Richardson v. Kuhlmyer

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Richardson v. Kuhlmyer, 250 S.W.2d 355 (Mo. 1952)
• Decision Date: 14 July 1952
• Docket Number: No. 1,No. 42854,42854,1
• Parties: RICHARDSON et al. v. KUHLMYER et al

Page 355

250 S.W.2d 355

RICHARDSON et al. v. KUHLMYER et al.

No. 42854.

Supreme Court of Missouri, Division No. 1.

July 14, 1952.

Gresham, Hizer & Boughan, Walter J. Gresham, Kansas City, for appellants.

Rex Parr, Kansas City, for respondents.

COIL, Commissioner.

Plaintiffs-respondents brought an action to partition improved real estate, located in Jackson County, equally among plaintiffs and the three individual defendants, and to establish an equitable lien against the defendants' shares for improvements made and for other expenditures.

Defendants-appellants, the heirs of Edith A. McBride and the administrator of her estate, by answers and counterclaims, denied that plaintiffs had any title to or interest in the property, alternatively claimed offsets against the plaintiffs' asserted equitable lien, and sought a judgment for $4,500 and asked that it be declared a lien against any interest plaintiffs might have in the real estate.

At the time suit was filed, plaintiffs were husband and wife. Prior to the suit, plaintiff husband had conveyed to plaintiff wife his interest in the real estate. During the pendency of the suit they were divorced.

The essential facts are undisputed. The real estate was conveyed to plaintiff William A. Richardson and Edith A. McBride by a special warranty deed deted January 31, 1946. The named grantees were William A. Richardson and Edith A. Richardson, husband and wife. These grantees were in fact not husband and wife at the time and were never married. They, at the time, intended to be married. Grantee Edith A. Richardson was, at the time of the conveyance and at all times thereafter until her death, Edith A. McBride, mother of the three individual defendants. At the time of the conveyance, the property was subject to a first deed of trust securing a note for $1,474, and on March 30, 1946, the grantees further encumbered the property for $252 evidenced by a note secured by a second deed of trust. The last mentioned note was paid on August 1, 1947, and the second deed of trust released. Edith A. McBride died February 11, 1950. At the time of her death, the balance due on the note secured by the first deed of trust was $735.77.

The special warranty deed to William A. Richardson and Edith A. McBride (there described as Edith A. Richardson) was not in evidence. Plaintiffs, in their petition, however, take the position that the grantees in the deed, even though described as husband and wife, being unmarried, were in fact tenants in common. We shall, therefore, consider that William A. Richardson and Edith A. McBride were cotenants. Defendants made certain contentions to the contrary which we shall notice hereinafter. Plaintiffs contended that upon the death of Edith A. McBride her heirs (the three children of Edith A. McBride) became tenants in common with plaintiff William A. Richardson, and that William A. Richardson owned an undivided one-half interest and each of the individual defendants owned an undivided one-sixth interest.

Plaintiff William A. Richardson, to support his claim to certain credits allegedly chargeable against defendants' interests, testified (over objection on the ground that he was incompetent under RSMo.1949, Sec. 491.010, V.A.M.S.) that he made a down payment on the property of $250; that he paid the $252 note secured by the second deed of trust; that he made payments of $738.23 on the note secured by the first deed of trust; and that he expended $1,245.46 for improvements while he and Mrs. McBride occupied the property. Co-plaintiff Molly Faye Richardson, who at the time she testified had divorced William A. Richardson and had restored her former name of Miller, testified that after William A. Richardson conveyed the property to her, she had made monthly payments totaling $220 on the note secured by the first deed of trust and had, in December 1950, paid $22.54 taxes on the property.

Other testimony related to the value of personal property which was in the house occupied by William A. Richardson and Mrs. McBride at the date of her death. It was agreed that Edith A. McBride, during her lifetime, had taken out a $2,500 life insurance policy in which she named William A. Richardson as beneficiary, describing him therein as her husband. It was further agreed that the proceeds of this policy (apparently $2,500) were paid to William A. Richardson upon the death of Mrs. McBride.

Testimony was heard on September 7, 1950, and the cause was taken under advisement. On January 24, 1951, a pleading was filed denominated 'Interplea of Administrator of Edith A. McBride, Decd.' by which, apparently without objection, Daniel A. McBride, as the duly appointed administrator of the estate of Edith A. McBride, deceased, intervened and adopted the pleadings of the individual defendants and prayed judgment against plaintiffs for $4,500. The $4,500 claimed consisted of two items, viz., $2,500, the proceeds of the insurance policy, and $2,000, the avereed value of Edith A. McBride's personal property allegedly wrongfully converted by plaintiffs after her death.

The trial court found and adjudged that plaintiff Molly Faye Richardson (at the time of judgment, Faye Cloyd Miller) and the three individual defendants were tenants in common; that Faye Cloyd Miller was the owner of an undivided one-half interest and that each of the three individual defendants was the owner of an undivided one-sixth interest; that plaintiff William A. Richardson, as the named beneficiary, was entitled to the proceeds of the insurance policy and that defendants had no claim to or interest therein; that William A. Richardson had paid $742.23 on the first deed of turst and $1,245.46 for improvements; that Mrs. Miller, after Mrs. McBride's death, had expended $242.54 for taxes and upon the first deed of trust; that plaintiffs were entitled to credit for $1,115.11, one-half the total of these items; that Mrs. McBride's personal property was worth $500; that plaintiffs had sold some of this property without the knowledge or consent of the administrator or of any rightful owner; that plaintiffs should be charged with $500, the full value of the personal property; that the reasonable rental value of the house was $35 per month and that plaintiffs should be charged with $280, one half the rental value since Mrs. McBride's death; that the total credit to which plaintiffs were entitled was $1,115.11 and the total credit to which defendants were entitled was $780, leaving a $335.11 balance due plaintiffs; that Mrs. Miller, by reason of the conveyance from William A. Richardson, was entitled to receive any credits due William A. Richardson; and that the property was not susceptible of division in kind and should be sold. The court appointed a special commissioner and ordered a sale, awarded Mrs. Miller a $335.11 lien on the net proceeds, and ordered the balance divided on the basis heretofore indicated.

Defendants contend that neither of the plaintiffs has any title to or interest in the property. Defendants urge these propositions: that plaintiff Richardson and Mrs. McBride purchased the real estate at a time when they contemplated marriage; that they intended to and did create a joint tenancy; that there was a presumption that they were married; that the deed to them was not effective because Richardson failed to perform his contract to marry Mrs. McBride. Defendants apparently proceed upon the theory that the property was in fact bought or purchased with Mrs. McBride's separate funds; that the deed to her and Richardson as husband and wife was to be effective only upon their marriage; that Richardson wrongfully failed to perform an agreement to marry; and that therefore Richardson cannot now equitably claim any interest in the property. If this is defendants' theory, and it is as best we may understand, then suffice to say, without reference to what the legal effect would be had these facts been established, that there was no evidence to support such contentions. There was no evidence that the property was purchased with Mrs. McBride's money. There was no evidence that the property was a conditional gift to Richardson. There was no evidence of any contract to marry other than the stipulated fact that the parties intended to marry. There was no evidence of any failure on Richardson's part to perform any sort of an agreement or contract. And certainly it is to the advantage of these defendants to accept plaintiffs' assertion that the deed to Richardson and Mrs. McBride created a contenancy rather than a joint tenancy. We rule this contention against defendants-appellants.

Defendants further contend that the court erred in permitting plaintiff William A. Richardson to testify that he made a down payment on the...