Wilber v. Wilber

• Decision Date: 14 April 1958
• Docket Number: No. 46151,No. 1,46151,1
• Parties: Bessie A. WILBER, Respondent, v. Joel M. WILBER, Appellant
• Court: Missouri Supreme Court

Page 86

312 S.W.2d 86

Bessie A. WILBER, Respondent, v. Joel M. WILBER, Appellant.

No. 46151.

Supreme Court of Missouri, Division No. 1.

April 14, 1958.

Kenneth E. Bigus, Leon E. Bloch, Jr., Kansas City, for appellant.

Ruby D. Garrett, Thomas B. Welton, Kansas City, for plaintiff-respondent.

COIL, Commissioner.

Bessie and Joel Wilber, plaintiff and defendant below, were married in 1944, lived together until their separation in March 1954, and were divorced in October 1955. On June 1, 1948, title to real estate located at 3419 Troost Avenue in Kansas City was conveyed by warranty deed to plaintiff and defendant as tenants by the entirety under the circumstances hereinafter mentioned. In this suit, instituted subsequent to the divorce, plaintiff sought to be declared the sole owner of the property in question, while defendant claimed a one-half interest as a tenant in common. The trial court's judgment was that plaintiff was the sole owner of, and that defendant had no right, title, or interest in, the property.

It is plaintiff's theory that defendant, as cograntee in the warranty deed, held the interest conveyed to him upon a constructive trust for her. Defendant contends that plaintiff's evidence not only failed to support a conclusion that any trust arose but that, on the contrary, all the evidence showed the parties owned the property as indicated by the face of the deed, viz., as tenants by the entirety who became tenants in common by reason of their divorce.

We first state some undisputed facts. The Troost property consisted of apartments which, after being repaired and remodeled, were rented. The total purchase price was $14,000, of which $6,000 was paid in cash and $8,000 evidenced by a note to be paid monthly secured by a deed of trust. The note and deed of trust were signed by both plaintiff and defendant. The total purchase price had been paid prior to the institution of this suit. In 1936, prior to their marriage, the parties had purchased the Donner Transfer Company by each contributing the sum of $250 and had operated that business as a partnership until March 15, 1954. The Donner partnership bank account was the only one either party had at any of the times here pertinent. From 1927 until 1947, plaintiff operated a beauty shop and, after the purchase of the transfer company in 1936, also took care of telephone calls and inquiries and kept books and records for the partnership.

In 1946 plaintiff and her daughter purchased property on Holmes Avenue in Kansas City which, shortly after their marriage, plaintiff and defendant occupied as their residence until the acquisition of the property in litigation. Defendant had no interest, and claims none, in the Holmes property. In August 1949 plaintiff and her daughter sold the Holmes property, from which each received one half of a $3,000 down payment and each had received and was receiving at trial time one half of $110.32 monthly payments which were to continue until 1959.

We now state plaintiff's evidence as to the circumstances surrounding the acquisition of the Troost property. Between February and June 1948 plaintiff looked at the property several times and discussed its possible purchase with the owners. The original asking price was $16,000 which she persuaded sellers to reduce to $14,000. She intended to buy the property in her own name and her husband had nothing to do with the negotiations for its purchase except that he did look at it with her on one occasion. Shortly prior to the purchase, defendant told her that it had been embarrassing for him to have lived in the Holmes property and not to have had it in his name; that it would look better and suit him better and avoid embarrassment to him if plaintiff would have his name included in the deed; and that if she would do so, he would never make any claim to an interest in it, would convey it as she might direct at any time, and the property would always be hers. Acting upon and relying upon those representations, plaintiff had her husband's name inserted in the deed and, even though she did not consult with counsel as to the wisdom of so doing, she realized that the deed thereby showed that he had an interest in the property.

During the 20 years she had operated a beauty shop, plaintiff had accumulated about $8,000 which she kept in a safe-deposit box rented by her daughter. She made the down payment of $6,000 in cash from that money and, in the presence of defendant, received a receipt from the sellers made to her as an individual. Plaintiff and defendant moved into the property some time in early August 1948 and continued to live there until defendant left in March 1954. Plaintiff made all the plans for the addition of kitchenettes and other remodeling and, in the main, furnished the materials and work which went into the improvement of the property and rented and collected the rent for each of the apartments. She used most of her half of the $3,000 down payment received from the sale of the Holmes property in improving the Troost property. She also used some of the $2,000 remaining in the safe-deposit box after payment of the $6,000 in refurbishing the property. She made all the monthly payments on the purchase price note from her separate funds (mainly rentals from the Troost property) until the entire balance of $8,000 had been paid. No part of any such payment came from any of defendant's funds.

As noted, the only bank account was the partnership account of Donner Transfer Company. Plaintiff received the rents from the Troost property and later the monthly payments from the Holmes property, sometimes made certain payments in cash, but, in most instances, deposited all those receipts in the Donner account and wrote checks on that partnership account to make the monthly payments on the note and to make all other payments to satisfy obligations pertaining to the Troost property. She sent one daughter a monthly check for one half the $110 received from Holmes and sent another daughter a monthly check for $50 out of the Holmes and Troost receipts. She kept a complete and accurate record of the amounts of the receipts from the two properties which were deposited in the Donner account and saw to it that only those amounts and none of the partnership (transfer company) funds were used to pay anything due on or in connection with the Troost property. Those records were not in her possession at trial time. They had disappeared from the premises of the transfer company (which was operated out of a portion of the Troost property) on the day defendant left.

Some of plaintiff's witnesses testified that defendant had stated during the time he lived in the Troost property that the home was his wife's and that he had no interest in it. Others testified to the fact of paying rent to plaintiff rather than to defendant and that defendant did nothing to improve the property while plaintiff worked diligently at it.

We now state defendant's evidence as to the circumstances surrounding the acquisition of the Troost property and its use and status thereafter. Defendant and plaintiff discussed the acquisition of the property and agreed that 'we'd buy the house together, and pay for it together, and build the place up and make something out of it.' Defendant did not suggest that he would be embarrassed if his name were not on the deed, or ask his wife to include his name in the deed for that reason, or ever agree to reconvey or to hold the property and do, with respect to it, whatever plaintiff asked him to do. Defendant said at one place in his testimony that the $6,000 down payment was made from funds which his wife had, some amount from the partnership account, and an amount which she was to borrow from her daughter and which latter amount he and his wife were to repay. At another place in his testimony he said that his wife furnished the $6,000 and that he did not furnish any part of it. (There was no evidence that any part of the $6,000 had been borrowed by plaintiff from her daughter and, at best, defendant's statement that some of the down payment came from partnership funds was so indefinite as to amount or other details as to be lacking in probative force.)

Defendant did not discuss with plaintiff the amounts of the monthly payments due on the note secured by the deed of trust but he did know at one time how much they were but at trial time...