Pursley v. Pursley
| Decision Date | 29 November 1948 |
| Docket Number | 6779 |
| Citation | 215 S.W.2d 302 |
| Parties | PURSLEY v. PURSLEY |
| Court | Missouri Court of Appeals |
Not to be published in State Reports.
R. C Southall, of Kansas City, and R. L. Ewing, of Nevada, for appellant.
Joe W Collins, of Stockton, for respondent.
VANDEVENTER
The petition in this case originally contained five counts. The first count alleged that plaintiff and defendant were husband and wife from the 15th day of May, 1938 until the 27th day of May, 1946, at which time they were legally divorced. That in the year 1939, they agreed to purchase certain described real estate, 'subject to a Federal Land Bank loan thereon' and that it was 'agreed, understood and intended and contracted to take title to said lands' in both their names, thereby creating an estate by the entirety. The first count further alleges:
'Plaintiff states that in pursuance to said agreement he has furnished a large and substantial part of the purchase money for said farm and in the paying off of said mortgage indebtedness, and worked upon and improved said farm, but that the defendant without any knowledge on the part of J. W. Pursley caused the deed to said real estate to be conveyed to be made to her only.'
Plaintiff further alleged that he had now discovered that defendant had caused the land to be conveyed to herself alone and that the value of the property was $ 4,000.00. He prayed (a) for reformation of the deed so it would be in their joint names (b) or to decree to him a lien against the real estate for what he had invested in it which was the sum of $ 2,000.00 and (c) that the court order the land partitioned.
Count 2 alleged the conversion of funds of plaintiff in the sum of $ 300.00 for which he prayed judgment. Count 3 asked judgment for the sum of $ 704.00 that defendant had drawn as allotments from the government while plaintiff was in the armed forces. Count 4 asked judgment for $ 300.00 for conversion of certain property belonging to plaintiff (an Electrolux Refrigerator.) Count 5 asked for partition of the real estate.
An answer was filed denying each and every allegation of Count 1, except it admitted the marriage and divorce and alleged that the defendant obtained the divorce and was adjudged the innocent and injured party. It further alleged that the land in question was purchased by defendant, with her sole and separate property, that it was taken in her individual name, as the plaintiff well knew at the time and asked that Count 1 be dismissed.
A reply was filed which denied generally the allegations of the answer. On June 18, 1946, a motion was filed by the plaintiff requesting the appointment of a referee or master 'to take and state a mutual account and an account of all the dealings and transactions' between the parties and report said findings to the court. On July 8, 1946, the court appointed a referee. The referee, on November 7, 1946, took the testimony and on January 2, 1947, made a finding that the defendant purchased the land in question, giving for it an equity in a stock of merchandise and an equity in certain lots owned by defendant and situated in Eldorado Springs, Missouri. The referee further found as follows:
The referee further recommended that plaintiff have judgment for $ 1,463.63 and that it be made an equitable lien upon the land.
Defendant filed exceptions to the referee's report but on the 21st day of June, 1947, without passing upon the exceptions, the court rendered its judgment and decree adopting in toto the report and recommendations of the referee. From this judgment, defendant has appealed.
There was no appeal upon the part of plaintiff and there is nothing before this court except the question whether the plaintiff, under the evidence, is entitled to judgment and that it should be an equitable lien upon defendant's real estate. All other questions are out of the case. See Pursley v. Pursley, Mo.Sup., 213 S.W.2d 291.
Plaintiff and defendant were married May 15, 1938. At that time plaintiff was 18 years of age and was in a CCC (Civilian Conservation Corps) Camp. Defendant had been married before and had three children, 13, 14 and 16 years of age, respectively. Defendant at the time of the marriage was the owner of a five and ten cent store, which she operated for some months after the marriage, making considerable profit. She also owned two houses and lots in Eldorado Springs, as well as a warchouse in Texas and had several thousand dollars in money, bonds and stocks. This property and money had come from the estate of her former deceased husband. The evidence does not show that plaintiff had any money or property at the time of the marriage.
A few months after they were married, defendant purchased 13 1/3 acres of land in or near Eldorado Springs and took the title in their joint names thereby creating an estate by the entirety. Plaintiff claimed to have paid half of the purchase price of this property but the overwhelming weight of the evidence is against such claim. A joint bank account was opened and maintained by them during their married life until the plaintiff was inducted into the Army about March 7, 1943. These bank accounts were at Stockton, Neosho, Salina, Kansas and Kansas City. At the time defendant purchased the 13 1/3 acres of land, she cashed enought of her securities to pay for it and also to produce $ 5000.00 more in cash which she and her husband proceeded to spend.
In January, 1939, the defendant purchased the equity in 180 acres of land from O. C. Roe and wife and paid for it by transferring to them her Five and Ten Cent Store and an equity in one of her houses and lots. This was her separate property derived from her former husband. The title to this farm was taken in her name, individually. She testified, (with corroboration) that her husband knew of that fact at the time of the transaction but he testified that he did not know of it until shortly before he entered the Army in February, 1943. The evidence on this question preponderates in favor of defendant. Plaintiff testified that they moved on this farm in 1940, that he operated it and at the same time carried the U.S. Mails for six or eight months at about $ 100.00 per month. That this money was deposited in their joint bank account, that later they moved to Neosho where he worked in a rock quarry for nine or ten months. From there they went to Salina, Kansas, where he claims he worked for ten or twelve months and from there they moved to Kansas City and again worked about the same length of time. His salary at each of these places was also deposited in their joint bank account. He further stated that he made from $ 1200 to $ 1400 on cattle while living on the farm, which was also deposited in their joint bank account. He gave his note for $ 1500.00, the full purchase price of the cattle. When asked on direct examination, how much his profit was on the cattle, he said:
On cross examination, however, he admitted making a profit of only $ 260.00 on the cattle but stated that he made an additional sum on the increase, and that this additional profit was paid on the note but he did not know how much it was.
The defendant testified that the profit on the cattle was about $ 250.00.
He estimated the amount of money he had expended on his wife's farm at $ 2400 or $ 2600. His testimony regarding that is as follows:
'
He admitted that the Ten Cent Store and the house and lot in Eldorado Springs that were traded for the land, was the property of his wife, that she owned it when they were married, although he had alleged in his petition that he furnished a substantial part of the purchase price. He estimated the labor that he put on his wife's farm at approximately $ 400.00. He repaired the barn. He claimed that he patched the roof on her barn and estimated the cost of the materials at $ 20.00 to $ 25.00, that he built some doors 'I expect the lumber and nails and stuff on all the doors would be seventy-five or a hundred dollars,' he spent $ 20.00 for cement, 'I imagine.' All was paid from the joint bank account, to which defendant had made substantial contributions from the profits of her store. He was very indefinite as to how much money he saved out of the jobs carrying the mail or while working at Neosho, Salina and Kansas City. He could give no definite items of expenditure on the farm that would nearly amount to...
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