Schulz v. Bowers

• Decision Date: 16 July 1920
• Docket Number: No. 20931.,20931.
• Parties: SCHULZ v. BOWERS et al.
• Court: Missouri Supreme Court

223 S.W. 725

SCHULZ v. BOWERS et al.

No. 20931.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by August B. Schulz against J. H. Sowers and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Action in equity, under section 2535, R. S. 1909, to quiet title in plaintiff to a three-fifths undivided one-half of certain described real estate set out in the petition, to which he claims the equitable title, in section 36, township 24 north, range ____ east, in Butler county, Mo.

The petition further sets forth that defendant John H. Bowers is the common source of title, and that while he had the title to said land, one J. S. Dodson performed professional services as an attorney at law for said Bowers in certain suits against William Hacke et al., affecting the title to the above-described land in the circuit court of Butler county, Mo., and for which services, which have already been performed, the said Bowers agreed to convey to said Dodson (and signed a declaration of trust to that effect) three-fifths of an undivided one-half of said real estate, and that afterward he, for a consideration of $800, conveyed his equitable interest to August Schulz, plaintiff, and that Bowers' codefendants, Frank Ball and E. T. Barnett, by quitclaim deed, with notice of plaintiff's equitable title, attempted to purchase said land from said Bowers. The petition concludes as an ordinary action to quiet title under said statute.

Defendant Bowers filed a separate answer which consisted of a general denial. Ball and Barnett answered for themselves alone, and denied that plaintiff has any title to three-fifths of an undivided one-half interest, or that he has any title to any other portion of said land.

The case was tried to the court, which, on the 15th day of February, 1918, rendered a judgment and decree against plaintiff, and in favor of defendants Ball and Barnett, and adjudged and decreed said defendants to be the owners in fee simple of said land, and further barred the plaintiff from hereafter setting up or claiming any right, title, or interest, either legal or equitable, to said land.

On the same day plaintiff's motion for new trial was filed, overruled by the court, and exceptions duly saved, an affidavit for appeal to this court was sustained, and on the 20th day of December, 1918, within the time allowed for that purpose, the bill of exceptions was duly filed.

The motion for new trial assigns several reasons why the judgment ought not to stand, but we think the whole matter is included in the second and third assignments as follows:

"(2) Because the decision was for the wrong party.

"(3) Because the court erred in its finding of facts and in its conclusions of law."

S. J. Dodson, of El Paso, Tex., and David W. Hill, of Poplar Bluff, for appellant.

John A. Gloriod, Arnot L. Sheppard, and J. C. Sheppard, all of Poplar Bluff, for respondents.

MOZLEY, C. (after stating the facts as above).

It is contended by appellant that Dodson was to have 60 per cent. of the land in suit if he recovered it, and that Bowers wrote the plaintiff, Schulz, on July 22, 1916, that

"If Mr. Dodson transfers you his interest in said land or any part thereof I will recognize you as the owner thereof, as shown by such transfer, and will protect your interest therein to the extent of such transfer to you."

On the other hand, it is contended by respondents that Dodson was not to have land for his professional services in the suit of J. H. Bowers, Plaintiff, v. George Begley, Jr., William J. Hacke, John A. Hacke, James E. Adams, and United Realty & Loan Co., a corporation, Defendants (the same suit referred to in the petition), involving the title to the land in question, but was to be paid for his services in money; that is to say, 60 per cent. of the amount said land brought when recovered and sold.

2. We agree with appellant that an equity suit appealed to this court is in effect a trial de novo, as held in the case of Gibson v. Shull, 251 Mo. loc. cit 485, and on the same page (158 S. W. 324) the learned judge adds:

"In other words, whilst we look upon the finding in the lower court as persuasive, we do not allow it to be binding, unless our minds run with the chancellor below on the facts, or unless the facts are conflicting and close, and we yield to his judgment because of his better position to judge of the credibility of the respective witnesses." (Italics ours.)

This case, and many others unnecessary to cite, announce the correct rule.

3. We must therefore resort to the facts to ascertain if they are "conflicting and close" on the question of whether Dodson was to receive land for his professional services, or whether he was to receive money.

Referring a little further to the facts, Dodson had employed, with the consent of Bowers, Mr. John A. Gloriod, an attorney of Poplar Bluff, Butler county, Mo., where the case was tried, to assist him in said litigation, and Gloriod was to share the fee equally with Dodson for his services. Gloriod testified:

"That they were to receive money for their services in said litigation when the land was sold; they were to divide the fee fifty-fifty."

Bowers, who made the contract with Dodson for his services, testified as follows:

"Q. Did you ever agree with him at any time to give him an interest in the land, or any title to any part of the land? A. No, sir; it was just part of what we recovered; I knew that we couldn't hold the land, so I just told him he could have half of what we got out of it."

Testifying further, the witness...