Stephenson v. Stephenson

• Citation: 171 S.W.2d 565,351 Mo. 8
• Decision Date: 04 May 1943
• Docket Number: 38258
• Parties: Mabel K. Stephenson, v. David I. Stephenson, Ella A. Stephenson and Citizens National Bank, a Corporation, Appellants, William Keith Stephenson, Bret Harte Stephenson, Marjorie Stephenson Bond and Susanna Lee Stephenson, Defendants
• Court: United States State Supreme Court of Missouri

171 S.W.2d 565

351 Mo. 8

Mabel K. Stephenson, v. David I. Stephenson, Ella A. Stephenson and Citizens National Bank, a Corporation, Appellants, William Keith Stephenson, Bret Harte Stephenson, Marjorie Stephenson Bond and Susanna Lee Stephenson, Defendants

No. 38258

Supreme Court of Missouri

May 4, 1943

Rehearing Denied June 1, 1943.

Appeal from Adair Circuit Court; Hon. Noah W. Simpson Judge.

Affirmed.

M D. Campbell, A. D. Campbell and George J. England for appellants.

(1) The petition charges plaintiff was the owner of the land described in the petition; that she executed a quitclaim deed on October 10, 1928, which purported to convey said land to Anna L. Stephenson, "but this plaintiff (2) says that said land was by said deed only conveyed to Anna L. Stephenson to hold title thereto as trustee for the use and benefit of this plaintiff." The allegation just quoted and the allegations that the deed "only conveyed" to Anna L. Stephenson "title thereto as trustee for the use and benefit of this plaintiff" are statements of legal conclusions, not the statements of issuable facts, and amount to nothing in pleading. State ex rel. v. Sevier, 92 S.W.2d 102; Ruggles v. International, 52 S.W.2d 860; Tucker v. Diociose, 264 S.W. 892, 902. (2) The trust upon which the petition evidently proceeds is an express trust, a trust which can be created only by written contract. Woodard v. Cohron, 137 S.W.2d 497, 498. There is not a word in the petition concerning a contract, either oral or written, between the parties to the quitclaim deed absent which there was no express trust. The petition was therefore insufficient to support the decree. (3) The court erred in overruling appellant's objection to the competency of plaintiff as a witness to testify that her Exhibit 1 was written by Anna L. Stephenson, and that her Exhibit 1-A was written and signed by Anna L. Stephenson, for the reason Anna L. Stephenson was dead and this witness, the other party to the transaction, was therefore incompetent. Anna L. Stephenson, if living, could have testified she did not write either of said exhibits, and Mabel K. Stephenson was therefore incompetent. Fullerton v. Fullerton et al., 132 S.W.2d 966, 969, and cases cited therein. (4) The court erred in receiving said Exhibits 1 and 1-A in evidence for the reason there was no competent evidence that Anna L. Stephenson wrote either of them. Exhibit 1 was an envelope in which plaintiff was over defendant's objection allowed to say Exhibit 1-A was enclosed. The latter exhibit was one of two writings upon which plaintiff relied to prove the existence of the trust. Mabel I. Stephenson was the other party to the transaction and incompetent to testify that Anna L. Stephenson wrote and signed them. Authorities under Point (3). (5) Plaintiff cannot have the aid of equity for the reason that her hands are not clean, she has not offered to do equity. Ogden v. Auer, 184 S.W. 72; Jones v. Jefferson, 66 S.W.2d 555; Smith v. Holdoway Construction Company, 129 S.W.2d 894. (6) Equity will not aid the plaintiff for the reason that she had been guilty of inequitable conduct, both in the institution and prosecution of this action. The record will show that throughout the trial the attorney representing plaintiff, and the attorney representing the cross petitioners, aided each other; that the attorney for the cross petitioner claimed the right to cross examine the witnesses called by the plaintiff and frequently made suggestions in aid of plaintiff. Such conduct was not only inequitable -- it was against public policy, and even though no objection had been made to it, this court of its own motion would raise the question of public policy. Creamer v. Bivert, 113 S.W. 1118. (7) The court erred in permitting plaintiff to testify she wrote a letter to Anna L. Stephenson of which her Exhibit 3 was a copy. The letter said in effect she accepted the proposition made in her Exhibits 1-A and 2-A, and enclosed the executed deed. Said Exhibit 3 was a part of the transaction between plaintiff and Anna L. Stephenson, and plaintiff was therefore incompetent to testify to such act. Authorities under Point (3). Moreover there was no evidence the original was lost. Authorities, Point (3). (8) Plaintiff and Anna L. Stephenson knew the truth of the matter. The former remained silent until long after death had stilled the voice of the latter. While mere delay short of the period of limitation does not in and of itself defeat an action, the rule is well established that when the delay renders it difficult or impossible to ascertain the truth, equity will not grant relief. Snow v. Finch, 41 S.W.2d 2; Price v. Boyle, 287 S.W. 257; Davis v. Keiser, 246 S.W. 897. (9) Equity views with disfavor an action brought against the representatives of a deceased person, Lenox v. Harrison, 80 Mo. 491. (10) The failure of plaintiff to exercise any diligence in asserting her alleged right is sufficient to deprive her of aid in equity. Bennett v. Terry, 299 S.W. 147, 149, and cases there cited. (11) No lawful trust agreement was shown. Plaintiff's Exhibit 3 accepted the proposition for the purpose of "protecting" as outlined in the letters Exhibits 1-A and 2-A. These letters undoubtedly show the deed was made for the purpose of withdrawing the property of plaintiff from the reach of her creditors -- so "that bunch" could not do anything about it. In such circumstances equity will leave the parties to the transaction where they placed themselves. McGehee v. Garringer, 224 S.W. 828; Keener v. Williams, 271 S.W. 489; Kimbridge v. Farrell, 136 S.W.2d 335; Friedel v. Briley, 44 S.W.2d 9; Rock Island Natl. Bank v. Lumber Co., 134 Mo. 432; State Bank v. Lillibridge, 293 S.W. 116; First Natl. Bank v. Wally, 193 S.W. 614; Creamer v. Bivert, 113 S.W. 1118; Ogden v. Auer, 184 S.W. 72. (12) The claim of plaintiff is stale -- is barred by laches. Snow v. Finch, 41 S.W.2d 2; Price v. Boyle, 287 Mo. 257.

Russell D. Roberts and E. M. Jayne for respondent.

(1) Appellant, Citizens National Bank, has no standing whatever in this action as an appellant. By its answer it disclaimed any lien or any interest in the land in controversy. The respondent was entitled to judgment in so far as Citizens National Bank was concerned upon the pleadings. McDaniel v. Leuer, 230 S.W. 633. The Citizens National Bank could not in any way be injured by the judgment since all the judgment determined in so far as it is concerned, is what it by its answer claimed that it does not own or claim to own the notes secured by the deed of trust on the property or any other lien. Its appeal is wholly without merit. Gilchrist v. Bryant, 213 Mo. 442; State ex rel. v Vories, 62 S.W.2d 457; Secs. 1184, 1684, R. S. 1939. (2) The appeal of David I. Stephenson is without merit and he has no standing as an appellant from the decree of the court. It is true that by his answer he claimed title and some of his testimony intimated that he claimed title, but it was directly shown by him that he had conveyed such title as he had to his wife. In addition to that he gave oral testimony to support the contention that the deed of trust given by his wife constituted a valid and subsisting lien. This could only be true if his wife owned the land when she executed the same. His appeal is entirely without merit. Authorities, supra. (3) Appellant, Ella A. Stephenson, cannot, with good grace, complain about the decree against her. She did not see fit to take the stand to testify, and when this is considered with absence of other vital evidence which she should have made available, for instance the very deed by which Anna L. Stephenson conveyed the property, it is significant. She most certainly knew whether she had knowledge of the trust relationship under which Anna L. Stephenson had acquired the property. These facts, coupled with the fact that the conveyance to her was a voluntary one and was one in the family made it encumbant on her to affirmatively show that the transaction was a bona fide purchase and, on her failure to so show, the chancellor was justified in indulging every reasonable inference against her. Reynolds v. Faust, 179 Mo. l. c. 27. (4) This court will defer to the finding of the chancellor, since he had the witnesses before him. Woodruff v. Cole, 269 S.W. 599. This is especially true where the chancellor had evidence before him in the form of exhibits which are not brought to this court and which by their very nature could have given support to respondent's case. Fears v. Newman Merc. Co., 156 S.W.2d 909. (5) Appellants' belated challenge of plaintiff's petition is without merit for the following reasons: (a) This being a suit to ascertain and determine title under the statute (Sec. 1684, R. S. 1939), the petition is sufficient as it complies with that statute. Huff v. Land & Improvement Co., 157 Mo. 65. (b) Appellants and the other defendants answered the petition without challenge, and claimed title in themselves, thus raising an issue on which the court was required to render a decree regardless of the technical sufficiency of the petition. (c) The statute contemplates that where a petition is filed by one claiming an interest, that the court "ascertain and determine" the estate title and interest of said parties. Sec. 1684, R. S. 1939. (6) The court did not err in permitting respondent to identify exhibits and the handwriting on the same. Sec. 1887, R. S. 1939. Even if respondent was incompetent to testify on this point, the error was not fatal since it was only cumulative. Singer Mfg. Co. v. Givens, 35 Mo.App. 602; Ice and Cold Storage Co. v. Kuhlmann, 238 Mo. 685; Burger v. Boardman, 254 Mo. 237; Cases cited West Mo. Digest, Vol. 3 -- Appeal and Error, Key 1051 (1). (7) If the action had been against Anna L....