Wilkinson v. Tarwater

• Decision Date: 13 September 1965
• Docket Number: No. 51061,No. 2,51061,2
• Citation: 393 S.W.2d 538
• Parties: Goldie WILKINSON, Appellant, v. Margaret Mary TARWATER, Respondent
• Court: Missouri Supreme Court

Page 538

393 S.W.2d 538

Goldie WILKINSON, Appellant, v. Margaret Mary TARWATER, Respondent.

No. 51061.

Supreme Court of Missouri, Division No. 2.

Sept. 13, 1965.

Donald L. Mason, John J. Hager, Kansas City, for appellant.

Shockley, Searing, Sandifer, Reid & Koger, Kansas City, for respondent.

STORCKMAN, Judge.

This is a suit in equity to declare an equitable lien on real estate. The amount involved is $23,650, the purchase price of the property. The decree was in favor of the defendant and the plaintiff has appealed.

The plaintiff, Goldie Wilkinson, is a sister of John Nolan Tarwater who died August 10, 1960, at the age of sixty-two; the defendant, Margaret Mary Tarwater, is the widow of Mr. Tarwater. In 1957 Mr. and Tarwater were living with their two daughters at 3834 College Avenue in Kansas City. Because of their dissatisfaction with the changing character of the neighborhood, they began looking for a new home. Mr. and Mrs. Tarwater were accompanied on some of their house hunting trips by Mrs. Wilkinson who had inherited about $40,000 in corporate stock from her husband who in turn had inherited it from an aunt shortly before his death. Eventually the house in question located at 206 West 65th Terrace North in Clay County was found and purchased. It is undisputed that Mrs. Wilkinson furnished the entire purchase price of the house. She gave her brother, Mr. Tarwater, a check for $500 for the down payment when the purchase contract was signed on June 27, 1957. When the deed was delivered on July 22, 1957, she wrote two additional checks, one for $14,500 and the other for $8,648, which paid the ourchase price in full. The grantees in the deed were Margaret Mary Tarwater, John Nolan Tarwater, and Goldie Wilkinson, as joint tenants with right of survivorship and not as tenants in common. The Tarwaters moved in and occupied the house as their home. Mrs. Tarwater continued to live there after the death of her husband in August 1960. Mrs. Wilkinson's theory is that the sum of $23,500 paid by her was a loan to Mr. and Mrs. Tarwater which was to be repaid from the proceeds of the sale of the College Street house and the balance at the rate of $100 per month. Mrs. Tarwater denies that the money was a loan and says it was a gift to her and her husband. Mrs. Tarwater concedes that she and Mrs. Wilkinson now own the property as joint tenants. They were the only witnesses in support of their respective contentions.

Mrs. Wilkinson testified that the Tarwaters on several occasions took her along when they were looking at homes, that she had seen the house in question about three times before it was purchased. The way the Tarwaters were supposed to 'handle this transaction' according to Mrs. Wilkinson was that 'they were supposed to sell their house on College and give me the money from that house and a hundred dollars a month.' The house occupied by the Tarwaters on College had been owned by Mrs. Tarwater's mother, but before the mother's death title had been transferred to Mrs. Tarwater and her brother. When the house was sold, Mrs. Tarwater realized about $4,500 as her share of the proceeds of the sale.

Mrs. Wilkinson further testified that the title to the property in question was made out to her and the Tarwaters because 'I wanted to have a little security that I had put the money up'; that before she advanced the money the Tarwaters had told her that they would repay it; that about three years before the trial, the Tarwaters came to her home and asked her for the two cancelled checks given when the purchase was completed, and she gave them the checks; that at the time of death of Mrs. Tarwater's mother, which according to the evidence occurred in August 1958, Mrs. Wilkinson found out that the house on College had been sold; that she did not receive any of the proceeds of the sale or any other payment from the Tarwaters, and that she made demand on the Tarwaters but she did not give the date or the circumstances under which the demand was made.

Bearing on her theory of the case, Mrs. Tarwater testified that her husband was a printer for the Kansas City Star earning $125 per week and they figured they 'could handle' a house costing between $12,000 and $15,000 and they were chiefly looking at houses in that price range; that Mrs. Wilkinson telephoned on a day that Mr. Tarwater was off from work, Mrs. Tarwater answered the telephone and Mrs. Wilkinson asked her whether she would still like to have the house on West 65th Terrace and Mrs. Tarwater told her she would; that Mrs. Wilkinson then asked if Nolan was there and Mrs. Tarwater called him to the telephone. Later that day, the Tarwaters picked up Mrs. Wilkinson and the three of them went over and looked at the house again, then went by the real estate company and found out about the price, the property lines, restrictions and such matters. Thereafter, Mrs. Wilkinson stated in Mrs. Tarwater's presence that she 'was going to give us that because she had, was getting all this money and later on she would give the others something; that for us not to say a word about it to anyone because it was none of their business.' Mrs. Wilkinson has three brothers in addition to Nolan. She had no sisters living. Her mother and father were dead and she did not have any children. Later the Tarwaters and Mrs. Wilkinson went to the real estate company, made the down payment, and signed the earnest money contract. In the words of Mrs. Tarwater 'We were in there signing the paper, it's a small paper, and my husband signed it and I signed it, and Goldie [Mrs. Wilkinson] got up and came over and she says, 'I'm going to put my name on there too.' She says, 'If anything would happen to you,'--then referring to my husband--'and she remarried, her husband would be enjoying that property.'' Mrs. Wilkinson then signed the purchase contract along with Mr. and Mrs. Tarwater. Mrs. Tarwater denied that she or anyone in her presence ever stated to Mrs. Wilkinson that the money she was advancing would be repaid in any manner, and said she and her husband never made any agreement that the property would be security for repayment of the money.

Mrs Tarwater further testified that she had lived in the house continuously since it was purchased; that Mrs. Wilkinson had visited in the home and that no demand was made for the repayment of the money advanced until August 27, 1962, when the plaintiff filed suit in Jackson County which was dismissed because of venue and the present action was filed in Clay County; that she never agreed to convey or transfer the proceeds of the sale of the College Avenue property to Mrs. Wilkinson; that she and her husband made improvements on the 65th Terrace property such as putting in a retaining wall, partitioning and remodeling the basement and carpeting the house throughout; that the cost of carpeting and building the retaining wall was paid out of her share of the money received from the sale of the College Avenue property; that she knew Mrs. Wilkinson was not independently wealthy and had worked until her mother took sick; that she, Mrs. Tarwater, and her husband looked at a number of houses in the $25,000 range if such houses happened to be in the addition in which they were looking, but that she had no expectation that they would be able to buy a house in that price range.

Mrs. Tarwater further testified that she realized that Mrs. Wilkinson became a part owner of the property by putting her name on the warranty deed and that was all right with her. Mrs. Tarwater denied that she made any statement that Mr. Tarwater's life savings were invested in the house and denied that she and Mr. Tarwater went by the plaintiff's house and...