Thieman v. Thieman
| Decision Date | 14 March 1949 |
| Docket Number | 41109 |
| Parties | Nellie Thieman, Respondent, v. Irvin Thieman, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of Jackson County, Civil Appeal, Judge James W. Broaddus
Affirmed
Nellie E. Thieman, plaintiff-respondent, brought this action against her husband, Irvin Thieman, defendant-appellant, to determine title and to cancel defendant's alleged pretended claim or interest in and to certain real estate in Kansas City. The trial court found for plaintiff and against defendant, and found defendant had no title or interest in the property and decreed plaintiff to be the owner in fee simple free of any lien of defendant, vesting plaintiff with full title. Upon defendant's counter claim the court gave defendant a personal judgment against plaintiff for $118.18, but not as a lien on the property. Defendant appealed.
The theory of plaintiff's petition is that the parties were married in October, 1944; that plaintiff then owned an equity in her home on East 67th Street Terrace and defendant owned an equity in 98 acres in Platte County; that after their marriage defendant proposed to plaintiff that if she would sell her equity in her city property he would sell his equity in his farm and with the joint proceeds they would purchase other city property for their joint home and take title in their joint names; that relying on defendant's good faith and believing him, plaintiff sold the equity in her home for $1900; that said sum was deposited in the bank in their joint names; that defendant then prevailed on plaintiff to purchase a home at 5644 Swope Parkway, to make the down payment thereon of $1250.00 out of her said $1900 and to accept a deed thereto conveying title to them as tenants by the entirety; that plaintiff and defendant thereupon executed a purchase money note, secured by deed of trust on the Swope Parkway house, in the sum of $4,000, payable monthly; that plaintiff and defendant in March, 1945, moved into said Swope Parkway home; that defendant refused to sell the equity in his farm or contribute anything to the purchase of the Swope Parkway home, but lived in it until the parties separated in July, 1945; and that defendant now claims a tenancy by entirety in the Swope Parkway property. The petition prays determination of title and cancellation of defendant's pretended interest.
Defendant's answer admitted the marriage to plaintiff, that she had owned the equity in the 67th Street Terrace home and denied all other matters. He filed a counter claim alleging he expended monies in saving plaintiff's equity in her 67th Street Terrace property, that he spent certain monies improving that property and in closing the deal on the Swope Parkway property. He further alleged that they own the Swope Parkway property as tenants by the entirety but plaintiff refuses to recognize his interest therein, or share the income therefrom. He prayed the court to declare him a tenant therein by the entirety.
At the time of the trial a divorce action was pending between the parties. It does not appear that a decree has been entered in the divorce action. From and after their marriage in October 1944, plaintiff and defendant lived in plaintiff's house on 67th Street Terrace. They secured possession of the Swope Parkway property in March, 1945. Defendant lived there until July, 1945, when the parties separated and defendant moved away. Plaintiff is 52 years of age and defendant is 55.
We find from the record before us that the evidence amply supported the above stated allegations of plaintiff's petition. The Chancellor was justified in so finding. The proof further established that after plaintiff's money was in their joint names in the bank defendant "threatened to slap me (plaintiff) all over the house". After they were living in the Swope Parkway property defendant told plaintiff "he wasn't going to sell the (Platte County) farm", saying that he merely wanted to get his (defendant's) name on the deed to plaintiff's house.
Plaintiff's money paid the down payment on the new home and made all the installment payments. Plaintiff signed up for and made all deposits required for utility services. Defendant would not himself contract and would not allow plaintiff to contract for utility services in his name. Defendant did advance to plaintiff for payments on her home on 67th Street Terrace the sum of $118.18, for which sum the trial court properly gave defendant a personal judgment against plaintiff. Defendant persuaded plaintiff to agree to the purchase of the Swope Parkway house with her own money. He drew her $1250.00 out of their joint account upon his check to make the down payment. Bajohr v. Bajohr, (Mo.Sup.) 184 S.W. 76. It was defendant's suggestion that the deed to the new house on Swope Parkway transfer title to them as an estate by the entirety. Before his suggestion to that effect such a thing had never occurred to her. Defendant put no money of his into the new place on Swope Parkway but by his own check transferred some money out of their joint bank account into his own personal account in another bank. Since their separation plaintiff has continued to pay all the installment payments on the Swope Parkway property and defendant has never used his own money to make any payment of any kind on the Swope Parkway property.
In his brief defendant-appellant approaches the case, and argues it, as though the action were one to set aside a deed for fraudulent representations. Such is not the nature of the action. The action is in equity to determine title and for judicial declaration that defendant has no interest in the property. It is plaintiff's contention that the deed to her and her husband, conveying title to them as estate by entirety, resulted from an abuse of the confidential relationship, that any paper title in her then husband is void for failure of consideration, and that any paper title in her then husband is in fact, upon trust principles, her title. Plaintiff further urges that in view of the confidential relationship and the fact that her money paid for the Swope Parkway property a "trust results when a conveyance is procured upon a condition not performed or where an unfair advantage is taken of the relationship to the unjust enrichment of one of the parties". Plaintiff cites Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557, and Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331.
Defendant-appellant contends (1) that plaintiff's cause of action is based on alleged fraudulent misrepresentations of defendant and the only claim of fraud was failure to do an act in the future, and (2) there can be no trust in the wife's favor where she voluntarily created an estate by the entirety. Of these in order.
Is there any presumption of a gift by plaintiff to defendant? Is there a constructive trust in her favor as to the whole of the title where her money alone (and none of his) has been used to make the down payment and to pay all installments as due?
The rule is settled that if the situation were reversed and the husband's funds alone had been used to purchase and pay all installments, and the property deeded to the husband and wife as tenants by the entirety, a rebuttable presumption of gift would arise. Gaede v. Smith, 354 Mo. 738, 190 S.W.2d 931, Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387.
But while some jurisdictions rule to the contrary the decided weight of authority supports the view that if the husband without the written assent of his wife, uses the wife's separate and personal funds to purchase real estate, and title is taken in estate by entirety, the law considers the transaction as a gift or settlement upon her a constructive trust arising in her favor. The parties are entitled to show by parol the circumstances surrounding the transaction. The evidence to establish the trust must be so clear and convincing as to leave no doubt in the mind of the court as to the existence of the trust. Whether plaintiff intended her husband take and hold with her by entirety as a gift from her, or only in event of certain contingencies, was a question of fact for the Chancellor, and for this Court on hearing de novo. Milligan v. Bing, 341 Mo. 648, 108 S.W.2d 108, Lewis v. Lewis, supra, Jankowski v. Delfert, supra. See also, Restatement of the law of Trusts, Sec. 442, Annotation at 113 A.L.R. 340, and cases cited, Woerheide v. Kelley, (Mo.Sup.) 243 S.W. 158, Larrick v. Heathman, 288 Mo. 370, 231 S.W. 975, Moss v. Ardrey, 260 Mo. 595, 169 S.W. 6, McLeod v. Venable, 163 Mo. 536, 63 S.W. 847, R.S.Mo. 1939, Secs. 3390, 3495, 41 C.J.S. Husband and Wife, § 251. Any presumption of settlement or gift in any event is rebuttable by proof of circumstances showing a contrary intention, and on such rebuttal a constructive trust arises. 54 Am. Juris. Trusts, p. 160.
We think the Chancellor, under the instant facts and circumstances, properly found the issues for the plaintiff and against the defendant, and properly decreed "that defendant has no claim, right, title or interest in said property, and that plaintiff is the absolute owner thereof in fee simple, free and clear of any claim, lien or title of defendant, and the full fee simple title and ownership of said premises is hereby vested and confirmed in the...
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