Rezabek v. Rezabek

• Decision Date: 06 February 1917
• Citation: 192 S.W. 107,196 Mo.App. 673
• Parties: JOSEPH REZABEK, JR., Administrator, Respondent, v. MARGARET REZABEK, Appellant
• Court: Missouri Court of Appeals

192 S.W. 107

196 Mo.App. 673

JOSEPH REZABEK, JR., Administrator, Respondent, v. MARGARET REZABEK, Appellant

Court of Appeals of Missouri, St. Louis

February 6, 1917

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

AFFIRMED.

STATEMENT.--The original parties to this suit were Joseph Rezabek, plaintiff and Margaret Rezabek, defendant, his wife, but before the final hearing of the case the plaintiff died and the cause was revived in the name of Joseph Rezabek, Jr., administrator of the estate of Joseph Rezabek, deceased.

Plaintiff seeks herein to have the court decree that the defendant wife of the plaintiff, obtained a certain leasehold on property in the city of St. Louis by fraud, and decree that the defendant, wife, holds said leasehold as trustee for the benefit of plaintiff, and that she account to plaintiff for the rents and profits collected by her under said leasehold and that the defendant be decreed to deliver up said lease, and that the same be cancelled, and that the maker of the said lease be required to execute a new lease on the premises in question to plaintiff for the term and upon the conditions and stipulations provided in such surrendered lease, and for such other and further relief in the premises as to the court may seem meet and proper.

The answer of the defendant denies that the said lease was obtained by fraud but alleges the fact to be that the lease was taken in the name of the wife, defendant herein, with the consent of the plaintiff.

The cause was referred to a referee to take the testimony and try all the issues. The referee found, and the finding was sustained by the trial judge, that the plaintiff was entitled to an undivided one-half interest in the said leasehold and the wife was decreed to be trustee for the plaintiff to that extent, and that an accounting of the rents and profits collected by the wife, under this leasehold during the term in question, showed a net balance in favor of the husband, as a holder of a one-half interest in the said leasehold, in the sum of $ 221, for which said sum, together with costs, a judgment was rendered in favor of the plaintiff and against the defendant.

The defendant filed a motion for rehearing, which was overruled and defendant takes appeal to this court.

Plaintiff and defendant were married in 1873. They lived together peacefully until the year 1901, when, owing to plaintiff's addiction to drink, and other causes not very clearly defined in the evidence, their relationship began to be one of constant disagreement. However, it shows that prior to 1901 they lived pretty much the same as any family in their station of life, the wife receiving the earnings of the husband and children, acting as banker for the family.

In 1876 plaintiff purchased a lease upon which there was an unexpired term of four years and a right of renewal for a further term of ten years. The right of renewal was exercised and thus the leasehold is carried up to May 1, 1891, in the name of the husband, plaintiff below. From time to time out of the earnings of the several members of the family, together with such rents as were collected on the improvements, more improvements were built upon the land held under the leasehold until the value thereof had reached approximately $ 5700. In 1891, when the term expired, the plaintiff was in Chicago and because of that fact caused defendant to go to the owner of the said land to renew the lease for a further period of ten years. The owner, plaintiff not being present, caused the renewed lease to be made out in the name of both plaintiff and the defendant and had the wife sign the semi-annual rent notes to cover the rent reserved under the said lease. The husband later on returned to the city and thereupon signed the said semi-annual rent notes which had already been signed by the wife.

This renewed lease covered the period of May 1, 1891 to May 1, 1901, during which period the St. Louis cyclone, in 1896, damaged the improvements on the property and plaintiff and defendant borrowed sums aggregating $ 1000, which money was used in repairing and rebuilding the improvements. No part of this sum, so borrowed, was paid off up to the date of plaintiff's death, January 28, 1909. During the period 1891 to 1901 the wife collected the rent almost constantly from the tenants and the husband paid little attention thereto. This renewed lease did not provide for any further renewal, but did, however, give plaintiff and defendant the right, at the expiration thereof, to remove the buildings thereon within a stated time thereafter.

From this point on, namely, from the expiration of the said lease in the name of both plaintiff and defendant, which expired in 1901, the plaintiff seeks relief.

It appears that in 1901, a month or so before the expiration of the leasehold held in the name of both husband and wife, the husband had been drinking heavily and assaulted his wife. He was arrested and held in the observation ward in St. Louis for three days, and after his release the parties lived separate and apart.

Thereupon the wife took a new lease on the property in her own name for a period of ten years, commencing immediately at the expiration of the leasehold held in her name and that of her husband.

It is this leasehold, taken in the name of the wife alone, which plaintiff alleges was obtained by fraud and seeks to have the wife held to be holding as trustee for him, and for an accounting of the rents and profits that have been collected by the wife under said leasehold.

Judgment affirmed.

Campbell Allison for appellant.

First. Tenancy by the entirety applies to personal property in the State of Missouri. Johnson v. Johnson, 173 Mo. 91, 113; Ryan v. Ford, 151 Mo.App. 689; Craig v. Bradley, 153 Mo.App. 586. Second. Conveyance of leasehold to husband and wife creates a tenancy in the entirety. Sec. 2878 (Common), Revised Statutes 1909; Sec. 2788 (Entirety), Revised Statutes 1909; Gibson v. Zimmerman, 12 Mo. 385; Shields v. Stillman, 48 Mo. 82; Hull v. Stephen, 65 Mo. 670; Russell v. Russell, 122 Mo. 237; Bain v. Bullock, 129 Mo. 117; Frost v. Frost, 200 Mo. 478. Third. Tenancy by the entirety, each hold per tout and not per my; each owns all and neither owns a part; each is entitled to all the rents and profits and neither to a part. Washburn on Real Property (3 Ed.), pp. 553-577; Willard on Real Property, p. 17, sec. 21, p. 178; Russell v. Russell, 122 Mo. 237. Fourth. If an accounting should be decreed as between husband and wife to property held as tenants in the entirety, then equity will decree all the debts which are an equitable lien upon the property, and for which both parties are severally liable, should be paid before one party has judgment against the other for one-half of the rents. Fifth. The allegata and probata must agree. A decree must be responsive to the pleadings. Spindler v. Hyde, 247 Mo. 48; Buck v. Doran, 109 Mo. 51; Cole v. Armour, 154 Mo. 333; McCormick v. Railroad, 154 Mo. 191.

W. B. & Ford W. Thompson for respondent.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J., (after stating the facts).

The findings of fact made by the referee, to whom the cause was referred to take the testimony and try all the issues, and which findings were confirmed by the trial court, are sufficiently supported by the evidence, and we therefore allow them to stand. However, we cannot agree with the conclusion of law drawn therefrom by the referee and the trial judge.

The referee's report states:

"I find that in 1891, when the lease was taken in the joint names of plaintiff and defendant, there was no fraud or imposition practiced by the defendant, Margaret Rezabek, and that thereafter when the plaintiff's intestate signed the lease he must have seen his wife's signature attached thereto, and that he thereby ratified her action in taking a lease in the joint name of herself and husband. The lease thus executed contained no provision for renewal, but did provide that said Joseph Rezabek and Margaret Rezabek, their heirs and assigns, are entitled to remove all buildings at the final expiration of this lease; provided, such removal be made within thirty days thereafter. Prior to the expiration of this lease, the defendant, Margaret Rezabek applied for a new lease in her own name, stating that her husband was crazed with drink, and was unwilling to renew the same. By means of such representation, she prevailed upon the Mercantile Trust Company, acting as the agent for George W Allen, to execute to her a lease dated March 22, 1901, for a term commencing May 1, 1901, and ending April 30, 1911. This lease was made more than a month before the expiration of the lease in the joint names of defendant, Margaret Rezabek, and plaintiff's intestate. Plaintiff's intestate had a substantial interest in the same, including the right to remove the buildings, then located on the premises, which did not expire until May 31, 1901. Prior to the expiration of the lease in the names of plaintiff's intestate and the defendant, Margaret Rezabek, plaintiff's intestate called at the Mercantile Trust Company and sought a renewal of the lease, and he was then informed that a lease had already been made to his wife.

"I am of the opinion that the relation of joint owners of a leasehold estate is similar to tenants in common of a freehold, and that, where one of the parties acquires rights as against the other and adverse to him, the same inures to the benefit of his cotenant.

"I, therefore, recommend that defendant, Margaret Rezabek, account to plaintiff for one-half of the net rental of the property from the first of May, 1901. . .

"I further recommend that a decree be entered herein, declaring that ...