Moore v. Carter

• Citation: 201 S.W.2d 923,356 Mo. 351
• Decision Date: 21 April 1947
• Docket Number: 40035
• Parties: Marian Moore, Edwin Carter v. Genevieve Carter, Linwood H. Carter, Anna I. Jones, Susan S. Ott, and L. M. Crouch, Jr., Trustee, Defendants, Anna I. Jones, Appellant
• Court: Missouri Supreme Court

201 S.W.2d 923

356 Mo. 351

Marian Moore, Edwin Carter v. Genevieve Carter, Linwood H. Carter, Anna I. Jones, Susan S. Ott, and L. M. Crouch, Jr., Trustee, Defendants, Anna I. Jones, Appellant

No. 40035

Supreme Court of Missouri

April 21, 1947

Rehearing Denied May 12, 1947.

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed.

Will H. Hargus and C. E. Groh for appellant.

(1) Conveyances of the 65-acre tract and the 313-acre tract to L C. Rodekohr by Parks Carter and Anna Carter, his wife, on February 14, 1934, and conveyances of said tracts by Rodekohr back to Parks Carter and wife, Anna Carter, created an estate by the entirety in the grantees as to both said tracts. Sutorious v. Mayor, 350 Mo. 1235, 170 S.W.2d 387; Hiatt v. Hiatt, 168 S.W.2d 1087. (2) The repurchase agreement between Susan S. Ott and Parks Carter and Anna Carter, his wife, created an equitable estate as tenants by the entirety in Parks Carter and Anna Carter, his wife, as to the 313-acre tract. State ex rel. City of St. Louis v Baumann, Collector of Revenue, 348 Mo. 164, 153 S.W.2d 31; Hernandez v. Prieto, 349 Mo. 656, 162 S.W.2d 829. (3) The conveyances of both the 313-acre tract and the 65-acre tract to George W. Carter created a resulting trust in him for the benefit of Parks Carter and Anna Carter, his wife, as tenants by the entirety because: The written direction on the repurchase agreement was not an assignment. Bouvier's Law Dictionary (Rawle's Third Revision), p. 264. (4) The notes, secured by deed of trust on both tracts, were executed by George W. Carter for the benefit of Parks Carter and wife, Anna Carter, after their promise to hold him harmless from any personal liability thereon. Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392. (5) The conveyances were made for a particular purpose only, namely, to enable Parks Carter and wife, Anna Carter, to repurchase the 313-acre tract without a direct conveyance from Susan S. Ott. State ex rel. Mesker v. Reynolds, 245 S.W. 1065; Italiani v. Higbee Coal Mining Co., 331 Mo. 362, 53 S.W.2d 1050. (6) In their reply respondents admit facts inconsistent with the nonexistence of the trust and are bound thereby. 49 C.J. 122, sec. 121; Stottle v. Chicago, R.I. &. P. Ry. Co., 321 Mo. 1190, 18 S.W.2d 433; Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849; Baker v. Lamar, 140 S.W.2d 31; Hartford Fire Ins. Co. v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d 1066; Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144. (7) The conveyance of both tracts by George W. Carter to Parks Carter by means of the altered warranty deed (defendant's Exhibit 4) did not destroy the resulting trust and equitable estate of Parks Carter and wife, Anna Carter, as tenants by the entirety because: George W. Carter, as trustee of a resulting trust, had no authority to convey without consent of the owners. 65 C.J. 740, sec. 606. (8) Parks Carter was not a bona fide purchaser for value. Beach v. Lynn, 299 Mo. 127, 252 S.W. 437. (9) Even if Will H. Hargus represented Anna Carter as well as Parks Carter in the repurchase of the 313-acre tract sold on foreclosure, he had no implied authority as her attorney to consent to a conveyance of her interest in the property. Krug v. Roberts Cone Mfg. Co., 213 Mo.App. 628, 250 S.W. 621; Sudekum v. Fasnacht's Estate, 236 Mo.App. 455, 157 S.W.2d 264. (10) Even if appellant consented to the alteration of the deed so as to convey the property to Parks Carter alone, the burden was on respondents to show a valid gift by the wife of her interest in the property to her husband or that a valuable consideration passed to her for such interest. 30 C.J. 708, sec. 305; 41 C.J.S. 638, sec. 158a; Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; 41 C.J.S., p. 640, sec. 158b, p. 641, sec. 158d; 30 C.J. 695, sec. 282; 41 C.J.S. 616, sec. 143. (11) Anna Carter (appellant) was guilty of no fraud which would bar the relief she seeks in her amended separate answer upon any of the following grounds: The fact, if true, that the warranty deed from George W. Carter (defendant's Exhibit 4) was altered so as to exclude her name as grantee because she contemplated bankruptcy proceedings. Aslin v. Stoddard County, 341 Mo. 138, 106 S.W.2d 472; Weitzman v. Weitzman, 156 S.W.2d 906; Shipman v. Fitzpatrick, 350 Mo. 118, 164 S.W.2d 912; Dickey v. Thompson, 323 Mo. 107, 18 S.W.2d 388; Budd v. Budd, 233 Mo.App. 377, 122 S.W.2d 402; Abbott v. Miller, 226 Mo.App. 277, 41 S.W.2d 898; Donaldson v. Donaldson, 249 Mo. 228, 155 S.W. 971. (12) The fact, if true, that Anna Carter desired and consented to the alteration of the deed from George W. Carter (defendant's Exhibit 4) so as to exclude her name from the record title to the property until after limitations had barred claims of her creditors. Maender v. Breck, 159 S.W.2d 310; Stam v. Smith, 183 Mo. 464, 81 S.W. 1217. (13) The fact, if true, that Anna Carter (appellant) delayed starting administration on the estate of Parks Carter, deceased. 37 C.J.S. 951-2, sec. 112; 26 C.J. pp. 1069, 1071-1073; Weitzman v. Weitzman, 156 S.W.2d 906; Sec. 8, R.S. 1939; Donaldson v. Donaldson, 249 Mo. 228, 155 S.W. 971. (14) The fact, if true, that Anna Carter (appellant) delayed asserting her claims to be the sole owner of the property until June, 1945. 37 C.J.S. 951-2, sec. 112; 26 C.J., pp. 1069, 1071-1073; Donaldson v. Donaldson, 249 Mo. 228, 115 S.W. 971. (15) Fraud, if any, in the conveyance from George W. Carter to Parks Carter (defendant's Exhibit 4) would preclude respondents from the relief asked in their petition because: Parks Carter, under whom respondents claim as heirs, participated in the conveyance. Coulson v. Coulson, 180 Mo. 709, 79 S.W. 473. (16) The amended separate answer of the appellant converted the whole case into a suit in equity. Rowley v. Rowley, 197 S.W. 152. (17) Appellant's defense and prayer for affirmative relief set forth in her amended separate answer were not barred. By statutes of limitations. Zeitinger v. Annuity Realty Co., 325 Mo. 194, 28 S.W.2d 1030; Powers v. Grand Lodge of Ancient, Free & Accepted Masons, 235 Mo.App. 7, 146 S.W.2d 895; Sec. 1002, R.S. 1939. (18) Or by laches. Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060; Schaefer v. Causey, 8 Mo.App. 142; Ruckels v. Pryor, 351 Mo. 819, 174 S.W.2d 185. (19) The trial court erred in excluding the testimony of L. M. Crouch, Jr. Carr v. Carroll, 178 S.W.2d 435; 65 C.J. 439, sec. 202; Cassity v. Cassity, 240 S.W. 486; Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 174 S.W.2d 862; Maness v. Graham, 142 S.W.2d 1009, 130 A.L.R. 225. (20) The testimony of Will H. Hargus was admissible. Canty v. Halpin, 294 Mo. 96, 242 S.W. 94; Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W.2d 816; Blank, Inc. v. Lennox Land Co., 174 S.W.2d 862, 351 Mo. 932. (21) The trial court erred in excluding the testimony of P. J. Yennie, Frank Harbison, and Genevieve Carter, because such testimony was admissible as declarations against interest. 22 C.J. 233-34, sec. 212; Cape County Savs. Bank v. Wilson, 225 Mo.App. 14, 34 S.W.2d 981; Shern v. Sims, 258 S.W. 1029. (22) Incompetency, if any, of Anna Carter Jones (appellant) as a witness was waived by cross-examination. People's Bank of Queen City v. Aetna Cas. & Surety Co., 225 Mo.App. 113, 40 S.W.2d 535. (23) Genevieve Carter was not disqualified as a witness by reason of the death of her father, Parks Carter. Sec. 1887, R.S. 1939; Zumwalt v. Forbis, 349 Mo. 752, 163 S.W.2d 574; Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W.2d 816. (24) All the evidence in the record improperly excluded by the trial court may be considered by this court in reviewing the case on appeal. Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332. (25) Under the pleadings, the evidence was sufficient to establish the resulting trust through which appellant claims to be the sole owner of all the land involved in this suit. Italiani v. Higbee Coal Mining Co., 331 Mo. 262, 53 S.W.2d 1050; Carr v. Carroll, 178 S.W.2d 435; Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392; 65 C.J. 439, sec. 201; Cassity v. Cassity, 240 S.W. 481.

Ray L. Shubert, Milligan, Kimberly & Deacy and Thomas E. Deacy for respondents.

(1) Appellant Anna Carter waived or relinquished her rights, if any, to an estate by the entirety when she endorsed upon the contract to repurchase (Ex. 1) that the deed be made to George W. Carter and thereafter in consenting and directing that the conveyance of January 20, 1940, be made wherein George W. Carter conveyed the land in question to Parks Carter alone. Gaede v. Smith, 190 S.W.2d 931. (2) George W. Carter had sufficient authority to make the conveyance. There being a conflict in the testimony, it was within the province of the chancellor, sitting without a jury, to resolve the point and his finding should not be disturbed upon review except for compelling reasons. Lambert v. Rodier, 194 S.W.2d 934; Sloan v Dunlap, 194 S.W.2d 32; Byers v. Buettner, 191 S.W.2d 339; Harrety v. Kontos, 184 S.W.2d 195; Colquitt v. Lowe, 184 S.W.2d 420; Steinhoff v. Kinder, 186 S.W.2d 600; Big Six Development Co. v. Mitchell, 138 F. 279; Andris v. Andris, 125 S.W.2d 38; Kerr v. Prudential Ins. Co., 194 S.W.2d 706. (3) Equity will not create a resulting trust in favor of a party who consented to a conveyance to hinder and defraud creditors and made in contemplation of taking bankruptcy. At the time of the conveyance appellant was liable on three outstanding notes and in order to avoid same was contemplating bankruptcy proceedings and had full knowledge of all the facts surrounding the conveyance. Cook v. Mason, 185 S.W.2d 793, 353 Mo. 993; 1 Scott, Textwriter on Trusts, 398; Keener v. Williams, 271 S.W. 489, 307 Mo. 682; Jones v. Jefferson, 66 S.W.2d 555, 334...