Patterson v. Patterson
| Decision Date | 22 December 1906 |
| Citation | 98 S.W. 613,200 Mo. 335 |
| Parties | JAMES L. PATTERSON, Appellant, v. N. B. PATTERSON |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.
Affirmed.
Rechow & Pufahl for appellant.
(1) The court erred in rendering judgment for defendant upon the finding of facts as incorporated in the judgment. Upon the facts as found, the judgment should have been for plaintiff. (2) When the finding of facts is incorporated in the judgment, then it becomes a part of the judgment, and if the conclusion of law is not warranted by the facts thus found this court will reverse and enter up the proper judgment, or reverse and remand the case. Blount v. Spratt, 113 Mo. 48; Land Co. v. Bretz, 125 Mo. 422; Fitzpatrick v. Weber, 168 Mo. 572; Shaffer v Detie, 191 Mo. 388; Leavitt v. Taylor, 163 Mo 170; Hill v. Combs, 92 Mo.App. 251.
C. H Skinker and Delaney & Delaney for respondent.
The finding of facts by the trial court, particularly where such findings are excepted to as in this case, cannot be substituted for the evidence. State ex rel. v. Jarrott, 183 Mo. 204; Fitzpatrick v. Weber, 168 Mo. 573; Hoeller v. Haffner, 155 Mo. 589; Sevon v. Stevens, 143 Mo. 384; Rumsey Mfg. Co. v. Kaime, 173 Mo. 551; Soderberg v. Pierce, 33 Mo.App. 60; Harris Banking Co. v. Miller, 190 Mo. 640. Therefore as plaintiff has failed to embody the evidence in his bill of exceptions, there is nothing left for the court to review, and the appeal should be dismissed.
This is a suit in equity to compel defendant to re-convey to plaintiff certain land in Polk county, which it is alleged was conveyed by plaintiff to defendant in 1898 under the express agreement that it should be reconveyed to plaintiff on demand after his return from a then contemplated journey to Alaska, that the conveyance from plaintiff to defendant was without other consideration than the agreement to re-convey. The answer of defendant admits the conveyance to him, denies the alleged agreement to reconvey, pleads the Statute of Frauds, and pleads also that the conveyance was made by plaintiff to defraud his creditors.
The trial resulted in a judgment for defendant and the plaintiff appealed.
In the record of the judgment before us we read: "This cause is submitted to the court for hearing and the court proceeds to hear the evidence and being sufficiently advised in the premises, the court finds the issues in favor of the defendant and dismisses plaintiff's bill upon the following finding of facts on motion of plaintiff heretofore filed for the finding of facts in this cause which finding is in the following words, to-wit:" then follows what seems to be a review of the evidence covering not only the particular transaction specified in the pleadings, but also other business transactions between the plaintiff and defendant, who are brothers, and business transactions between plaintiff and other members of his family, and the court's conclusions from the evidence.
The pith of those conclusions is as follows:
In 1897 the plaintiff and defendant owned the land in question in the proportion of three-fifths to the plaintiff and two-fifths to defendant; they were also engaged in a mercantile business as partners on or near the premises. At that time the plaintiff was living in the State of California; the defendant was living in Polk county, Missouri, in sole possession of the land and alone managing the mercantile business. In October, 1897, the defendant, at the instance of the plaintiff, prepared a deed to be executed by plaintiff conveying to defendant the plaintiff's three-fifths interest in the land and also a bill of sale of plaintiff's interest in the mercantile business and sent the same to plaintiff in California to be executed. This deed and bill of sale were executed by the plaintiff (that is, signed and acknowledged) but not returned to defendant or delivered, but were carried by plaintiff to Alaska and retained by him there until June, 1901, when he sent them to defendant by mail, with direction to place them on record, which was done. The chancellor drew the conclusion from the evidence that those documents were not intended by the parties to convey the title to defendant for his own use, but to be held in trust for the plaintiff and reconveyed to him at his request, and also that the motive was to place the property in a position where it would be subject to the partnership debts of plaintiff and defendant, incurred in their mercantile business, in preference to certain individual debts which the plaintiff had incurred; that defendant had all the while until just before the filing of this suit recognized the plaintiff's right to the property, but that he had incumbered it largely for indebtedness incurred by the partnership or by himself individually, the evidence is not clear as to which.
The plaintiff's bill of exceptions contains the request of the plaintiff for a finding of the facts and a statement that the facts found are incorporated in the judgment and hence no necessity to repeat them; it contains also a motion for a new trial founded alone on the proposition that on the facts found the judgment should have been for the plaintiff. There is no evidence contained in the bill of exceptions.
The only assignment of error is that on the findings the judgment should have been for the plaintiff.
Respondent asserts that the evidence in the case did not justify the findings, and that as it is an equity case the findings are not binding on this court, and that this court should not reverse a judgment in respondent's favor without forming its own opinion of the facts founded on the evidence.
This is a case in which it is important not only to know on which side is the preponderance of the evidence, but also to know the character of the evidence. The plaintiff pleads a case of express trust which can be proven only by written evidence signed by the party sought to be charged. What the character of the evidence adduced was we do not know. In the petition it is said: "That said agreements and understanding was evidenced by correspondence between the plaintiff and defendant." By this we understand, since the parties lived in different States, that the business was transacted by letter correspondence by mail. The court in its findings alludes to letters that passed between the parties, concerning which the court says: "The court finds that the most material letters in this case on both sides are missing, and it is very hard to ascertain the true facts, and while these facts (meaning those found) are not in exact accordance with the testimony of either and are contradictory somewhat of the testimony of both, they are between the lines of the testimony in the case, and I think the true state of facts."
The first serious question for our consideration is, shall we examine the judgment in this case in the light alone of the so-called findings and reverse it if we should be of the opinion that the facts so found do not justify it?
It is in accordance with the ancient practice in equity courts for the court to make special findings of the facts in issue and recite the same in its decree and this is still frequent and good practice under our code of civil procedure, although special findings are not, under our code, even in equity cases, absolutely required. Section 695, Revised Statutes 1899, which makes it the duty of the court on the timely request of either party to state in writing its "conclusions of fact found separately from the conclusions of law," does not alter or affect in any manner the ancient practice above mentioned of expressing in the decree the facts found. It is not contemplated by that section that "the conclusions of fact" there called for shall be incorporated in the judgment or decree. The statute says they shall be stated in writing, but that does not mean embodied in the judgment. The findings called for by that statute get all their legal force, whatever that may be, when the requirement prescribed by the statute is complied with, that is, when the court states the conclusions in writing separate from the conclusions of law; incorporating them in the judgment or decree adds nothing to them as products of the statute. And on the other hand the findings of the facts by the chancellor, not as in obedience to the statute, but as in conformity to the ancient chancery practice, and incorporating the facts so found in the decree, gives them a character for which they are in no sense indebted to the statute.
The statute is satisfied and its purpose is fully accomplished when the court reduces to writing the facts it finds and causes the paper to be filed; the copying of them in the decree is not called for by the statute, and it adds nothing to them as a statutory requirement, but whatever force, if any, the findings of facts may have by being recited in the decree they have by force of the original chancery practice independent of the statute.
In the case before us the clerk has taken the useless labor to copy in the decree the court's review of the evidence and conclusions thereupon, from which it appears that the court finds in the main the issues for the plaintiff and renders judgment for the defendant. Now the plaintiff asks this court to reverse the judgment because under the facts found the judgment was for the wrong party. This court has authority not only to reverse a judgment of the circuit court which it deems to be erroneous, but in a proper case to enter here the judgment that the trial court should have entered. [Sec. 866, R. S. 1899.] Therefore, if we should now say that the judgment before us must be reversed because it is erroneous on the facts found, it would...
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