West v. Witschner

• Decision Date: 13 May 1968
• Docket Number: No. 52965,No. 2,52965,2
• Citation: 428 S.W.2d 538
• Parties: Theodore R. WEST and Grace Goode, Appellants, v. Ira K. WITSCHNER, J. J. Filsinger and Doris Filsinger, Respondents
• Court: Missouri Supreme Court

Page 538

428 S.W.2d 538

Theodore R. WEST and Grace Goode, Appellants, v. Ira K. WITSCHNER, J. J. Filsinger and Doris Filsinger, Respondents.

No. 52965.

Supreme Court of Missouri, Division No. 2.

May 13, 1968.

Motion to Modify Opinion Denied June 10, 1968.

Claude L. Schenck, Kansas City, for appellants.

William H. Ergovich, Lynn B. Nelson, Kansas City, for appellants.

HERBERT K. MOSS, Special Judge.

This being a suit in equity to set aside a deed, jurisdiction is in this court as title to real estate is involved. Article 5, Section 3 of the Constitution of Missouri, V.A.M.S.

Plaintiffs' petition in Count 1 prays to set aside a deed signed by Plaintiff, Theodore West, and his wife, to an undivided one-half interest in real property located at 1617 Forest in Kansas City, Missouri, and to strike said deed from the records of the Jackson County Recorder of Deeds' office, all on the grounds that one William Pine, acting as agent for Defendant Ira K. Witschner, by false statements and representations persuaded Plaintiff Thedore West and his wife Charlene West to sign their names as grantors on a blank printed warranty deed; that Plaintiffs never authorized Pine or anyone else to fill in the blank spaces; that West and wife did not appear before a notary public as purported to acknowledge the deed; that the names of J. J. Filsinger and Doris Filsinger were fraudulently inserted as grantees; and that Filsingers thereafter conveyed the said one-half interest to Defendant Witschner.

Plaintiffs' petition in Count 2 on behalf of Grace Goode prays that an amended judgment decree on September 8th, 1964, in a cause of action filed in the Circuit Court of Jackson County, Missouri, by Witschner after he acquired West's one-half interest and styled 'Ira K. Witschner, Plaintiff, versus Grace Goode, Defendant,' Case No. 660309, be voided, which decree ordered partition and sale of real estate located at 1617 Forest, Kansas City, Missouri. Count 2 further prays that a certain commissioner's deed be stricken and that title be restored to Goode. In Count 2 Plaintiff Goode incorporates all allegations in Count 1 and alleges that Witschner listed the above partition suit on July 21, 1964, for trial as a default case, although the cause was at issue, and on July 22, 1964, in Division 6, Circuit Court, Jackson County, a judgment was entered ordering partition, that an amended judgment decree was entered September 8, 1964, that neither Plaintiff Goode nor her attorney were present at the trial, did not receive notice that it was to be tried or that judgment had been entered. Plaintiff Goode alleges the listing of the cause by Witschner for default was in violation of Rule 14 of the Circuit Court, Jackson County, which rule requires a party or attorney listing a cause for trial or for judgment by default, to notify opposing party or counsel, in writing of the listing, and that Witschner by fraudulent statements and acts deceived the Court (Divisions 6) in hearing the cause as a default, all of which ultimately resulted in the sale of the real estate to Witschner for a price below its value. In Counts 3 and 4 Plaintiff Goode claims damages and in Count 4 claims punitive damages.

In answer, Defendant Witschner alleges that on November 16, 1964, more than thirty days after judgment for partition was entered, Goode by her attorney, Leona Pouncey Thurman, filed a motion to set the judgment aside on the grounds that Goode had filed an answer, was not in default and had not been notified of the sale. The answer alleges this motion to set aside was heard and overruled on January 8, 1965, and, therefore, the issues in Count 2 were res adjudicata.

This case was tried as an equity case to the Court without jury and the Court made no formal findings of facts or law, nor was the Court requested to do so. The Chancellor at the conclusion of Plaintiffs' evidence sustained Defendant Witschner's Motion for Judgment on Count 1, and overruled the Motion as to Counts 2, 3 and 4 and at the conclusion of all the evidence found Plaintiffs take nothing from the Defendants on all counts. The Court made no order as to Defendant Filsingers, who filed no pleadings, were not represented by counsel and were in default.

The Plaintiffs have appealed, contending as to Count 1, the deed should be set aside as having been procured by fraud; the printed warranty deed form, having been signed in blank, is void; the warranty deed from West to Filsingers should be stricken and cancelled from the records of the Recorder of Deeds for the reason of fraudulent acknowledgement; and that the trial court should have found for Plaintiffs against Filsingers, who were in default. On Count 2, which Count incorporated by reference all allegations in Count 1, the Plaintiffs appeal from the trial court's failure to set aside the judgement in the partition suit, on the ground that this partition suit should not have been heard by the Court as a default. The appeal on Counts 3 and 4 is on the ground the Court erred in failing to enter a judgment for damages as prayed.

The legal description of the real estate located at 1617 Forest, Kansas City, Missouri, is the south twenty-one (21) feet of Lot 24 and the north seven (7) feet of Lot 25, Block 24, Dundee Place, a subdivision in Kansas City, Jackson County, Missouri. Evidence describes this as a lot twenty-eight (28) feet by a hundred and twenty-five (125) feet with a vacant house thereon. Facts from the evidence are that Samantha Birkhead had fee simple title to realty located at 1617 Forest. She died intestate at Kansas City, Missouri, on April 13, 1962; no administration of her estate was had. The property descended to West and Goode, each taking a one-half undivided interest therein. West lived with his wife, Charlene West, at 2438 College, Kansas City, Missouri, and Goode resided at Chicago during the events herein. On December 17, 1963, William Jack Pine contacted West by telephone. Pine wanted to talk to West about the property at 1617 Forest. Pine was unknown to West. Pine arrived fifteen minutes later, alone. West informed Pine he did not have anything to do with the property on Forest. West accepted from Pine a sum of money described as one hundred and fifty or two hundred dollars for his one-half interest in the realty. A general warranty deed from was produced by Pine and West and his wife signed as grantors. At the same time West signed a receipt dated December 18, 1963, which stated 'Received of William Pine Two Hundred ($200.00) Dollars, payment in full for warranty deed to my one-half interest to 1617 Forest, Kansas City, Missouri.' At the same time West also signed a statement and gave it to Pine, stating that West was the only child of one Theodore C. West, deceased, that said Theodore C. West was the only son of Samantha Birkhead, that Samantha Birkhead left surviving her only one child, Grace Goode of Chicago, and that Birkhead had no other deceased children, nor any child or children of any deceased child or children. The Wests with respect to Count 1 testified that they did not know the grantees, Filsingers, never appeared before notary public Betty Ann Wilson, nor any other notary to acknowledge their signatures. West claimed he thought signing the deed would help West's cousin get a home on Swope Parkway. The West-to-Filsinger deed and the Filsinger-to-Witschner deed, each recorded December 18, 1963, bore consecutive serial numbers in the Recorder of Deeds' office. Each deed was acknowledged before notary Wilson. The Wests testified they saw 'no writing' on the general warranty deed when they signed it.

On receiving title to Wests' one-half interest, Witschner filed against Goode a petition for finding heirship and in partition, Case No. 660309 in the Circuit Court, Jackson County, Missouri, naming Goode as Defendant, all of which is the subject of Count 2. Value of the real property was variously described in the testimony to be from six hundred dollars to ten thousand dollars. At the time of the trial the house had been condemned and ordered wrecked by the City of Kansas City and had been vacant and vandalized.

Although not making formal findings, the Court expressed its opinion at the conclusion of the Plaintiffs' evidence on Count 1 as follows: 'Plaintiff West does have the burden of proof, and regardless of what the cases have said in the matter of fraud that the proof must be clear, cogent and convincing and so as to leave no room for doubt in the mind of the Chancellor, we needn't go to any such extraordinary burden of proof as a test of whether he has made a case. By the simplest test of preponderance of the evidence he has failed to make a convincing case that the Defendant Witschner or any agent of the Defendant Witschner by fraudulent misrepresentations induced him to execute a warranty deed. He and his wife under their own testimony clearly understood that they were signing a deed of some sort. The testimony that they were aiding a cousin in some remote way is preposterous and unbelievable and cannot be accepted by the court. It is completely at variance and at war with a receipt that was signed and with the statement of genealogy as it has been referred to. The testimony of the ex-wife was somewhat unusual in the change that occurred in such testimony between the time before the recess and the time after the recess. Her credibility was considerably impaired by the shifting of the testimony with regard to that matter.' (The 'shift' in testimony concerned her identification of West's signatures on the receipt and on the genealogy statement.)

In equity suits it is well established the reviewing court, although not bound thereto, will defer to a large extent to the findings of the Chancellor, but, nevertheless, will come to its own conclusion on the evidence in the record, de novo, and it is the primary duty of the reviewing court to make its own determination of the facts on the record,...