Mozingo v. Mozingo

• Decision Date: 07 April 1941
• Docket Number: No. 19931.,19931.
• Citation: 149 S.W.2d 897
• Parties: MOZINGO v. MOZINGO et al.
• Court: Missouri Court of Appeals

149 S.W.2d 897

MOZINGO v. MOZINGO et al.

No. 19931.

Kansas City Court of Appeals. Missouri.

April 7, 1941.

Appeal from Circuit Court, Nodaway County; Ellis Beavers, Judge.

"Not to be published in State Reports."

Action by Alta Elizabeth Mozingo against Chloe Mozingo, widow of Irba Earl Mozingo and others to establish and enforce a lien upon land. From an adverse decree, defendants appeal.

Affirmed.

Wright & Ford, of Maryville, for appellants.

Emmett Bartram, of Maryville, and C. B. Dubois, of Grant City, for respondent.

BLAND, Judge.

This is an action to establish and enforce a lien upon land. The chancellor found the facts in favor of the plaintiff and entered a decree in accordance with the prayer of her petition. The defendants have appealed.

The facts show that William Mozingo, a widower, died in 1934, leaving four children, a son and three daughters. The son, Irba Earl Mozingo, died on May 24, 1938. The three daughters, Julia Mozingo, Alma Kalstrip and plaintiff, were all alive at the time of the trial. Plaintiff was a maiden lady 61 years of age at that time. For two years prior to his death Irba Earl Mozingo was ill with cancer. He died leaving his widow, Chloe Mozingo, and four children, to-wit: Delores Mozingo Gex, whose husband is Brooking Gex, William Earl Mozingo, whose wife is Thelma Mozingo, Paul Edward Mozingo, whose wife is Mabel Mozingo, and Don Phifer Mozingo, a single and unmarried man. The widow, the four children and the spouses of the latter are parties defendants in this suit.

William Mozingo was a farmer living in Nodaway County. Being the owner of extensive acreage of farm land in that county, in the year 1929, he divided the same by warranty deeds between his son and two daughters, Julia Mozingo and Alma Kalstrip. No land was given to his daughter, the plaintiff herein, for the reason that she had been an invalid from the age of 14 years and she was not considered able to look after a farm. However, the warranty deed to the son, Irba Earl Mozingo, provided as follows:

"The said Irba Earl Mozingo, or his successor in title, as a part of the consideration for this conveyance, shall pay, and is hereby required to pay to my daughter, Alta Elizabeth Mozingo, the sum of Two Hundred dollars ($200) per year, due and payable on the first day of January of each and every year for, and during the period of the natural life of the said Alta Elizabeth Mozingo, and said annual sum of Two Hundred dollars ($200) to be so paid as aforesaid, shall be and is hereby made a lien and charge upon the lands herein before described, until the final payment of all that may be due or unpaid upon the death of the said Alta Elizabeth Mozingo; provided however, that in the event said annual sum of Two Hundred dollars ($200) shall at any time during the life of the said Alta Elizabeth Mozingo become in default or not be paid when due, then, and in that event, the said Alta Elizabeth Mozingo, shall have the right, at her election to take possession, dominion and control of said lands, and receive the rents, income, use and possession therefrom in lieu of said annual payments for the remainder of her natural life, and this is a covenant in this deed that runs with the land.

"The said Irba Earl Mozingo to have and to hold the real estate hereinbefore described for, and during the period of his natural life, and upon his death, the same to vest absolutely and in fee to his heirs at law, subject only to the provisions herein made for the said Alta Elizabeth Mozingo."

On January 8, 1938, all of the children of the said Irba Earl Mozingo, save a son, Paul Edward, who was not of age, joined in a quit-claim deed conveying their interest in the farm in question to their mother, the defendant, Chloe Mozingo. The deed provided that the grantee should use and occupy the land during her natural life or so long as she remained the widow of Irba Earl Mozingo, and that: "This conveyance is further made subject to the life estate of one Irba Earl Mozingo as created by a deed duly recorded in Book 214, at page 244, of the office of the Recorder of Deeds of Nodaway County, Missouri, and is further subject to the payment of the annual sum as provided for in said deed, to be paid annually to one Alta Elizabeth Mozingo, which said annual payment second party as part of the consideration for this conveyance assumes and agrees to pay and the payment of said annual sum to the said Alta Elizabeth Mozingo is a condition precedent to the right of the second party to use and enjoy the profits thereof during her natural life or widowhood as the case may be as provided herein."

Plaintiff's sister, Julia, owned a house in Maryville, where she and plaintiff lived. She purchased the house in 1924. William Mozingo and his wife, during their latter years, lived at the home of Julia Mozingo in Maryville, where they died.

It is admitted by the defendants that Irba Earl Mozingo and his heirs accepted the warranty deed from William Mozingo, went into possession of the land thereunder and that these circumstances create an implied promise on their part to pay the installments provided for in the deed. There is no contention but that Chloe Mozingo accepted the terms of the quit-claim deed in question and entered into the possession of the land, upon which she now lives.

The principal contention between the parties is whether the payments provided by the warranty deed were made for the year 1932 to and including 1937. Plaintiff's evidence tends to show that the payments were made prior to those accruing in 1932, but that only the sum of $50 was paid for the year last mentioned, and only $44.62 for the year 1937, and no payments were made for the year 1933 to 1936 inclusive, leaving a balance due of $1,105.38. Plaintiff's evidence also tends to show that the defendant, Chloe Mozingo, made payments totalling $65.70 for those years, leaving a balance of $1,039.68, for which the court rendered judgment, together with interest. Mrs. Mozingo paid the installments for the years 1938 and 1939. No personal judgment was prayed or rendered but the court decreed a lien on the farm in question in the amount of the judgment and ordered that the lien be enforced by the sale of the land.

There is no direct evidence on the part of the defendants tending to show that any other payments were made except those admitted by the plaintiff, but defendants' evidence tends to show that plaintiff admitted that substantially the entire indebtedness had been paid.

Plaintiff, in support of her contention as to the non-payment of the indebtedness, introduced her sister, Julia, as a witness in her behalf. Julia Mozingo testified that plaintiff lived with her in Maryville; that her other sister, Alma Kalstrip, also was a resident of Maryville; that the witness kept an account on a calendar of the payments made to plaintiff under the warranty deed from her brother; that Irba Earl Mozingo, her brother, lived upon the farm in question until his death; that he paid $50 of the $200 due for the year 1932; that he paid nothing for the years 1933, 1934, 1935 and 1936; that her brother visited plaintiff and the witness frequently in their home at Maryville during the last years of his life and he would say: "I owe you Alta (plaintiff) but I can not pay you"; that in 1937 he was very sick with cancer; that he came to her house every day when he was able and he would bring eggs and cream with him; that her account showed that he had delivered eggs of the value of $15 during 1937 and hogs of the value of $29.62, making the payment total $44.62 in that year; that this was all that was paid during that year; that plaintiff was always present when her brother visited her home during a period covering two years before his death, when he was sick with cancer; that he stated: "Alta, I have life insurance that will take care of my debts"; that on April 30, 1938, the last time he was at the witness' home prior to his death her brother stated: "Alta, my time on earth is short, we are going to pay you your back payments."

The witness further testified that shortly following the death of her brother she called the defendant, Chloe Mozingo, over the telephone and asked her to "come in"; that the said defendant and her son, Paul Edward, came to the house; that they went out in the garden and defendant said: "Julia, how much did Erba owe Alta", and the witness replied: "He owed her seven years, Chloe"; that the defendant had two sheets of paper and she said: "Look at all his debts"; that they then went back into the house and Mrs. Mozingo said: "Girls, if you will be lenient with me I will get all of this paid"; that in the fall, following the death of her brother, she and the plaintiff went to the home of Mrs. Mozingo and there had a conversation with her; that plaintiff asked Mrs. Mozingo if she could give her $600 on the back payments; that Mrs. Mozingo, replied: "No, Alta, I can not pay you anything"; that "I found out that it takes a lot to run a car and for our living"; that she and the plaintiff were again at the farm about a week later, about the first of August, and plaintiff asked Mrs. Mozingo if she could "pay any on the back rent"; that Mrs. Mozingo said that she could not but said that "she would advance $200.00 for 1939"; that "Alta said `Chloe, do you think this fall you could pay me the back payments'? She said `the prospects are good for corn and I will make some payments' and Alta said, `Chloe, if I need coal will you help me get it' and she said, `I will Alta'"; that Mrs. Mozingo said she had paid debts with the life insurance; that there was never any claim at any time made by Mrs. Mozingo that "these back years were ever paid"; that she never heard of any such claim until after this suit was brought.

The witness further testified that on January 24, 1940, she and plaintiff's attorney, Mr. Bartram, called on Mrs. Mozingo at the farm and served a paper on her...