Tichenor v. Bowman

• Citation: 133 S.W.2d 324
• Decision Date: 12 September 1939
• Docket Number: No. 35612.,35612.
• Parties: TICHENOR et al. v. BOWMAN et al.
• Court: United States State Supreme Court of Missouri

133 S.W.2d 324

TICHENOR et al. v. BOWMAN et al.

No. 35612.

Supreme Court of Missouri, Division No. 2.

September 12, 1939.

Appellants' Motion for Rehearing Overruled November 22, 1939.

Appeal from Circuit Court, Newton County; Emory E. Smith, Judge.

Partition proceedings by Ozelle Tichenor and others against Leo Bowman, by Fatima A. Bowman, his guardian ad litem, and others. From a judgment for the plaintiffs, defendants appeal.

Affirmed.

Leo H. Johnson, of Neosho, for appellants.

W. A. Phipps and Ruark & Ruark, all of Neosho, for respondents.

BOHLING, Commissioner.

Samuel L. Bowman was twice married. He died in 1919, intestate, leaving surviving four children, issue of his first marriage, and Fatima A. Bowman, his widow, and three children, issue of his second marriage. In 1934 his heirs by his first wife instituted this action against his widow and children by his second wife to partition an eighty acre tract of land in Newton county, Missouri, standing of record in his name. This review turns on the issue that under the evidence Mr. Bowman, without the written assent of Mrs. Bowman, invested her separate property in the purchase of the said eighty acres; and that, under Sec. 3003, R.S.1929, Mo. St.Ann. § 3003, p. 5064, the record title standing in his name was held by him in trust for her. Mrs. Bowman asked affirmative relief. The court nisi found for plaintiffs and defendants appealed.

Fatima A. Bowman's first husband was Gotlieb Gerster. He died intestate in 1895, survived by his widow and two children, Beulah and Omer. They succeeded to his interest in a forty barrel mill in Stella, Missouri. Mrs. Bowman testified that after Mr. Gerster's death she and the children owned a half interest in the mill property, a partnership known as the Stella Milling Company, and an inventory of record shows that she and William W. Baker each owned a half interest.

Mrs. Gerster and Mr. Bowman married in 1899; and Mr. Bowman started working in the mill. Mrs. Winnie A. Kitts, daughter of Mr. Baker, on October 3, 1902, conveyed the eighty acre tract to Messrs. Baker and Bowman for the recited consideration of $1,650, of which $450 was paid in cash and the balance evidenced by a $1200 note, secured by a deed of trust on said real estate, executed by said grantees and their wives. Mr. Baker died in 1906. His will, so far as material, passed his property to Harriet E. Baker, his widow. The record discloses two deeds dated September 3, 1907, from Mrs. Baker to Mr. Bowman. In one she conveyed her interest in the eighty acres for $1,100, and in the other her interest in the mill property for $2,200. It appears that the $3,300 total consideration was paid in cash, but to secure a portion of the same a note for $1,500 was executed to the Bank of Stella and signed by Mr. and Mrs. Bowman.

Plaintiffs contend that, giving consideration to all the evidence, Mrs. Bowman failed to make the required proof. We think the position well taken, especially if we accord to the chancellor nisi that deference to which his findings are entitled upon review, and pass other issues presented by plaintiffs.

"It is well settled that to establish an implied trust, whether it be a resulting or a constructive trust, `an extraordinary degree of proof is required.'" Norton v. Norton, Mo.Sup., 43 S.W.2d 1024, 1032[6], citing Ambruster v. Ambruster, 326 Mo. 51, 67(1), 31 S.W.2d 28, 34[1], 77 A.L.R. 782; Parker v. Blakeley, 338 Mo. 1189, 1201[2], 93 S.W.2d 981, 987[3]. Vague or shadowy evidence (Russell v. Sharp, 192 Mo. 270, 285, 91 S.W. 134, 138, 111 Am.St.Rep. 496) or a preponderance of the evidence (the Russell, Parker and Norton cases, supra), is not sufficient. Quoting further from the Parker case, supra [338 Mo. 1189, 93 S.W.2d 987]: "* * * the evidence must be so clear, cogent, positive, and convincing `as to exclude every reasonable doubt from the chancellor's mind.'" See also McKee v. Downing, 224 Mo. 115, 141(IV), 124 S.W. 7, 16; Milligan v. Bing, 341 Mo. 648, 652[1], 108 S.W.2d 108, 109[3]; the Norton and Ambruster cases, supra, and cases there cited.

Several witnesses, E. M. Lentz, May Barlow and J. M. Maness, testified to statements made to them individually by Mr. Bowman to the effect that the eighty acres belonged to Mrs. Bowman. Somewhat similar testimony was adduced from witnesses A. Maness and William Barlow, brother of Mrs. Bowman; but their testimony is of less probative value than other testimony of record and is not developed. Mr. Lentz testified the statements were made while he was employed in the mill — 1901 to 1909, and he was also of the opinion he had been told the deeds were made to the Stella Milling Company. J. M. Maness, a merchant at Stella, testified Mr. Bowman made such statements to him on several occasions. Mrs. Barlow narrated but one instance.

J. F. Lentz testified he worked at the mill between 1899 and 1906 keeping the books and that the books showed the money taken in and paid out. He had no definite knowledge as to how Mrs. Kitts was paid and could not recall Mr. Bowman (or Mr. Baker) ever saying anything about the ownership of the eighty acres; and to like effect was the testimony of Bud Craft, employed at the mill for four years, beginning in 1907 or 1908.

Mrs. Beulah Lentz (nee Gerster) testified she was born in 1893 and was not actively at home after reaching fifteen; that her mother and Mr. Baker owned the mill; that around the home the eighty acres were referred to as "the farm"; that her mother purchased "the farm" and the Baker interest in the mill; but the details of her knowledge thereof developed in this record go no further than that her mother was supposed to buy the mill and her mother thought the payments were made "out of the mill and it was hers."

Omer Gerster testified he rented the eighty acres from his mother; that Mr. Bowman would talk about his mother owning the farm and the mill; that he was a bookkeeper, had searched the mill records from 1896 t...