Owens v. Owens

• Citation: 146 S.W.2d 569,347 Mo. 80
• Decision Date: 04 January 1941
• Docket Number: 36879
• Parties: Ethel Owens, Plaintiff-Appellant, v. Brodie Owens, John R. Owens, M. C. Owens, Deller Owens, Aletha Owens, Geraldine Owens, Betty Joe Owens, F. M. Dillard, Trustee, H. E. Doerner, Administrator of the Estate of D. L. Owens, J. R. Hutchison, O. C. Clark, F. L. Owens, Bobbie Owens, Carmine Owens and Elmer Peal, Trustee, Defendants, Brodie Owens et al., Respondents
• Court: United States State Supreme Court of Missouri

146 S.W.2d 569

347 Mo. 80

Ethel Owens, Plaintiff-Appellant, v. Brodie Owens, John R. Owens, M. C. Owens, Deller Owens, Aletha Owens, Geraldine Owens, Betty Joe Owens, F. M. Dillard, Trustee, H. E. Doerner, Administrator of the Estate of D. L. Owens, J. R. Hutchison, O. C. Clark, F. L. Owens, Bobbie Owens, Carmine Owens and Elmer Peal, Trustee, Defendants, Brodie Owens et al., Respondents

No. 36879

Supreme Court of Missouri

January 4, 1941

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Ward & Reeves, Von Mayes and N. C. Hawkins for appellant.

(1) The finding and judgment of the court were and are erroneous because against the law, against the evidence, against the law under the evidence, against the weight of the evidence and for the wrong party, upon the evidence. The above is self-evident upon an examination of the evidence, without citation of authorities, and is in itself a sufficient charge of error to cover the whole case. Edmondson v Waterson, 342 Mo. 1082, 119 S.W.2d 318. The Supreme Court has a conscience of its own. Its judgments must square with its own conscience. To satisfy its own conscience it will examine and weigh the evidence for itself and it will do justice when justice can be ascertained. Miller v. McCaleb, 208 Mo. 575, 106 S.W. 655; Russell v. Franks, 343 Mo. 170, 120 S.W.2d 37; Howard v. Zweigart, 197 S.W. 46. Under the law, and upon defendants' own evidence without mistake, conflict or impeachment of witnesses, the deed of trust was fraudulently given, the foreclosure was fraudulent and a nullity, Brodie Owens did not have any right, title or interest in his own right. Therefore, plaintiff was entitled, as a matter of law, to relief substantially as prayed for in her petition, or other proper relief in equity, under her prayer for general relief. Rucker v. Alton Railroad, 343 Mo. 934, 123 S.W.2d 24. In defendants' evidence there was neither mistake, nor conflict nor contradiction, nor impeachment of witnesses. In such cases the Supreme Court will not defer to the finding or judgment of the trial court. Absent conflict, it will not defer. Plemmons v. Pemberton, 139 S.W.2d 910. If the facts were as defendants themselves asserted and by their witnesses attempted to show, plaintiff is entitled to a widow's rights. (2) The court erred in finding and adjudging that Brodie Owens was the owner in fee. Such finding and judgment was not only against the law under the evidence and against the weight of the evidence, but against defendants' own evidence -- the only evidence in the case on that point. Brodie Owens did not have any right, title or interest in the land, in his own right, upon the evidence. Upon the evidence, Brodie Owens did not and could not occupy any other, higher or better position than that of the holder of the legal title for others -- a constructive trustee for others -- an intermediary for others -- a straw man; one whose acts "should always be viewed with suspicion" -- one who knowingly consents "to act a lie." Suhre v. Busch, 344 Mo. 679, 123 S.W.2d 18; Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d 870; Houtz v. Hellman, 228 Mo. 669, 128 S.W. 263; Ludwig v. Scott, 65 S.W.2d 1036. "Equity regards substance rather than form." Bates v. Dana, 133 S.W.2d 326. In this case, the trial court regarded "form" rather than "substance," and therein erred. Equity has no regard at all for "mummery." The foreclosure was mummery. Arnett v. Williams, 226 Mo. 113, 125 S.W. 1154. "Brodie just took the land with the understanding it came to the children when they got grown . . . The children and this woman 'Ethel Owens.'" Where, as in this case, a person, Brodie Owens, obtains a deed to real estate under such circumstances that it would amount to a fraud to permit him to hold on to his bargain, equity will hold him as trustee for the rightful owner or cancel the deed. Suhre v. Busch, 344 Mo. 679, 123 S.W.2d 18; Norton v. Norton, 43 S.W.2d 1032; Leahey v. Witte, 123 Mo. 212, 27 S.W. 402; Merrett v. Poulter, 96 Mo. 240.

Corbett & Peal for respondents.

(1) The appellant claims she did not sign the $ 1500 note and deed of trust of M. C. Owens, on the land in controversy, and that Dallas L. Owens, her husband, gave the same in fraud of herself and his creditors. This was a disputed question of fact, and the chancellor held that Ethel Owens did sign the note and deed of trust and that it was a valid and subsisting obligation. In equity cases involving close fact questions and conflicting evidence, deference should be given by Supreme Court to the trial chancellor's findings. Neville v. D'Oench, 34 S.W.2d 491, 327 Mo. 34; Smith v. Lore, 29 S.W.2d 91, 325 Mo. 282; Reaves v. Pierce, 26 S.W.2d 611; Scott v. Hill, 50 S.W.2d 110, 330 Mo. 490; McKinney v. Hutson, 81 S.W.2d 951, 336 Mo. 867; Jones v. Peterson, 72 S.W.2d 76, 335 Mo. 242; Green v. Wilks, 109 S.W.2d 859; Andris v. Andris, 125 S.W.2d 38; Bemes, Inc., v. Buster, 108 S.W.2d 66, 341 Mo. 578. (a) Next, under this point, the appellant claims that the note and deed of trust given by Dallas L. Owens and Ethel Owens, his wife, to M. C. Owens was fraudulently given in that the purpose of giving the deed of trust was to prefer M. C. Owens as one of the creditors of Dallas L. Owens and to place the property beyond the reach of the other creditors of Dallas L. Owens. The chancellor found that Ethel Owens signed and executed this note and deed of trust with her husband, Dallas L. Owens. This being true, Ethel Owens was a party to the alleged fraudulent transaction, and in equity is not entitled to the assistance of a court of equity to set the deed aside. Where one is a party to a fraudulent contract, he cannot have the assistance of a court of equity to set the same aside, for the reason he cannot allege his own fraud and have the benefit of it. Feld v. Roanoke Inv. Co., 27 S.W. 635, 123 Mo. 603; Louthan v. Stillwell, 73 Mo. 492; Ward v. Hartley, 77 S.W. 302, 178 Mo. 135; Creamer v. Bivert, 113 S.W. 118, 214 Mo. 473; La Rue v. La Rue, 294 S.W. 723, 317 Mo. 207; Morrison v. Juden, 46 S.W. 994, 145 Mo. 282; Keener v. Williams, 271 S.W. 489, 307 Mo. 682. A debtor may prefer one creditor to another, to secure an indebtedness due, and it is not fraud on his other creditors. Gust v. Hopple, 100 S.W. 34, 201 Mo. 293; Baker v. Harvey, 34 S.W. 853, 133 Mo. 653; Colbern v. Robinson, 80 Mo. 541; Wall v. Beedy, 161 Mo. 625; Meger v. White, 165 Mo. 136; Schroeder v. Bobbitt, 108 Mo. 289.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action in equity to quiet and determine title to certain real estate in Pemiscot County and to recover dower therein. For convenience we shall refer to the parties as plaintiff and defendants.

Plaintiff is the widow of D. L. (Dallas) Owens, who died intestate in Pemiscot County, November 11, 1931, seized and possessed of said real estate, subject to certain liens. Plaintiff seeks (1) to set aside as fraudulent the foreclosure and sale of the real estate to defendant Brodie Owens under a certain deed of trust executed by her deceased husband to his father; (2) to avoid a deed of trust, executed by Brodie Owens after the foreclosure sale, on the ground that the beneficiaries in the deed of trust took with knowledge of plaintiff's claim; (3) to recover dower in the real estate free and clear of debts and liens and (4) to secure an accounting for her share of the rents and profits.

Defendants are (1) the three minor children of D. L. Owens, deceased, to-wit: Aletha, Geraldine and Betty Joe Owens, who were duly represented by a guardian ad litem; (2) deceased's father, M. C. Owens, the beneficiary in the deed of trust that was foreclosed; (3) deceased's mother, Deller Owens; (4) deceased's brothers, Brodie Owens (record title holder), John R. Owens, and F. L. Owens; (5) the wives of Brodie Owens and John R. Owens; (6) the administrator of the estate of D. L. Owens, deceased; (7) the trustee and payees in the deed of trust executed subsequent to the foreclosure sale; and (8) F. M. Dillard, Trustee.

The court found that plaintiff had no right, title or interest in the described real estate; that defendant Brodie Owens was the fee simple owner thereof, subject to the lien of the last deed of trust; that Bobbie Owens, wife of Brodie Owens, had an inchoate right of dower in the property; and that the defendants, other than Brodie Owens and wife and the trustee and beneficiaries in the last deed of trust, had no right, title or interest in the real estate. Only plaintiff appealed.

No question is raised as to the pleadings. There is no dispute as to the relationship of the parties, as above indicated. It further appears that this suit is one of a series of lawsuits in which the parties or some of them have been interested. [See Dillard v. Owens (Mo. App.), 122 S.W.2d 76; Owens' Estate v. Owens (Mo. App.), 107 S.W.2d 150; Sanders v. Owens (Mo. App.), 47 S.W.2d 132; Sanders v. Owens (Mo. App.), 40 S.W.2d 738.] Other litigation is mentioned which did not reach the appellate courts.

The real estate was acquired by D. L. Owens from Willie Capps, November 15, 1929. The deed recites a consideration of $ 2894. On November 29, 1929, D. L. Owens and Ethel Owens (plaintiff) executed a deed of trust in favor of Willie Capps as trustee for Roberta Bussert to secure two notes of D. L. Owens to Roberta Bussert for $ 697 each. On May 3, 1930, D. L. Owens executed a deed of trust to the acting sheriff of Pemiscot County, as trustee for M. C. Owens, to secure a note to M. C. Owens for $ 1500, payable December 31, 1930. The note and the deed of trust show Ethel Owens as a co-maker.

On September 3, 1932, the deed of trust of May 3, 1930 was foreclosed and the property sold to Brodie Owens. A trustee's deed, reciting a consideration...