Pfeiffer v. Pfeiffer, 48854

• Decision Date: 12 March 1962
• Docket Number: No. 48854,No. 2,48854,2
• Parties: Andrew S. PFEIFFER, Respondent, v. Elizabeth PFEIFFER, Appellant
• Court: Missouri Supreme Court

Page 934

355 S.W.2d 934

Andrew S. PFEIFFER, Respondent, v. Elizabeth PFEIFFER, Appellant.

No. 48854.

Supreme Court of Missouri, Division No. 2.

March 12, 1962.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 9, 1962.

R. M. Gifford, Green City, for appellant.

L. E. Atherton, Milan, for respondent.

BARRETT, Commissioner.

The general purpose of this phase of this proceeding by Andrew S. Pfeiffer is to secure a declaration that his divorced wife, Elizabeth, has no interest in certain real property. Specifically it is a suit to set aside a deed from Andrew to Andrew and his then wife as tenants by the entirety. Originally, in January 1960, the action was one for a divorce, but by an amended petition in March 1960 there were three counts, (1) for a divorce, (2) to set aside the deed, and (3) an alternative count for partition in the event it was decreed that the parties were tenants in common. The divorce suit was tried first in March 1960 and Andrew was granted a divorce. In February 1961 this phase of the proceeding was tried and the trial court found that 'the allegations contained in plaintiff's petition are true,' and, therefore, that the deed 'should be set aside and for naught held.' The court accordingly set the deed aside and the divorced wife, Elizabeth, has appealed.

The following are the general circumstances in which this litigation arose. After some forty years of marriage and living on a 202 1/2 acre farm in Sullivan County, Andrew's first wife, Lula, died June 3, 1957. It does not appear just where Elizabeth lived, but she had known Andrew for sixteen years and had been twice married and divorced. After his first wife's death and a courtship of three or four months Andrew and Elizabeth were married on November 4, 1957, and thereafter lived on the farm until their separation and the filing of the divorce suit in January 1960. As grounds for divorce Andrew alleged 'general indignities,' that Elizabeth spent money recklessly, that since December 1959 and over his protests she 'insisted on keeping a young man there,' that she called him vile, vulgar and obscene names, and by her actions made him 'the laughing stock of his friends and acquaintances.' Elizabeth was present in court with her lawyer when the divorce action was heard but offered no evidence. The court found that Andrew was the innocent and injured party and granted him a divorce 'on the grounds set forth in his petition.'

The second count of the petition, with which the court is immediately concerned, stated that on December 30, 1958, he had conveyed the farm to Elizabeth and himself as tenants by the entirety. He alleged that shortly after the marriage Elizabeth began to insist, since he had no children and they 'were going to live together the rest of their lives,' that the land should be conveyed so that an estate by the entirety would exist in them. He alleges that 'said statements and representations were made many times by defendant to plaintiff' and that plaintiff 'finally relying on the fact that they would always live together' accordingly executed the deed. He alleged that Elizabeth had caused him to give her large sums of money and had induced him to borrow large sums of money 'on the real estate' which, he said, she had converted to her own use or dissipated. And finally, he charged that immediately after the execution of the deed she 'began a studied course of action to bring about a separation of the parties, with the intent on her part to thus acquire an interest in said lands and to cause plaintiff to separate from her,' all of which culminated in a divorce. Then he says, 'That at no time did defendant ever intend to live with plaintiff until his death but said inducements were made with the intention only of mulcting this plaintiff and with no intention to live with him.' For these reasons Andrew prayed the court to ascertain and determine 'the right, title and interest of the parties' in the farm.

It should be carefully noted that Andrew does not allege that Elizabeth by fraud and false representations induced him to enter into the marriage (Turner v. Turner, 44 Mo. 535), he alleges that shortly after they were married she made the representations and induced the conveyance. The respective ages of the parties does not appear, they apparently attached no significance to the fact, but from the fact that Andrew had married and lived on the farm for forty years it is assumed that he is about sixty. In any event, this is not a claimed instance of a predatory young woman preying upon a senile old man and exerting undue influence or in bad faith initially entering into the marriage for the purpose of securing the conveyance. Andris v. Andris, 343 Mo. 1162, 125 S.W.2d 38; Lins v. Lenhardt, 127 Mo. 271, 29 S.W. 1025. Futhermore, this action does not involve an antenuptial contract (Leavy v. Cook, 171 Mo. 292, 71 S.W. 182), and, admittedly, the property is not homestead or a statutory allowance (V.A.M.S. Sec. 474.140), and Elizabeth is not claiming any property 'by virtue of the marriage.' V.A.M.S. Sec. 452.090; Coleman v. Coleman, 147 Ky. 383, 144 S.W. 1, 39 L.R.A., N.S., 193; Saunders v. Saunders, 144 Mo. 482, 46 S.W. 428. And, Andrew does not charge Elizabeth with adultery, nor with conspiring with and eloping with a paramour after the conveyance. Turner v. Turner, supra; Thomas v. Thomas, 27 Okl. 784, 109 P. 825, 35 L.R.A.,N.S., 124. Nevertheless it is assumed that the petition states a claim upon which relief can be granted and that the theory of the action is some form of marital misconduct, misrepresentation of intention and fraud. Culbertson v. Young, 86 Mo.App. 277; Sims v. Sims, 101 Mo.App. 407, 74 S.W. 449; Steines v. Steines, 338 Mo. 335, 89 S.W.2d 520; annotation 29 A.L.R. 198.

Returning to the allegation with respect to money, Andrew does not seek a money judgment but claims that as a part of her intention with respect to the land she induced him to give her large sums or caused him to spend large sums and finally encumber the property. Within two months of the marriage she wanted to write checks. Andrew's response was, "That's all right.' I says, 'I'll go and make a joint bank account,' and that's what I did,' and she wrote checks 'the same as I did.' Before his marriage to Elizabeth Andrew owed $3500, he had $500 in the bank, 1000 bushels of corn, 1200 bales of hay, sheep, cattle and horses. When he filed the divorce suit two years later he had an equal amount of feed and livestock but his indebtedness had increased $7500 and he owed $11,000. Once, in discussing finances, he recounted, 'Well, I said, 'How much more do you want?' I says, 'You have already got me broke.' She says, 'Goddamn, you! I aim to break you!''

It is not necessary to detail Andrew's testimony with respect to finances, there were some small items but there is no proof that Elizabeth wrote checks for large sums for her personal use. It turned out that the $7500 indebtedness consisted of $1500 for repairing and shingling the house, $1000 for a bathroom, $200 for furniture, $165 for a deepfreeze, $75 for his hospitalization, $215 for a cow and numerous items of farm machinery. As to some of these latter items, for example a hay baler, Andrew said, 'I still owe for it. Good God Almighty! Don't poke them things on me. I still owe for it.' However, as to repairing the house, the bathroom, and the furniture, he repeatedly testified that they talked these matters over and mutually agreed to the expenditures. Usually he put it this way, 'I said, 'If we aim to live together the rest of our lives,' I said, 'I don't care about the furniture in the house.' I said, 'Just get whatever you want to.'' He always concluded, 'I didn't object to a thing until she brought Hopper (the young man) there in my house and kept him. That's the only objection ever I made to her and she'll tell you the same thing.'

When she was served with the divorce petition and left the farm Andrew claims that he gave her $100. But Elizabeth says, 'I did not take anything but a few clothes, and a few personal things.' She says that Andrew refused to give her any sum, but they had spent $50 of her mother's money to buy Andrew a new suit and finally he gave her $50 and 'that's all the money I had when I left.' And aside from his agreeing to the expenditures, when the indebtedness grew from $3500 to $11,000 and it became necessary to borrow money from the bank in 1960, both Andrew and Elizabeth signed the note and executed the deed of trust encumbering the farm. There is no evidence that she 'converted' large sums to her own use, and it is not apparent how the incurring of the $11,000 indebtedness, for which she too is obligated, benefited her personally or furthered her alleged intention of securing to herself an interest in the farm.

As to the deed to the plaintiff and the defendant as tenants by the entirety, Elizabeth says that there was casual discussion of it before the marriage. But Andrew says, 'it was about eight months after we was married, she begin on the land then. * * * She said that we neither one have got no kids and said the thing to do, would be to make a joint deed out of it. Well, I said, 'If you still feel that way--' ans she said, 'We're going to live together all the rest of our lives, till one of us dies.' She said that time and again. 'Well,' I said, 'if you still feel that way,' I said, 'I think two parties ought to be that way.' 'Well,' she said, 'We've got to live together,' and I said, 'Well, we'll go, and' I said, 'make a joint deed out of it,' and we took out one day and come up here to Lehman Atherton's office and she had the deed in her pocketbook---- * * * (T)he 30th day of December in '58, is when we made the deed.' And, another reason for the 'joint deed' was to save probate expenses to the survivor. In any event, they went to Andrew's lawyer in Milan and discussed all these matters with him, including, to quote the...