Regal Realty & Investment Co. v. Gallagher

• Decision Date: 03 July 1916
• Docket Number: No. 17896.,17896.
• Citation: 188 S.W. 151
• Parties: REGAL REALTY & INVESTMENT CO. v. GALLAGHER et al.
• Court: Missouri Supreme Court

188 S.W. 151

REGAL REALTY & INVESTMENT CO. v. GALLAGHER et al.

No. 17896.

Supreme Court of Missouri, Division No. 1.

July 3, 1916.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Suit by the Regal Realty & Investment Company against Daisy A. Gallagher and another. From judgment for defendants, plaintiff appeals. Affirmed as to original judgment, and reversed as to order of amendment of judgment.

Bernard Greensfelder, of St. Louis, for appellant. Joseph C. McAtee, of Clayton, for respondents.

BROWN, C.

This suit is founded on section 2535, Revised Statutes of 1909. Its object is to obtain a judgment or decree establishing in plaintiff as against the defendants, the legal title to two lots of ground in St. Louis county, described as follows: The east 23.25 feet of lot 12 in block 1 of Page avenue subdivision, which we shall designate as tract No. 1; and the east 17 feet of lot 11, and west 16 feet of lot 12 in block 1, of the same subdivision, which we shall designate as tract No. 2.

The defendants are husband and wife. On June 16, 1908, Charles W. Eichor and wife conveyed to the defendants tract No. 2 as tenants by the entirety, for the consideration of $2,900, and on November 17, 1908, the same grantors conveyed to the defendant Daisy A. Gallagher tract No. 1 for the consideration of $600, $200 was paid on the latter and $1,000 on the former at the time of receiving the deeds respectively, and no further payment on the principal of the purchase price of either lot seems to have been made up to the time of the trial in October, 1912. The appellant asserts that these payments were made with the funds of the husband, Michael J. Gallagher, and the titles taken as stated above for the purpose of hindering and defrauding the St. Louis Brewing Association, which had, on March 9, 1905, obtained judgment against him before a justice of the peace in St. Louis for $587.71, a transcript of which was filed in the office of the clerk of the circuit court for the city of St Louis on September 19, 1905, execution issued thereon August 2, 1909, and returned nulla bona August 19, 1911. An alias execution was issued on August 21, 1911, upon which both tracts of land were sold and purchased for $25 by the appellant, who received a sheriff's deed therefor dated November 18, 1911. It is under this deed that it claims title in this suit.

The appellant, at the trial, depended upon the presumption that, the land having been purchased during the coverture of defendants the payments were made from the funds of the husband, and also upon the testimony of the defendants, both of whom were called by it and testified without objection. It produced no other witness. Mrs. Gallagher and other members of her family testified in her behalf. The evidence was to the effect that the defendants were married in 1895, when Mrs. Gallagher was 15 years of age, and had two children born of the marriage, a girl 16 years old and a boy about 14 at the time of the trial. Her father and mother separated in 1897, leaving their three children with the father; the oldest, a girl about 13 years old, the next a girl of 10, and the youngest a boy of 2 or 3 years. Mrs. Gallagher took the children and kept them in the home of herself and husband for about 7 years, until the girls were both married. During this time the defendant Michael J. Gallagher was a bartender and, at times, had the management of a theater with which his bar seems to have been connected, and from his earnings, which are shown by the evidence to have been moderate, he paid the rent of the family home, amounting during a considerable portion of the time to $10 per month, and allowed his wife from $12 to $15 per week, which was paid to her for the purpose of keeping the family. Her sisters and brother increased the family to seven, and for their support Mr. Lehman, the father, testified that he paid her at all times $25 per month, although there is evidence tending to show that at times he paid less. Mrs. Gallagher testified that he paid her from $20 to $25.

Mrs. Gallagher testified, and the trial judge having all the witnesses before him whose testimony bore upon the subject evidently believed her, that during these 7 years she saved in the neighborhood of $1,500, which she hid in various places about the house, $480 of it tacked against the bottom of the sink board, while the remainder had at times been hidden at various places under the carpet and about the wardrobe. In 1905 her husband, in fixing the sink, discovered the money under the board, and put it in his pocket, but she ascertained its absence within an hour, and accused him of having taken it, which he promptly acknowledged, and it was arranged between them that he should keep it and put it in the bank for her, the rest of her money remaining in two cigar boxes, one kept under the wardrobe, and the other on it. She said she distributed it in this manner so that a burglar, should he enter the house would not get it all. During the next year and a half Mr. Gallagher behaved so well that she was convinced she could trust him with the whole. The result was that before 1908 it was all in the bank in his own name, and he checked against it for her and at her direction only. It was in this condition when she became desirous of buying property of her own and wanted the money, and it was transferred to her account in the Mississippi Valley Trust Company. When she determined to purchase the property in controversy from Mr. Eichor the payments were made by checks on this account. She says that she did not know of the judgment until the levy was made upon these lots, and there is no evidence charging her with such notice, either express or implied.

I. The principal question raised by the record is whether the money invested in these lots belonged to Michael J. Gallagher or his wife. The trial court determined that it belonged to the latter. She was about 17 years old when she says she began accumulating this money, and at that time had two children of her own and had taken upon herself the care and sustenance of three others, making altogether a family of seven, for all of whom she seems to have successfully and alone performed her duties of housewife and mother. Her allowance from her husband was moderate, and given to her without reserve, and there is no question as to the faithfulness and economy with which she administered it, looking forward, as every normal woman does to the time when she could enjoy the satisfaction and safety of a home of her own. We think the evidence was ample to authorize the trial court to find that the money had been earned and saved under an arrangement with her husband by which he gave her a specific sum weekly out of which to pay family expenses, and permitted her to receive the amount paid her for the care and support of her father's family, and that under that arrangement whatever she might save by intelligent management and economy should be hers. That...