Nickels v. Cohn, s. 15444

• Citation: 764 S.W.2d 124
• Decision Date: 05 January 1989
• Docket Number: Nos. 15444,15472 and 15480,s. 15444
• Parties: Terry Lee NICKELS, Connie N. Nickels, James Gary Nickels and Norma N. Nickels, Plaintiffs-Respondents, v. Arthur Joe COHN, Christy L. Cohn and Christy L. Cohn, Personal Representative of the Estate of Harvey E. Nickels, Deceased, Defendants-Appellants, and Rita Jane Nickels, Waynesville Security Bank, Claude H. Morgan, Trustee for Waynesville Security Bank, Central Production Credit Association, Milton F. Yeary, as Trustee for Central Production Credit Association, Lloyd Green and Anna M. Green, Defendants. Terry Lee NICKELS, Connie N. Nickels, James Gary Nickels and Norma N. Nickels, Plaintiffs-Respondents, v. CENTRAL PRODUCTION CREDIT ASSOCIATION and Milton F. Yeary, Trustee for Central Production Credit Association, Defendants-Appellants, and Rita Jane Nickels, Arthur Joe Cohn, Christy L. Cohn and Christy L. Cohn, Personal Representative of the Estate of Harvey E. Nickels, Deceased, Waynesville Security Bank, Claude H. Morgan, Trustee for Waynesville Security Bank, Lloyd Green and Anna M. Green, Defendants. Terry Lee NICKELS, Connie N. Nickels, James Gary Nickels and Norma N. Nickels, Plaintiffs-Respondents, v. Lloyd GREEN and Anna M. Green, Defendants-Appellants, and Rita Jane Nickels, Arthur Joe Cohn, Christy L. Cohn and Christy L. Cohn, Personal Representative of the Estate of Harvey E. Nickels, Deceased, Waynesville Security Bank, Claude H. Morgan, Trustee for Waynesville Security Bank, Central Production Credit Association, Milton F. Yeary, as Trustee for Central Production Credit Association, Defendants.
• Court: Missouri Court of Appeals

Page 124

764 S.W.2d 124

Terry Lee NICKELS, Connie N. Nickels, James Gary Nickels and Norma N. Nickels, Plaintiffs-Respondents, v. Arthur Joe COHN, Christy L. Cohn and Christy L. Cohn,

Personal Representative of the Estate of Harvey E.

Nickels, Deceased, Defendants-Appellants,

and

Rita Jane Nickels, Waynesville Security Bank, Claude H.

Morgan, Trustee for Waynesville Security Bank, Central

Production Credit Association, Milton F. Yeary, as Trustee

for Central Production Credit Association, Lloyd Green and

Anna M. Green, Defendants.

Terry Lee NICKELS, Connie N. Nickels, James Gary Nickels and Norma N. Nickels, Plaintiffs-Respondents, v. CENTRAL PRODUCTION CREDIT ASSOCIATION and Milton F. Yeary,

Trustee for Central Production Credit Association,

Defendants-Appellants,

and

Rita Jane Nickels, Arthur Joe Cohn, Christy L. Cohn and

Christy L. Cohn, Personal Representative of the Estate of

Harvey E. Nickels, Deceased, Waynesville Security Bank,

Claude H. Morgan, Trustee for Waynesville Security Bank,

Lloyd Green and Anna M. Green, Defendants.

Terry Lee NICKELS, Connie N. Nickels, James Gary Nickels and Norma N. Nickels, Plaintiffs-Respondents, v. Lloyd GREEN and Anna M. Green, Defendants-Appellants, and Rita Jane Nickels, Arthur Joe Cohn, Christy L. Cohn and Christy L. Cohn, Personal Representative of the Estate of

Harvey E. Nickels, Deceased, Waynesville Security Bank,

Claude H. Morgan, Trustee for Waynesville Security Bank,

Central Production Credit Association, Milton F. Yeary, as

Trustee for Central Production Credit Association, Defendants.

Nos. 15444, 15472 and 15480.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 5, 1989.

Motion for Rehearing or Transfer

Denied Jan. 26, 1989.

W.H. Thomas, Jr., Thomas, Birdsong, Clayton & Haslag, Rolla, for plaintiffs-respondents.

John Z. Williams, Williams, Smallwood & Crump, Rolla, for defendants-appellants Arthur Joe Cohn, Christy L. Cohn and Christy L. Cohn, Personal Representative of the Estate of Harvey E. Nickels, Deceased.

Thomas W. Millington, Schroff, Glass & Newberry, Springfield, for defendants-appellants Cen. Production Credit Ass'n and Milton F. Yeary, as Trustee for Central Production Credit Ass'n.

Thomas J. O'Neil, Lebanon, for defendants-appellants Lloyd Green and Anna M. Green.

HOGAN, Judge.

Plaintiffs Terry Lee and Gary Nickels and their wives brought this action seeking, among other things: a) to declare a quitclaim deed fraudulent and void; b) to grant specific performance of a pre-emptive covenant contained in another quitclaim deed, and c) to subordinate the interest of defendant Central Production Credit Association to the pre-emptive covenant. At the request of defendants Cohn, the trial court made findings of fact and conclusions of law. Those findings and conclusions are considerably more extensive than those correctly requested by defendants Cohn. See Dardick v. Dardick, 670 S.W.2d 865, 867, 51 A.L.R.4th 1 (Mo. banc 1984). Nevertheless they form a proper basis for the assignment of error and for review on appeal. Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982); Liebelt v. Commerce Bank of Springfield, 703 S.W.2d 77, 78 (Mo.App.1985); Lohrmann v. Carter, 657 S.W.2d 372, 376 (Mo.App.1983). Further, in this instance, they furnish a useful guide to the factual background of the case and the issues involved. We shall set them forth only slightly paraphrased. The docket entry which precedes the findings of fact and conclusions of law is as follows:

"Now on this 31st day of August, 1987, ... come the Plaintiffs, in person and by their attorney ...; and come the Defendants, Lloyd Green and Anna M. Green, in person, and by their attorney, ... Defendant Central Production Credit Association by its officers and its attorney ... and the remaining Defendants by their attorneys.... Defendants, Waynesville Security Bank and Claude H. Morgan, Trustee for Waynesville Security Bank, state that they have and claim no interest in the property at issue and are, therefore, dismissed as per stipulation filed. Thereupon, the parties submit Counts I and II of Plaintiffs' Petition to the court upon the pleadings, evidence and proof adduced, provided, however, that the determination of the amount to be paid by the Plaintiffs, Terry Lee Nickels and James Gary Nickels, if specific performance is ordered, shall be made after further hearing...." (Emphasis ours.)

The court then recited that the cause was taken under advisement, and on September 28, 1987, filed its findings of fact and conclusions of law. Paragraphs (1) and (2) are that plaintiffs Terry Lee Nickels and Connie Nickels are husband and wife and plaintiffs James Gary Nickels and Norma N. Nickels are also husband and wife. The findings of fact continue thus:

"3. Harvey E. Nickels died on March 19, 1986, leaving as his heirs and devisees the following individuals:

"(a) Arthur Joe Cohn, 419 East Kingsbury, Springfield, Greene County, Missouri 65804;

"(b) Christy L. Cohn, 1759 South Delaware, Springfield, Greene County, Missouri 65804;

"(c) Rita Jane Nickels (now Rita Jane Campbell), P.O. Box 459, Waynesville, Pulaski County, Missouri 65583;

"(d) James Gary Nickels, Highway T, Waynesville, Pulaski County, Missouri 65583;

"(e) Terry Lee Nickels, 800 Washington Street, Oklahoma City, Oklahoma, and

"(f) Darrell Gene Nickels, 600-A Nickels Drive, Waynesville, Pulaski County, Missouri 65583.

"4. Defendant Rita Nickels (now Campbell) was the surviving spouse of Harvey E. Nickels, deceased. James Gary Nickels, Terry Lee Nickels and Darrell Gene Nickels are the sons and the only surviving children of Harvey E. Nickels, deceased. Arthur Joe Cohn and Christy L. Cohn are devisees of all real property owned by Harvey E. Nickels at the time of his death pursuant to the last will and testament of Harvey E. Nickels which has been duly admitted to probate by an order of the Probate Court of Pulaski County, Missouri, in May, 1986.

"5. Defendant Rita Jane Nickels (now Campbell), personal representative of Harvey E. Nickels' estate, is the acting personal representative of the aforesaid estate having been appointed by the Circuit Court of Pulaski County, Missouri, Probate Division, by an order entered prior to June 26, 1986.

"6. On or before 1960, Harvey E. Nickels was married to Wanda L. Nickels; and they owned real property located in Pulaski County, Missouri, more particularly described as follows: [Here the court described a 227-acre parcel of realty situated in Pulaski County. The tract described is a farm and is referred to in the record as 'the Prewitt farm'].

"7. On April 26, 1968, the marriage of Harvey E. Nickels and Wanda L. Nickels was dissolved; and, pursuant to a property settlement agreement, Wanda L. Nickels agreed to quitclaim to Harvey E. Nickels the property described in paragraph 6, subject to the covenant that, if Harvey E. Nickels desired at any time to sell the property, he was to first give the parties' three sons, i.e., Terry Lee Nickels, James Gary Nickels and Darrell Nickels, fifteen (15) days' notice of his desire so to sell; and, further, if within (15) days the sons, or any one of them, desired to purchase said property, said son or sons would have the right to do so upon the payment to Harvey E. Nickels of a sum equal to the original cost of the property ($38,500.00) plus the additional payment of the cost of capital improvements made on the property since the original purchase of the property by Harvey E. Nickels and Wanda L. Nickels.

"8. Thereafter, pursuant to the aforesaid property settlement agreement, Wanda L. Nickels, on April 26, 1968, conveyed said property [the 227-acre tract] to Harvey E. Nickels, subject to the following covenant:

If the Grantee desires at any time to sell this property he shall first give the parties' three sons 15 days notice of his desire so to sell and if within said 15 days they or anyone or more of them shall desire to purchase said property he or they shall have the right to do so upon the payment to the Grantee [of] a sum equal to the original cost of $38,500.00 paid for said property by the present parties to this agreement, plus the additional payment of the amount of capital improvements made on said property since the original purchase of said property by these parties to this agreement.

Said quitclaim deed was filed on December 10, 1968, in Book 217, at page 492, in the Office of the Recorder of Deeds of Pulaski County, Missouri.

"9. Thereafter, Harvey E. Nickels caused to be filed a quitclaim deed dated September 17, 1971, allegedly between Gary Nickels and Norma Nickels, husband and wife, Terry Nickels and Connie Nickels, husband and wife, and Darrell Nickels, a single man, to Harvey E. Nickels, by which quitclaim deed Plaintiffs allegedly conveyed all right, title and interest in and to the property described in paragraph 6 to Harvey E. Nickels. Said alleged quitclaim deed was recorded on September 23, 1971, in Book 242, at page 177, in the Office of the Recorder of Deeds of Pulaski County, Missouri.

"10. Plaintiffs did not sign said quitclaim deed, and the signatures thereon alleged to be those of Plaintiffs are forgeries.

"11. At the time said quitclaim deed was recorded, Plaintiffs did not know of the alleged deed and the insertion of their names as grantors to Harvey E. Nickels.

"13. Thereafter, Harvey E. Nickels and Rita Jane Nickels, husband and wife, mortgaged the above-described property by deed of trust to Milton F. Yeary as Trustee for Farmers Production Credit Association. Said deed of Trust was dated December 3, 1980, and filed December 9, 1980, in Book 311, at page 25 in the Office of the Recorder of Deeds of Pulaski County, Missouri.

"14. Thereafter, Harvey E. Nickels and Rita Jane Nickels, husband and wife, mortgaged said property by deed of trust to Milton F. Yeary, Trustee for Farmers Production [Credit] Association. Said deed of trust was dated April 15, 1982, and filed April 22, 1982, in ...