Sturdy v. Smith

• Decision Date: 07 November 1939
• Docket Number: No. 25013.,25013.
• Citation: 132 S.W.2d 1033
• Parties: STURDY v. SMITH et al.
• Court: Missouri Court of Appeals

132 S.W.2d 1033

STURDY v. SMITH et al.

No. 25013.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Suit by Thomas R. Sturdy against Harold S. Smith and another to establish an equitable vendor's lien on described realty. From a judgment for plaintiff establishing a lien on the property in the sum of $2,500 with interest, the defendants appeal.

Affirmed.

M. F. O'Brien and Wm. E. Condray, both of Maplewood, for appellants.

A. H. Kerth and Dalton W. Schreiber, both of Clayton, for respondent.

McCULLEN, Judge.

This suit was begun by respondent, as plaintiff, against appellants, as defendants, to establish an equitable vendor's lien on certain real estate located in St. Louis County, Missouri, which is fully described in plaintiff's petition. A trial before the court resulted in a finding and judgment in favor of plaintiff establishing a lien on the property in the sum of $2,500, with interest thereon at the rate of six per cent. per annum from November 27, 1937. Defendants have duly appealed to this court from that judgment.

It appears from the record that Thomas D. Sturdy died on November 27, 1931, leaving as his sole heirs a son, Thomas R. Sturdy, plaintiff in this cause, and a daughter Louise Smith, who died on January 19, 1935. On and before July 17, 1930, Thomas D. Sturdy, the father, was the owner of the property involved. On July 17, 1930, Thomas D. Sturdy, the father, conveyed the property to his daughter, Louise Smith, who was then a widow. The conveyance was by a quitclaim deed, which was duly executed and acknowledged by the father, Thomas D. Sturdy, and was recorded in the office of the Recorder of Deeds of St. Louis County, Missouri.

Plaintiff alleges in his petition that, at the time the conveyance by said quitclaim deed was made from his father to his sister, Louise Smith, she, the said Louise Smith, agreed with Thomas D. Sturdy, her father, that, as a part consideration for said sale and conveyance, she would pay to plaintiff the sum of $3,000, said sum to be paid by said Louise Smith to plaintiff in from one to six years after the death of said Thomas D. Sturdy. Plaintiff's petition further alleges that, in pursuance of said agreement, said Louise Smith paid to plaintiff the sum of $500, and that there remains a balance of the purchase money due plaintiff in the sum of $2,500; that defendants are the record owners of said real estate as successors in title and heirs of said Louise Smith, deceased; that whatever title defendants have in and to said real estate is subject to all existing equities in favor of plaintiff; that defendants are not innocent purchasers for value; that, unless a lien against said real estate for said unpaid balance is decreed by the court, plaintiff is without remedy to realize his share of the purchase price for which said property was sold and conveyed. The petition prays for a lien for the unpaid purchase price in the sum of $2,500 against said property.

Defendants, by their answer, admit that Louise Smith died on January 19, 1935, leaving as her sole heirs defendants herein; admit that said Louise Smith acquired title to the property described in plaintiff's petition by deed dated on or about July 17, 1930; and admit that defendants are the owners of the said real estate, and that they acquired title thereto as heirs of said Louise Smith, deceased. Following the above admissions, defendants deny each and every other allegation in plaintiff's petition.

Defendants' answer further alleges that letters of administration in the estate of Louise Smith, deceased, were granted by the Probate Court of St. Louis County on February 6, 1935, and that said estate has been fully administered and all claims against it were fully paid and the administrator discharged long prior to the filing of plaintiff's petition herein; that plaintiff's cause of action, if any he ever had, is not against defendants but against the estate of Louise Smith, deceased; that, by reason of his failure to file and present his claim in the Probate Court of St. Louis County within one year from the date of the granting of letters of administration, or within one year from the date of the first insertion of the publication of the notice of granting of letters in said estate, and failure to have the same allowed against said estate, his cause of action, if any he has, is barred by Section 183, Laws of Mo.1933, p. 163, Mo.St.Ann. § 183, p. 111, and Section 187, R.S.Mo.1929, Mo.St.Ann. § 187, p. 117.

Plaintiff introduced in evidence the files of the Probate Court of St. Louis County, Missouri, in the estate of Thomas D. Sturdy, deceased, showing that Louise Smith was appointed administratrix on December 14, 1931. Said files contain the affidavit of administration of Louise Smith taken before M. F. O'Brien as a notary public. The files also show that, on December 8, 1932, M. F. O'Brien, attorney, was the attorney for Louise Smith in administering the estate of her father. A letter by O'Brien to plaintiff, dated December 8, 1932, will be referred to later herein. It appears from the record herein that the same M. F. O'Brien is one of the attorneys of record for defendants in this case. Said Probate Court files further show that Louise Smith, residing on Route No. 6, Box No. 626, Webster Groves, Missouri, and plaintiff, residing in the State of California, are the sole heirs, being a daughter and son, respectively, of Thomas D. Sturdy, deceased. It was admitted at the trial herein that the signature of Louise Smith upon said affidavit was her genuine signature.

Plaintiff testified that he was a resident of the State of California; that his father was Thomas D. Sturdy; that he and Louise Smith were the only children of Thomas D. Sturdy; that the father died in 1931; that his father owned the Sturdy homestead on Watson Road in St. Louis County, consisting of about twenty-eight acres with improvements thereon; that he received, through the United States mail, a number of envelopes and the letters contained therein, which were marked plaintiff's Exhibits A, B, C, D, E, F, J and K. Plaintiff's Exhibit A is an envelope post-marked November 8, 1930, Carondelet Post Office, St. Louis, Missouri, in which was contained plaintiff's Exhibit B. Plaintiff's Exhibit B is a letter dated Webster Groves, November 7, 1930, with the salutation "Dear Brother". Webster Groves, Missouri, was the place of Louise Smith's home. In that letter reference is made to a letter which plaintiff had sent to his father, and states that plaintiff's letter had "kind of upset Dad." The letter, plaintiff's Exhibit B, then relates that the father had been ill and had been under heavy expense, and that the father had told the writer to tell plaintiff that the father could not afford to send plaintiff the $150 plaintiff had asked for. Referring to the father, the letter then goes on:

"He sold the farm to me last summer and I have made an agreement to pay you $3,000.00 (Three Thousand) for your share to be paid in from one to six years after his death. Well papa asked me to send you the $150.00 and take it off of the note I have for you. Papa thought that was the only way you could get any good out of what was coming to you as John Shulz and the other men you owe out here are just waiting for Papa to close his eyes and they are ready to lay claim on your part so the lawyer said this was the safest way to handle is. So I am sending you the $150.00 you asked for and will put the canceled check with the note that is held in trust for you."

After further references to matters not material to this case, the letter closes with "Love and best wishes, Your Sister Lou."

The other exhibits referred to are envelopes addressed to plaintiff, who was then in California. Plaintiff testified that he received them in California through the United States mail. The envelopes contained letters referring to many intimate family affairs, such as a sister would write to a brother. They also are addressed to "Dear Brother" or "Dear Brother and Niece." Some are signed, "Your sister Lou", and others merely "Lou."

C. A. Oliver, cashier of the St. Louis County Bank, testified that he had been employed for thirty-one years in that bank, and had been employed three years with the Valley Park Trust Company; that, during eighteen years of that time, he compared signatures in writing with original or admitted signatures kept on file in the bank. He testified that the signatures and the handwriting on plaintiff's Exhibits A, B, C, D, E, F, J and K were the same as the admitted signatures of Louise Smith on the affidavit of administration in the files of the Probate Court of St. Louis County in the estate of Thomas D. Sturdy, deceased.

Defendants introduced no evidence whatsoever.

At the request of defendants, the trial judge made a finding of facts in which he found that Thomas D. Sturdy had only two children, a son, Thomas R. Sturdy, plaintiff in this case, and a daughter, Louise Smith; that Thomas D. Sturdy, prior to July 17, 1930, owned the real estate described in plaintiff's petition, and on or about that date sold and conveyed it to his daughter, Louise Smith; that, as a part consideration for said sale and conveyance, Louise Smith agreed with said Thomas D. Sturdy to pay to plaintiff the sum of $3,000, to be paid in from one to six years after the death of Thomas D. Sturdy; that Thomas D. Sturdy died on November 27, 1931; that Louise Smith paid to plaintiff, on or about November 7, 1930, the sum of $150, and on or about December 8, 1932, paid to plaintiff the sum of $350 in pursuance of said agreement; that Louise Smith died on January 19, 1935; that letters of administration were granted upon her estate, and that the time for filing claims against her estate had expired before the filing of the petition in this case; that Louise Smith left...