, 1976.

Ziercher, Hocker, Tzinberg, Human & Michenfelder, Albert A. michenfelder, jr.,

Buerkle, Buerkle & Lowes, David G. Beeson, Jackson, for defendants-respondents.

NORWIN D. HOUSER, Special Judge.

Action to remove from the land records of Ste. Genevieve County a recorded contract for the sale of two tracts of land totaling 25 acres.Plaintiffs are Robert and Patricia Monia, who contracted to sell the land.Defendants, the buyers, are Andre J. Oberle, Jr. and his wife Lillian.The Oberles counterclaimed for specific performance of an oral contract relating to two larger tracts of land.The 25 acres was included in one of those tracts.Tried to the court without a jury, a judgment and decree was rendered in favor of buyers Oberle and against sellers Monia, both on petition and counterclaim.The Monias have appealed.

The Oberles move to dismiss the appeal for failure to comply with Rule 81.19 with respect to the time within which a transcript must be ordered.On December 13, 1974this court, having considered motions pro and con on the question of extension of time and Oberles' motion to dismiss the appeal on this ground, overruled the motion to dismiss and granted Monias' motion for extension of time.These orders were made pursuant to the power granted by Rule 84.08 to suspend or modify the rules in a particular case upon a showing that justice so requires and by Rule 44.01(b) empowering the court to order enlargement of a time period for cause shown.Our order allowed extra time to file the transcript, which was prepared at a cost of $221 and filed.Since then the parties have incurred additional expense for printing briefs.Under all these circumstanceswe are disposed to determine the case on the merits and now overrule the motion to dismiss the appeal.

Oberles' contention that certain points raised in Monias' brief are not properly before this court because not raised in their motion for new trial is disallowed.In this court-tried case no motion for new trial was necessary to preserve any point for appellate review.Russell v. Russell,427 S.W.2d 471(Mo.1968);March v. Gerstenschlager, 436 S.W.2d 6(Mo.1969).In such a casean appellant may raise on appeal points not mentioned in the motion for new trial.Timmerman v. Ankrom, 487 S.W.2d 567, 569(Mo.1972).

First we consider the action of the court in denying the prayer of the petition to remove the contract from the land records.It is the duty of recorders to record instruments of writing concerning lands which are acknowledge according to law.§ 59.330, RSMo 1969.If intended to affect title to real estate an instrument must be acknowledged before it is entitled to be recorded.Instruments are not entitled to be recorded as to persons who have not acknowledged them.Heintz v. Moore, 246 Mo. 226, 231--232, 151 S.W. 449(1912).An instrument the acknowledgment of which has been forged is not entitled to be recorded.Finley v. Babb, 173 Mo. 257, 73 S.W. 180(1903).Robert L. Monia and Patricia A. Monia, and Andre J. Oberle, Jr. and Lillian B. Oberle signed the contract.It was not acknowledged by the Monias at that time or at any later time.It is conceded that at a time subsequent to the signing Andre J. Oberle, Jr., himself a notary public, prepared and affixed to the contract an acknowledgment in his own handprinting, reciting the appearance of Monias before him and that they executed the instrument as their free act and deed, attached a purported legal description of '70 acres remaining to be shared,' and had the contract, acknowledgment and legal description filed of record in the land records of Ste. Genevieve County, all without the knowledge or consent of Monias.This falsification and alteration of the document disentitled it to be recorded and entitled Monias to have it stricken from the records.The court erred in finding against Monias and for Oberles on the petition.

Next, we consider the action of the court on the counterclaim.The handwritten contract, which the parties signed on January 29, 1973, provided for sale by Monias to Oberles of two tracts of land, one consisting of 10 acres, with house, barn and outbuildings, for $13,000, the approximate property lines located according to attached aerial plat; the other consisting of fifteen acres, more or less, at $500 per acre, the property lines to be determined by survey.Provision was made for date of possession, insurance, date of closing, and giving a warranty deed.

The last sentence of the contract (which poses the problem in this litigation) follows 'Additional agreement to be made concerning sharing balance of approximately seventy acres of tract.'

Apparently on the theory that the last sentence of the contract above quoted was ambiguous, the circuit court, over the persistent and continuing objections of Monias on the basis of the parol evidence rule, admitted extensive and voluminous evidence of prior negotiations, dealings, discussions, and agreements, not only between Monias and Oberles but also with representatives of the Wipfler estate, with respect to a larger tract within which the 25 acres were included, and another tract called the 'big field property.'Mr. Oberle was permitted to testify at length concerning his version of the agreement between the parties.Mr. Oberle testified that there was an oral agreement between the parties prior to the execution of the contract of January 29, 1973 under which Monias were to purchase certain lands from the Wipfler estate (the big field property and a separate 115-acre tract); that Monias were to sell the big field property for a profit and use the funds derived from that sale to pay a portion of the purchase price to the Wipfler estate; that Monias would sell Oberles a 10-acre tract and a 15-acre tract out of the 115-acre tract, for $13,000 and $7,500 respectively; that Monias would reserve 15 acres out of the 115-acre tract for themselves; that the balance of the 115-acre tract was to be split equally between Monias and Oberles; that Oberles would pay Monias $500 per acre for the land received by them out of the remaining acreage; that they were to split the proceeds of the crops from the remaining acreage; that Oberles have paid Monias all of the $20,500 purchase price for the 10-and 15-acre tracts; that this sum was paid in three instalments, the first of which in the sum of.$19,000 having been paid to enable Monias to consummate the 'deal' with the Wipfler estate.The court, crediting Mr. Oberle, found the facts according to his understanding as to the true intent and meaning of the last sentence of the contract; decided the case for Oberles and against Monias on the counterclaim; decreed specific performance based on Mr. Oberle's understanding of what the last sentence of the...