Rhoads v. Rhoads

• Citation: 119 S.W.2d 247,342 Mo. 934
• Decision Date: 17 August 1938
• Docket Number: 35008
• Parties: Nola Rhoads v. J. A. Rhoads, Appellant
• Court: United States State Supreme Court of Missouri

119 S.W.2d 247

342 Mo. 934

Nola Rhoads v. J. A. Rhoads, Appellant

No. 35008

Supreme Court of Missouri

August 17, 1938

Appeal from Howell Circuit Court; Hon. Will H. D. Green Judge.

Affirmed.

H D. Green and A. W. Landis for appellant.

This being a suit in equity the appellate court will review the evidence de novo and render the decree authorized in equity and which should have been rendered by the chancellor. Home Trust Co. v. Shapiro, 64 S.W.2d 717; Scheerer v. Waltner, 29 S.W.2d 193; Conrath v Houchin, 34 S.W.2d 190. Respondent says she falsely alleged in the divorce action that appellant owned the land she now claims and that she stipulated a property settlement in that suit under which she relinquished all claim to appellant's property and accepted appellant's money in consideration thereof. She comes with unclean hands and should not be heard in equity. Creamer v. Bivert, 214 Mo. 485; Snitzer v. Hampe, 53 S.W.2d 1090; Spicer v. Bank of Fillmore, 71 S.W.2d 121. Irrespective of the doctrine of res adjudicata equity will not aid one who has sought the same relief in separate actions on grounds so inconsistent as to evince a lack of candor and clean hands. Ogden v. Aver, 184 S.W. 72; Spratt v. Early, 199 Mo. 500. Stipulations are interpreted in the light of surrounding circumstances and the result which the parties contemplated. And when filed in a cause they became part of the record under the supervision of the court and the stipulating parties are bound thereby. Polk County ex rel. Seaton v. Harrison, 64 S.W.2d 738; Huegel v. Huegel, 46 S.W.2d 157. The allegation in the divorce suit that appellant owned the land now claimed by respondent followed by a stipulation of property settlement under which respondent relinquished all claim to appellant's property for which relinquishment she received full payment, estopped respondent from making the contrary inconsistent and contradictory claim that the land belonged to her. 10 R. C. L. 698; Lilly v. Menke, 143 Mo. 146; St. Louis v. Union Rys., 263 Mo. 428; Maupin v. Longacre, 288 S.W. 54; Spickard v. Continental Cas. Co., 64 S.W.2d 734; Mayes v. Cunningham, 204 S.W. 404; Lumber Co. v. Nickey, 89 Mo.App. 270; Grier v. Canada, 107 S.W. 970; Layne v. Layne, 90 S.W. 35; Dalton v. Eller, 284 S.W. 68; Corder v. Sprouse, 100 S.W.2d 1001; Davis v. Donaldson, 91 S.W.2d 763; Texas Moline Plow Co. v. Klapproth, 164 S.W. 399.

Homer Rinehart for respondent.

(1) Points raised in motion for new trial but not contained in the assignment of errors, held abandoned. Kenage v. Kenage, 3 S.W.2d 1041; Wearen v. Woodson, 268 S.W. 648. (2) Marriage is not only good but valuable consideration for making a deed. Wood v. Read, 131 Mo. 553. (3) In an equity case the Supreme Court is not bound on appeal by the chancellor's finding. However, the appellate court ordinarily gives great weight thereto and will usually refer to them where they are based on oral testimony heard by him, unless the appellate court is convinced they are clearly erroneous and not based upon substantial testimony. Stibal v. Nation, 98 S.W.2d 729. (4) In accordance with the general rule an allegation or admission in a former suit will ordinarily estop the party making them from denying the truth in a subsequent action or proceeding in which he is a party to the prejudice of his opponent, where the usual elements of estoppel by conduct are present. 21 C. J., p. 1233, sec. 238. In other words the elements of equitable estoppel, or estoppel in pais apply in cases wherein the grounds alleged as estoppel as a defense is an allegation or admission in the pleading in a former action, appellate courts of this State have followed this rule. Aylor v. Aylor, 184 Mo.App. 607, 170 S.W. 704; Hall v. Dodson, 274 S.W. 465; Roberts v. Roberts, 291 S.W. 485; Charter Oak Inv. Co. v. Felker, 60 S.W.2d 657. If the truth be known by both parties or if they have equal means of knowledge, there can be no estoppel. Bales v. Perry, 51 Mo. 449. If the facts be known by both parties or if they have equal means of ascertaining them there can be no estoppel. Spence v. Renfrow, 179 Mo. 417; Grafeman Dairy Co. v. Northwestern Bank, 235 S.W. 443. In the case of Gentry v. Gentry, 122 Mo. 221, the rule as stated in Biglow on Estoppel (5 Ed.), 570, was stated and approved in the following language: First: There must have been a false representation or a concealment of material facts. Second: The representation must have been made with knowledge, actual or virtual, of the facts. Third: The party to whom it was made must have been ignorant, actually or permissively, of the truth of the matter. Fourth: It must have been made with the intention, actual or virtual that the other party should act upon it. Fifth: The other party must have been induced to act upon it. Party pleading estoppel must have been ignorant of the truth, hence, estoppel cannot be founded upon facts clearly within the knowledge or means of knowledge of both parties. Charter Oak Inv. Co. v. Felker, 60 S.W.2d 655; Harris v. Nicholas Inv. Co., 25 S.W.2d 484; State ex rel. v. Sevier, 73 S.W.2d 373. (5) The question of laches is addressed to sound discretion of the chancellor. 21 C. J., pp. 218-219; Wood v. White Eagle Oil Refining Co., 274 S.W. 901.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

By this suit, tried to the court as an action in equity, the plaintiff seeks to have adjudged in her the title to forty acres of land in Howell County, described as: -- the northeast quarter of the northeast quarter of Section nineteen, Township twenty-two, Range nine. She prevailed below and defendant appealed. We shall refer to the parties as plaintiff and defendant. Plaintiff contends that the defendant conveyed said land to her by warranty deed which, however, was not recorded, and that he afterwards wrongfully obtained possession of and destroyed the deed, leaving the title still appearing of record in him. Defendant denies that the deed was ever delivered and also pleads estoppel.

This suit was instituted April 1, 1935. Prior thereto plaintiff and defendant had been twice married to and divorced from each other. The first marriage and divorce cuts no figure in this case except to explain the source of plaintiff's title to another tract of land of about forty-one acres which she admittedly owned at the time of her second marriage to defendant. They were married to each other the second time on April 15, 1933, and were divorced in February, 1935. Reference hereinafter to the divorce or divorce proceedings will be to said second divorce. There was no issue of either of those marriages, but each party had children by former marriages.

Plaintiff testified in substance that defendant entreated her to remarry him and she agreed to do so if he would deed her the forty acres here in question, which he agreed to do; that they went to Koshkonong, Missouri, on April 13, 1933, where the deed was made out, signed and acknowledged by defendant, and that on April 15th he delivered it to her, after which they were married; that she placed the deed (without having had it recorded) in a lock box in their home, which box, after a certain family difficulty in September, 1933, defendant took to a bank in West Plains, where it remained for a time. It was later returned to the home but the deed was missing therefrom. Plaintiff was corroborated as to delivery of the deed by her son, who testified he was present when it was delivered.

Defendant's testimony on this issue was to the effect that while he had signed and acknowledged the deed he had never delivered it. He testified that shortly before the second marriage plaintiff had said she wanted the "home forty" -- the one in controversy and on which the buildings were located, -- and that he told her he would "swap" her that forty for the forty-one acres she owned, and that she at first agreed; that he executed the deed for that purpose but did not deliver it, since plaintiff was not then prepared to make her deed; that his deed was never placed in the lock box but he kept it in his possession till plaintiff told him she had decided not to trade and he then destroyed the deed. At the divorce trial he had testified that he had never "made a deed down at Koshkonong." In the instant case, after he admitted he had there signed and acknowledged a deed, he was cross-examined at some length about said testimony given in the divorce hearing. He claimed to be unable to remember just what testimony had been given by either him or the plaintiff regarding the "making" of the deed at Koshkonong, but did say in substance that as he remembered it, the question asked him was whether he had delivered a deed.

On the question of estoppel defendant contends that plaintiff is conclusively estopped by the allegations of her divorce petition to claim title to the land in question and, further, that if not thus conclusively estopped she is precluded from recovery on principles of equitable estoppel or estoppel in pais.

The facts bearing upon this issue are in substance as follows: In her divorce petition the plaintiff, after setting forth the grounds on which she sought the divorce, alleged "that defendant is the owner of a good and well improved farm of 160 acres situated in the County of the value of three or four thousand dollars," and of personal property consisting of thirteen cattle, farm machinery, household goods, "and other specific property," and "several hundred dollars" in money and notes and that he had a "good position as salesman with a motor company." The petition prayed divorce and alimony. It was signed by the plaintiff and verified by her "according to her best knowledge and belief" in the statutory form. Defendant's pleading in the divorce suit is not...