Ridenour v. Duncan

• Citation: 246 S.W.2d 765
• Decision Date: 11 February 1952
• Docket Number: No. 42193,No. 2,42193,2
• Parties: RIDENOUR et al. v. DUNCAN et al
• Court: Missouri Supreme Court

Page 765

246 S.W.2d 765

RIDENOUR et al. v. DUNCAN et al.

No. 42193.

Supreme Court of Missouri, Division No. 2.

Feb. 11, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 10, 1952.

Clarence C. Chilcott, Earl Dietz, Kansas City, for appellants.

Myer M. Rich, Isadore Rich and Rich & Rich, all of Kansas City, for respondents.

BOHLING, Commissioner.

Hazle Duncan Ridenour, Joyce Snyder and Raymond Duncan instituted this suit against Robert Earl Duncan (plaintiffs' uncle) and Florence Duncan, his wife, and Eliza W. Herod and Elmer J. Fults, to cancel certain deeds, conveying the property commonly known as 907 Prospect Avenue, Kansas City, Missouri, and the furniture and furnishings therein, and a deed of trust thereon, and to decree the title to the property in the Estate of Minnie Duncan Goodwin, Deceased, (plaintiffs' paternal grandmother) and for general equitable relief.

The several answers of defendants Duncan and Fults denied the material allegations of plaintiffs' petition. The answer of Eliza W. Herod denied the allegations of plaintiffs' petition, and set up a cross-claim wherein, alleging she was an innocent purchaser for value of said property, she prayed the court to quiet the title to said real estate and decree and adjudge her to be the owner thereof and for general equitable relief. Eliza W. Herod purchased the property from Robert Earl and Florence Duncan after Mrs. Goodwin's death and gave a deed of trust back on the property to secure the unpaid balance of the purchase price.

The court found the issues in favor of the defendants; that the plaintiffs were not entitled to the relief prayed, and, by its judgment, dismissed plaintiffs' petition and awarded defendants their costs, but entered no decree or judgment quieting the title under Eliza W. Herod's cross-claim.

Plaintiffs filed a motion for new trial and the court sustained said motion. Defendants appeal from said order, R.S.1949, Sec. 512.020, V.A.M.S., and contend that the court exceeded its jurisdiction in entering the order awarding a new trial; that plaintiffs failed in their proof; that plaintiffs are not entitled to equitable relief, not coming into court with clean hands; and that there existed a valid express trust, fully executed, in the property in favor of defendants Robert Earl and Florence Duncan which was not subject to attack by plaintiffs.

The judgment was entered April 13, 1950. Plaintiffs' motion for new trial was filed April 21, 1950. The order granting a new trial was entered July 13, 1950, and recited that plaintiffs' motion for new trial 'is by the court taken up, fully heard and considered, and by the court sustained for the reason that the judgment as entered does not adjudge the rights or interests of the parties to the unpaid portion of the note given by Eliza W. Herod.'

R.S.1949, Section 510.370, V.A.M.S., provides: 'Not later than thirty days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party * * *.' See Sup.Ct. Rule 3.25, 2 R.S.1949, p. 4112. Orders granting a new trial are to specify the grounds on which the new trial is granted, Secs. 510.330 and 510.370, Id., and motions for new trial not passed on within ninety days after filing are deemed denied for all purposes. (Sec. 510.360, Id.) Defendants contended the court exceeded its jurisdiction because the new trial was granted on the court's own initiative more than thirty days after the entry of judgment for a specified ground not set out in plaintiffs' motion for new trial. Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539; Birmingham v. Kansas City Pub. Serv. Co., 361 Mo. 458, 235 S.W.2d 322, 324; Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1, 5; Rozell v. Rozell, Mo.App., 229 S.W.2d 700, 702[2, 3]; 2 Carr. Mo. Civil Procedure 37, Sec. 857. Consult, among others, under the prior code, Warden v. Southards, 238 Mo.App. 692, 187 S.W.2d 510, 512, and cases cited.

Plaintiffs' motion for new trial did not assign as a reason therefor that the judgment failed to adjudicate the interests of the parties in the purchase price paid by Eliza W. Herod for the property or to any unpaid portion thereof evidenced by her note given in connection with such purchase. Plaintiffs in their pleadings proceeded upon the theory that the property was part of the estate of Minnie Duncan Goodwin, deceased, and this position was maintained in their motion for new trial except insofar as it was affected by evidence adduced to the effect S. E. Duncan, their father, paid $450 on the cash payment when David J. Stephenson conveyed title to him on October 26, 1946.

We conclude that the order granting plaintiffs a new trial was on the court's own initiative and, not having been made within thirty days after entry of the judgment, the court exceeded the authority conferred upon it by Sec. 510.370, supra. Plaintiffs do not cite authority to sustain their contention that the ground specified by the court for granting the new trial was within the assignments in their motion for new trial to the effect that the judgment was 'against the evidence and the greater weight of the evidence' and was 'in favor of the wrong parties.'

Plaintiffs stress other grounds assigned in their motion as reasons for sustaining the order granting a new trial. This they are privileged to do. Cole v. St. Louis-S. F. R. Co., 332 Mo. 999, 61 S.W.2d 344, 347; Craton v. Huntzinger, Mo.Sup., 187 S.W. 48, 53[9, 10]; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678, 683; Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548, 554[15, 17].

Mrs. Minnie Duncan Goodwin, formerly Mrs. Minnie Duncan, was the mother of Sidney Earnest Duncan and Robert Earl Duncan, who are referred to in the record as 'S. E.' or 'Earnest' and 'Earl,' respectively. Sidney predeceased the mother. He was the elder of the two sons and plaintiffs are his children. Under a will dated August 28, 1940, of Mrs. Goodwin offered in evidence, 'Earl Duncan' and 'Earnest Duncan' were named residuary beneficiaries to whom the property here involved would pass in equal shares. Consult R.S. 1949, Secs. 468.310, 468.010, V.A.M.S.

Plaintiffs' theory is that Mrs. Goodwin died seized and possessed of the property and that they have an undivided one-half interest therein. Defendants claim the title to the property stood in the names of Robert Earl Duncan and Florence Duncan, plaintiffs' uncle and his wife, at the time of Mrs. Goodwin's death.

On October 26, 1946, Mrs. Goodwin and S. E. Duncan came to the office of Era Bond (a real estate agent, in his seventies) where Sidney, as purchaser, and David J. Stephenson, as seller, contracted for the purchase and sale of the property for $5,750. On the same day Stephenson deeded the property to 'S. E. Duncan.' This deed was recorded October 28, 1946. Bond, defendants' witness, testified Sidney paid $450 and Mrs. Goodwin paid the balance of the down payment (we understand a total of $3,000), and Sidney gave back a deed of trust on the property to Stephenson for the unpaid purchase price.

It is not disputed that title was taken in the name of S. E. Duncan to deprive Mrs. Goodwin's husband, Henry W. Goodwin, of any marital rights in her property should she predecease him.

On said October 26, 1946, 'S. E. Duncan' executed and acknowledged a warranty deed conveying the property, with the grantee's name in blank, which deed was left with Bond. Bond testified that Mrs. Goodwin thereafter came to his office and told him that Sidney was ill and could not live 'and I don't want any difficulty about that title. I don't want my husband to have anything to do with it;' that thereupon Elmer J. Fults' name was inserted as grantee in S. E. Duncan's blank deed and the deed recorded. This deed was recorded June 6, 1947. At the same time Fults executed his warranty deed conveying the property with grantee's name in blank. Fults was a 'straw party' and Bond paid him $5.00. Fults' deed was given to Bond and put in his safe. Bond testified that Fults was holding title for 'S. E. Duncan and Mrs. Goodwin.'

S. E. Duncan died July 3, 1947.

A five-apartment building was on the real estate and Mrs. Goodwin, with her husband, for some time prior to and at the time of her death lived there. She collected the rents and managed the building. She paid on the debt secured by the deed of trust to Stephenson each month and there was evidence that these payments, as well as taxes and repairs on the property, were made from rental collections.

In a letter addressed to Mr. and Mrs. Earl Duncan, postmarked January 9, 1948, Mrs. Goodwin, so far as material here, stated: '* * * dear children for my sake don't ever speak of this for it would make trouble for me with my grand children as well as my husband I am leaving every thing to you son if I have any thing at my death and truly hope I have * * *.'

Earl Duncan testified he never talked to his mother about this property. Minnie Duncan Goodwin died March 18, 1949, and Earl was notified of her death at 8 o'clock that morning. He could not locate Mr. Goodwin at 907 Prospect, and went to the undertaking parlor where Mrs. Goodwin's body had been taken. He then went to Era Bond's office. Bond and he were not acquainted. Earl Duncan testified that Bond got Fults' deed out of the safe; that his and his wife's names were on the deed and this was the first he knew of the deed being in his name; that he had no conversation with Bond at that time in regard to disposing of the property; that he took the deed to his attorney's office; that he did not have 'any use' for Mr. Goodwin and wanted to sell the property; that he went back to Bond's office that afternoon and told him to sell the property, authorizing him to sell for $3,800 net, Bond to receive all above that amount; and that he signed a deed in blank to the property.

The deed from Fults to Earl Duncan and...