author: KELLY, Judge.

text:
    Floyd P. KELLER, Sr., Plaintiff-Respondent, v. Winifred Laura PORCHEY et al., Defendants-Appellants.
    No. 37507.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Feb. 8, 1978.
    Benson Cytron, House Springs, for defendant-appellants.
    Jack C.' Stewart, Dennis H. Tesreau, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for plaintiff-respondent.
   KELLY, Judge.

In this appeal from the judgment of the Circuit Court of Jefferson County quieting title to a parcel of real estate and the improvements thereon in plaintiff-respondent, Floyd P. Keller, Jr., and denying the counter-claim of defendant-appellant, Winifred Laura Porchey, for partition, the single point raised by the defendant-appellant is whether the trial court erred in finding for the plaintiff-respondent on the evidence adduced. For reasons hereinafter stated we conclude that the judgment must be reversed and the cause remanded for a new trial.

The crucial issue, as we view it from the pleadings and the record, is the nature of the tenancy enjoyed by the plaintiff (as Mr. Keller shall hereinafter be identified) and the defendant (as Mrs. Porchey shall hereinafter be identified) in a “joint checking account” they maintained between the years 1961 and 1972, and the utter lack of evidence whether it constituted a statutory joint account with right of survivorship pursuant to the provisions of § 362.470 V.A. M.S., or what was the intent of the parties with respect to the tenancy created by the establishment of the account at the time said “joint checking account” was opened. While both parties, throughout the course of the trial referred to the checking account into which both deposited their respective earnings and from which each made withdrawals for housekeeping expenses, rental payments, etc., neither produced any evidence at trial from which the trial court could reasonably deduce the nature of the tenancy in the said “joint checking account.”

We believe that the legal rights and responsibilities of these parties with respect to this “joint checking account” must be settled prior to resolving their conflicting claims to the subject property. It is conceded by the parties that although title to the property was deeded to them as husband and wife and as tenants by the entirety, by operation of law, due to the fact they had never legalized their status as husband and wife by participating in a marriage ceremony, they took'title as tenants in common. Anderson v. Stacker, 317 S.W.2d 417, 421[3] (Mo.1958). Plaintiff pleaded and tried his case on the theory that he furnished all of the consideration for the purchase of the property. Defendant alleged and tried her counter-claim on the theory that she took as a tenant in common and was therefore entitled to a one-half interest in the property. It has been held in Anderson v. Stacker, supra, that in a case with facts similar to this that in such cases the property is to be apportioned on the basis of the contribution of each of the parties towards the acquisition of the property.

Admittedly payments connected with the purchase of this property were made out of the “joint checking account” by the plaintiff during the time the parties were cohabiting together. The funds of these parties were comingled so that this is not a case of only one of the owners of a joint account making the deposits and the other contributing nothing to the common fund. As has been recognized by the appellate courts of this State, the term “joint checking account” is used indiscriminately not only by depositors but also by financial institutions and the term is appended to “joint accounts” held by tenants in common, tenants with right of survivorship, tenants by the entirety, and to accounts in which an agent has authority to draw. Melton v. Ensley, 421 S.W.2d 44, 52 (Mo.App.1967).

While it has been held that the burden of proving the nature of the tenancy enjoyed by the co-tenants in a “joint account” rests on the party relying thereon, Melton v. Ensley, supra, l.c. 52[8], we find from the record that plaintiff referred to the checking account as a “joint checking account” during the course of his case, introduced checks showing that the account was a “joint account” in the name of “Floyd P. Keller or Laura Keller” and that sums of money from the joint account were drawn by said checks to make payments relative to the purchase of this property.

Because of the uncertainty created by the absence of evidence concerning the tenancy enjoyed by these co-tenants in their joint account to which both made substantial contributions from their earnings we exercise our discretion and reverse the judgment and remand the case for a new trial. In re M_ P_ S_, 342 S.W.2d 277, 283[12] (Mo.App.1961).

Judgment reversed and cause remanded for a new trial.

GUNN, P. J., and WILLIAM H. CRAN-DALL, Jr., Special Judge, concur.

      . Both parties have married since their separation in 1967; Mr. Porchey is defendant-appellant’s husband.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    George R. McFARLAND et al., Respondents, v. Lewis A. BRADDY and Donna Braddy, his wife, Appellants.
    No. 38085.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      Tyree C. Derrick, St. Louis, for appellants.
    Roberts & Roberts, V. Kenneth Rohrer, Farmington, for respondents.
   NORWIN D. HOUSER, Special Judge.

Action in ejectment and for damages, rents and profits (Count I) and to quiet title (Count II) to a tract of land in St. Francois County, and to annul two deeds to the land and expunge the deeds from the land records (Count III). Defendants filed a Counterclaim in three counts, (I) to quiet title in defendants based on implied trust, tenancy by the entireties, and a warranty deed from the survivor; (2) alternatively, to quiet title in defendants on the basis of adverse possession, and (3) alternatively to recover for improvements made on the land. Without the aid of a jury the circuit court heard all phases of the case except the issues of damages, rents and profits. The court found the issues for plaintiffs and against defendants on Counts I, II and III of the petition, except for the issues of damages, rents and profits, which were submitted to a jury. The court found the issues for plaintiffs and against defendants on all three counts of the counterclaim. The jury returned a verdict for plaintiffs and against defendants for $1.00 damages and $67.50 monthly rents and profits until possession was restored to plaintiffs. Defendants appealed from the ensuing judgment.

Plaintiffs assert title through their grandfather, Ed Curlee, who they claim was vested with fee simple title absolute in 1935. Ed Curlee died intestate in 1955. Plaintiffs contend that from Ed Curlee, plaintiffs’ mother Mary McFarland (Ed and Emma Curlee’s only child) inherited the land subject to Emma’s dower right (never assigned), her right of quarantine (which they say expired 10 years after Ed Curlee’s death), and her homestead right (which they say terminated upon the death of Emma Curlee March 1, 1974); that plaintiffs inherited the land from their mother, Mary McFarland (who died intestate in 1958), subject to the rights of their father Delbert McFarland, which terminated upon the execution by him of a quitclaim deed to plaintiffs.

Defendant Lewis A. Braddy (son of Emma by a former marriage; never adopted by Ed Curlee), claims title by deed dated February 7, 1967 from Emma Curlee to him. He traces his title back to Otto Behrbaum, who by way of gift deeded one portion and willed another portion of this land to Ed Curlee and Emma Curlee, subject to underground rights in 80 acres Behrbaum devised to Walter Meltzer, and an $800 mortgage held by St. Francois County School Fund. Lewis claims that in 1935 the county demanded payment of the $800 mortgage from the Curlees who, acting on advice of counsel, allowed the mortgage to be foreclosed and the land sold at public sale; that Ed Curlee purchased the land at the sale for $1,200; that three days after the foreclosure sale Ed and Emma Curlee signed a bond and deed of trust on the land to the school fund for $1,200— money used to pay the amount Ed Curlee bid at the sale; that the foreclosure wiped out Meltzer’s interest and the $800 lien; that both Ed and Emma intended to have the sheriff’s deed name both of them as grantees, as tenants by the entireties, but by mischance the sheriff’s deed, dated May 6, 1935, named Ed Curlee alone as grantee instead of both of them; that when Emma pointed out to Ed that he was named as sole grantee he acknowledged the error and promised to have the deed corrected to include Emma’s name as a grantee with Ed, but that he failed to do so; that when Ed bought the land at the sheriff’s sale and took title in his name he thereupon and at that time took title in trust for Emma and in equity held title with her as tenants by the entireties on the basis of a constructive trust; that Ed Curlee paid the $1,200 bond partly from funds supplied by Emma, and the deed of trust was cancelled; that upon Ed’s death January 15, 1955 Emma as survivor succeeded to the entire title, giving her good right to convey to Lewis on February 7, 1967.

The appellate court will sustain the decree on issues tried to the court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

Appellants, contending there is no substantial evidence to support the decree; that it is against the weight of the evidence and that the court erroneously applied the law, make two points: that the court erred (1) in failing to decree that a constructive trust arose at the moment Ed Curlee bought the land at the foreclosure sale with his and his wife’s money and took title in his name alone, and (2) that the court erred in holding that the deed from Emma to Lewis Braddy was the result of a scrivener’s mistake and was not intended to be executed or delivered.

Applying the tests of Murphy v. Carron, the first critically important question is whether some of Emma’s money went into the purchase of the land at the foreclosure sale, pursuant to an intention on the part of Ed and Emma that title be taken in their joint names as tenants by the entireties, or whether the sheriff’s deed was intended to be a conveyance of the title to Ed Curlee only. If that question is decided favorably to defendants the next vital question is whether the warranty deed from Emma to Lewis dated February 7,1967, purporting to convey the whole farm, was a good and valid conveyance of the fee simple title.

ON THE QUESTION OF SOLE OWNERSHIP OR TENANCY BY THE ENTIRETIES

Unchallenged documentary evidence shows that the sheriff’s deed named Ed Curlee as the sole grantee; that Ed Curlee and Emma Curlee, his wife, signed the $1,200 bond as principals and that they both signed the deed of trust of May 7, 1935 by which they bound themselves to pay that sum, referred to in the documents as money borrowed from the school fund, and that the $1,200 bond was repaid to the school fund as follows:

Date Principal Interest
12-10-1941 $600.00 $60.60
12- 4-1942 400.00 36.00
2-10-1943 200.00 2.00

Receipts signed by the county treasurer were issued in each instance to “Ed. Cur-lee.” The proximity of the dates of the foreclosure (May 4), the sheriffs deed (May 6), and the deed of trust (May 7), together with a consideration of the amount borrowed ($1,200) in comparison with the amount required to satisfy the $800 debt, with interest to March 29, 1935 ($1,007.47), plus interest from March 29 to May 4,1935, plus publication costs, etc., totalling approximately $1,200, constitutes circumstantial evidence that the $1,200 borrowed as aforesaid was used to discharge the debt and costs.

Defendant Lewis A. Braddy supplemented this evidence by giving oral testimony as follows: Ed and Emma went to I. N. Threl-keld, an attorney, to get advice about the threatened foreclosure of the farm. Acting as spokesman, Emma told the lawyer that “she” wanted to borrow the money. The lawyer advised her to “let it go through foreclosure and reborrow the money to pay that off. * * * You can buy it in.” Attorney Threlkeld offered to arrange for the loan, sign the note as a surety and get Joe Diemer to sign as an additional surety. The lawyer advised Ed and Emma that, since Walter Meltzer’s interest in the 80 acres was subject to the school fund mortgage, Ed and Emma could “cut his interest out and have it auctioned and buy in the whole thing ... in both of your names.” Accepting his advice, Ed and Emma said “that was suitable.” Emma came home and told Lewis that “Everything is fixed . . . taken care of”; that the attorney would get the money for them, and said “We are going to buy the place in, buy the farm in.” After the sale Emma told Lewis that they made the deal; that everything was “all in order”; that “they” borrowed the money for the purpose of buying in the farm; that “they” paid the borrowed money to the sheriff “to get the property back in their name.” The sheriff’s deed was sent by mail. Emma looked at it. Ed could not read. She said, “Why, Ed, the sheriff had made a mistake here,” pointing out that only his name appeared on the deed, “You better take that back over there [to Farmington, the county seat] and have it fixed over, have them do it over.” Ed said, “I will do it in a few days.” The question arose several different times. Emma would ask Ed when he was going to take the deed to Farmington. One day in 1935 Ed Curlee had a conversation with Omer Barton in which Ed told Barton “about just his name being on the face of the deed” and that it happened because the “Sheriff made a mistake.” Twice in after years Emma, referring to the correction of the deed to show that the conveyance was to both of them, told Lewis that “Everything has been taken care of.” Lewis testified that his grandfather moved from the southeast part of the state, set up a sawmill, and told Emma that “ * * * all of my spare money that I get, I will give you to make payments on this mortgage.” He claimed that Emma and her father “ * * * saved their money. They pooled their money together, and any time he sold any lumber or anything like that, why, he would give it to Mother to make the payments on the mortgage.” Inconsistently, Lewis later testified that he really did not know where the money came from to make the payments to satisfy the debt due the school fund.

Esther Hoehl, a cousin of Lewis, testified that in two or three conversations over a period of two years she heard Ed Curlee tell her father that he got the money to buy the land at the sheriff’s sale from a school loan and that “he was going to have the sheriff put the deed in both their names . it was supposed to be put in both their names and the sheriff was supposed to do it . he [Ed Curlee] was having it put in both their names.”

Omer Barton testified that he heard Ed Curlee talking to Bill Huís, and that Ed said, “They tell me my deed is wrong or something . . . . I don’t think it’s got my wife’s name on it. Her name is supposed to be on it.” Ed showed Bill the deed. Bill looked at it and said, “Your wife’s name is not on there . . . you better do something about it.” Ed Curlee said, “I guess I will have to.”

On the issue whether Emma’s money was used to pay the school fund mortgage and whether it was the intention of the parties that the sheriff’s deed name as grantees both Ed and Emma as tenants by the entir-eties, the circuit court made the following findings of fact:

“2. (h) That the tract of real estate at issue was deeded to Ed Curlee, only, on May 6, 1935, * * * and that except for a utility easement and a small strip of land to the Missouri Highway Department, title to the tract remained solely his until his death in fee simple absolute. * * *

“(w) That at no time, either before or after 1935, did Ed Curlee promise, by word, conduct or otherwise, to create, vest, convey or give any right, title or interest to Emma Curlee in the tract of real estate in question.

“(x) That there is no creditable evidence the purchase price for the property was paid by Emma Curlee or from funds in which Emma Curlee had any interest and that the receipts for such purchase price are to Ed Curlee only.”

The circuit court made the following conclusions of law on this question:

“3. * * * That title to the property was vested in Ed Curlee in fee simple absolute prior to his death on January 15, 1955. Upon the death of Ed Curlee, Emma Curlee acquired the right of quarantine and the right to homestead in the property as his surviving widow. That dower was never assigned * * * that Emma Curlee acquired and could convey no title in said real estate other than her possessory interest of quarantine and homestead and that Emma Curlee acquired no interest in said property by either adverse possession or as a consequence of a resulting or constructive trust. * * * if

To establish an implied trust an extraordinary degree of proof is required. The evidence must be so clear, cogent, unequivocal and positive as to banish doubts from the mind of the chancellor — to exclude every reasonable doubt in his mind. A preponderance of the evidence is insufficient. The evidence must be so unquestionable in its character, so convincing that no reasonable doubt can be entertained of its truth. March v. Gerstenschlager, 436 S.W.2d 6, 8[1] (Mo.1969).

The documentary evidence establishes beyond question that both Ed Curlee and Emma Curlee signed the bond for $1,200 to raise the money to pay for the land purchased by Ed at the foreclosure sale, and that both of them executed the deed of trust securing the bond. The proceeds of the loan belonged to the borrowers (Ed and Emma Curlee). Emma had an interest in the money. When it was paid to the sheriff in satisfaction of Ed’s bid at the foreclosure sale some of Emma’s money went into the purchase. That leaves the question whether it was paid pursuant to an intention on the part of Ed and Emma that title be taken in their joint names as husband and wife, so as to create a tenancy by the entir-eties. While the documentary evidence does not establish this fact it does corroborate the oral testimony of Lewis in one important particular, namely, that I. N. Threlkeld and Joseph Diemer signed the $1,200 bond as sureties. This bit of documentary corroboration lends credence to Lewis’ testimony relating I. N. Threlkeld’s connection with the matter and leads us to accept that portion of Lewis’ testimony indicating that the parties intended that title be taken in the names of both Ed Curlee and Emma Curlee. Ed and Emma, husband and wife, originally took title as tenants by the entireties by virtue of Behrbaum’s devise to both of them. As such Emma had an undivided interest in the land. When foreclosure was threatened they sought legal advice. To cut out an outstanding cloud on their title they were advised to let the foreclosure proceed, buy the property at the foreclosure sale, and take title in both their names, thus continuing to hold the land in the same way they took by will, that is, to preserve Emma’s interest in the land by Ed and Emma holding the title together as husband and wife. This met with their joint approval. There is no evidence that Ed demurred or suggested that title be taken in his name alone. He willingly went along with the proposed procedure. There is no evidence of any intention to deprive Emma of her interest in the land. The parties undertook to follow their lawyer’s advice. All went according to plan until, the sheriff’s deed was prepared. Either by design, direction, mischance or oversight Ed Curlee was named as sole grantee and Emma Curlee’s name was omitted from the granting clause. As a result Emma was deprived of her rightful title as tenant by the entireties, a benefit she should have had and otherwise would have had. Findings of fact 2(w) and 2(x) are against the weight of the evidence. The conclusion of law that Emma acquired no interest in the property as a consequence of a constructive trust is an erroneous declaration.

In some cases fraud, actual or constructive, is said to be the foundation of constructive trusts. Other cases proceed upon the theory of unjust enrichment or of an unfair or wrongful withholding, without the element of fraudulent intent. If a fiduciary or confidential relationship exists between the alleged trustee and the beneficiary, proof of fraud is not required to establish a constructive trust. These principles are enunciated in Swon v. Huddleston, 282 S.W.2d 18, 25[7, 8] (Mo.1955), and in the cases there cited. And see March v. Gerstenschlager, 436 S.W.2d 6, 8[2] (Mo.1969). There is no suggestion of actual fraud on the part of Ed Curlee (a man unlettered and unable to read or write anything other than his name), but the foregoing facts demonstrate the existence of the closest kind of confidential relationship, and a breach of that relationship, and a classic case of unjust enrichment. Sitting as a court of equity we employ the machinery of a trust to provide a remedy for the wrong done Emma by declaring that upon the execution of the sheriff’s deed Ed Curlee became trustee for her in the land to which she in good conscience was entitled to a present interest, by impressing a constructive trust on the property in her favor, and declaring that Ed and Emma Curlee, husband and wife, held the title as tenants by the entireties.

Plaintiffs-respondents assert that “defendants’ claim of an implied trust is barred by the pleaded defenses of statute of limitations and laches.” This contention “may also be disposed of by the simple suggestion that the sole purpose of the statute of limitations, by its very language, is to bar actions, and not to suppress or deny matters of defense, whether equitable or legal; and that, too, when, as in this case, the equitable defense is accompanied by a prayer for affirmative relief. The purpose of the statute is to quiet the assertion of old, stale, and antiquated demands, but it has never been thought that its intended object was to go further, and to deny a just and meritorious defense, whether the facts of that defense had their birth in the first, tenth, or twentieth year before the call for the assertion of those facts was made necessary by some hostile claim, demand, or proceeding. A ground of defense never becomes stale or barred by the statute of limitations, but grows in strength and force as the limitation period against a right of action widens. The statute of limitations may be used by a defendant as a shield for his protection or defense, but is never to be turned upon him as a sword with which to compass his defeat.” Butler v. Carpenter, 163 Mo. 597, 63 S.W. 823, 824-825 (1901). And see Williamson v. Brown, 195 Mo. 313, 93 S.W. 791, 795 (1906); Hubbard v. Slavens, 218 Mo. 598, 117 S.W. 1104, 1112 (1909); State ex rel. Missouri State Highway Commission v. Fitton, 180 S.W.2d 245, 248[2] (Mo.App.1944).

• ON THE QUESTION OF THE VALIDITY OF THE DEEDS DATED FEBRUARY 7, 1967

It is conceded that two deeds from Emma Curlee to Lewis A. Braddy, both dated February 7, 1967 were placed of record on the land records of St. Francois County. One of them, purporting to convey 4½ acres out of the S.W. ¼ of the N.E. of Sec. 25, Twp. 36, N.Rg. 4 E., was filed for record on March 7, 1967, one month after date of execution. The other, purporting to convey the whole farm, including all of the S.W. ¼ of the N.E. ¼ aforesaid, was filed for record on March 11,1974, seven years after date of execution and eleven days after the death of Emma Curlee.

On this issue Lewis testified as follows: The deed to the 4½ acres was made after several months of discussion between him and his mother, beginning the previous spring, resulting in an agreement that Lewis pay his mother $800. The deed to the whole farm was handed to Lewis in the office of the notary public, to which Emma had been taken “in the car” by Lewis’ wife. Lewis was called to the notary’s office by telephone and handed the deed without any prior knowledge on his part that his mother intended to make this deed. On direct examination Lewis testified that Emma’s reason for deeding the whole farm to him was that she was going to apply for welfare payments; that she “wanted to get on welfare,” but she did not want any deed to show up on the public records which might affect her (eligibility to receive) welfare; that Lewis did not record the deed at the time because Emma told him not to record it until after her death. On rebuttal Lewis gave a different reason: that when Emma gave him the deed she said, “This is to repay you from the past.” The suggestion that the deed being on record might affect Emma’s application for welfare (an application to be made at a future time) is baffling in view of Plaintiffs’ Exhibit 10, which is a copy of Emma’s old age assistance application, dated June 18, 1957, almost ten years prior to the deed of February 7, 1967.

Omer Barton, the notary public who acknowledged the two deeds dated February 7,1967, testified as follows: Emma came to him, desiring to make the place over to her son because she wanted to get on relief, and could not do it if she owned the farm. Barton drew the deed, using an abstract of title furnished by Emma, from which he obtained the legal description. When first questioned on cross-examination witness Barton did not recall having acknowledged the other deed (for ⅛⅜ acres), which the record shows to have been executed by Emma and acknowledged by Barton that same day. When the deed for 4½ acres was presented to him on the witness stand Barton recognized his signature and acknowledged the genuineness of the deed. He testified that he notarized both deeds on February 7, 1967; that the only way he could have made the deed to the 414 acres would have been for Emma to have brought him the legal description of the 4V2-acre tract. Inconsistently, he later testified that he did not know where that description came from. He did not know or remember the purpose of having two deeds to the same person made the same day covering the same property, one for the 4⅛ acres, the other for the whole farm. He testified that it could have been possible that a mistake was made on one and that the other was made to straighten out the mistake, and cover only the 4½ acres. After an overnight adjournment, and on redirect examination, referring to his previous testimony that a mistake could have accounted for the two deeds, Barton testified that he was referring to a mistake as to the acreages —that he had not been referring to the possibility of a substitution of one deed for another by mistake. When pressed on recross-examination to say whether he made the second deed because of a mistake in the description in the first deed, Barton stated that he did not have a clear recollection of the two deeds or why there were two deeds instead of one; did not know which of the two deeds was written first; did not know whether one deed was made to correct the other.

From the time of the foreclosure sale in 1935 until his death in 1955, Ed and Emma lived on this farm. In March, 1955, following Ed’s death in January, 1955, Emma and her daughter Mary joined in a warranty deed conveying 2.25 acres of the farm to Homer Craig and wife. In June, 1956 Emma, and her daughter Mary and Mary’s husband executed a one-year option contract to St. Joseph Lead Company (never exercised). In July, 1959 Emma, joined by Lewis and wife and Mary’s heirs, executed a warranty deed to Kelly LaBreyere conveying surface rights to two acres of the farm. In March, 1961 Emma executed a 5-year lease of the farm to Lewis. In September, 1967 Emma executed another 5-year lease of the whole farm to Lewis, notwithstanding according to Lewis he was already the fee simple owner of the farm. In November, 1972 Emma granted Robert Peters a road easement across the south side of the farm.

Throughout this period and until her death March 1, 1974 Emma continued to live on the land, treating the farm as her own; making statements to “everybody she knew practically, it was hers”; that “This is my farm”; saying to all her friends, “I am the boss of the farm,” claiming she owned the farm, and “always [telling] everybody it was her farm.”

Henry Buff testified that on three separate occasions, in the fall of 1967, in 1969 and again in 1973, Emma told him that Lewis had threatened her; threatened to call the sheriff and have her thrown “off her own ground”; that Lewis “don’t own a foot of ground up there, not even the ground that his trailer sits on.”

Brenda LaPlant testified that on one occasion in 1967 she encountered Emma, who was crying and upset; that Emma told her that Lewis had threatened her and was going to try to kick her off her land; that she owned the land, and he owned nothing; that at Thanksgiving Time in 1969 Emma made the statement that she had already given Lewis his part, referring by name to “the Leonard part” (not a part of the land in suit), and that when she died her remaining property would go to her three grandchildren. She repeated this statement in January, 1974.

W. Sidney Ruddy testified that “around 1970” Lewis showed him the deed to the farm; that one day, while Ruddy was taking Emma to the doctor, Emma mentioned the disposal of her property in the future. Ruddy mentioned the deed from Emma to Lewis and stated that he had read it. Emma responded that “there was no such deed,” and if there was such a deed she had signed “that she was led to believe in the office of Omer Barton that it was for a small piece of ground across the highway from her home.” This conversation occurred six months to a year before Emma died.

On the issue of the validity of the deed to the whole farm the circuit court made the following findings of fact:

“2(cc) That the deed from Emma Curlee to Adrian Braddy dated February 7, 1967 and recorded at book 597 page 364 was made as the result of a scrivener mistake and was not intended to be executed or delivered to Defendant and Emma Curlee was not aware of such deed.”

The court made the following conclusions of law with respect to the validity of the deeds:

“That the deed dated February 7, 1967, and recorded March 11, 1974, is void and a nullity and that the deed of the same date recorded March 7,1967 conveyed only a life interest for the life of Emma Curlee to Defendants and that such interest expired March 1, 1974.”

The circuit court made no findings of fact with reference to the deed to the 4½ acres dated February 7, 1967, recorded in Book 468, page 261, of the Land Records of St. Francois County, but simply declared it void and a nullity. Appellants, however, did not perfect their appeal from this provision of the judgment by briefing any point with reference to the judgment annulling that deed, and therefore that part of the judgment voiding the deed to the 4V2 acre tract will stand.

There is substantial evidence in support of the court’s finding of fact 2(cc), that the deed to the whole farm, dated February 7, 1967, was made as a result of a scrivener mistake; that it was not intended to be executed or delivered to Lewis and that Emma was not aware of the deed.

It is a reasonable inference from testimony which this Court accepts that Emma went to see Omer Barton, the notary, on February 7,1967 to have a deed prepared to convey the 4V2-acre tract to her son Lewis pursuant to an agreement that she would sell it to him for $800; that she presented the notary with an abstract of title, from which he obtained a description of the whole farm; that he mistakenly inserted that description in the deed; that the mistake was realized and to correct the mistake the notary on the same day prepared a second deed containing the proper legal description of the 4V2-acre tract, which description was furnished to the notary by Emma; that the first deed (to the whole farm) was not delivered to Lewis, and by oversight or misadventure was not destroyed; that Lewis (who had access to his mother’s strongbox) came into the possession of the latter deed, and held it until after his mother’s death before filing it for record; that when Emma signed the first deed to the whole farm she mistakenly thought she was signing a deed to the 4½-aere tract, and in later years did not know that the first deed was outstanding in the hands of Lewis.

The following facts, which arouse strong suspicions about the genuineness of the purported deed to the whole farm, support this conclusion:

(1) that two deeds, both of which included the 4V2-acre tract, purportedly were executed to the same person on the same date;

(2) that the deed to the 4V2-acre tract was promptly recorded, but the deed to the whole farm was withheld from public record for 7 years after date of execution, throughout the balance of the lifetime of the grantor, and not recorded until after her death, she being the only other person in the world who knew and could testify whether she had intended to convey the whole farm to her son;

(3) that Lewis gave conflicting testimony to account for his mother deeding the farm to him;

(4) that on September 20, 1967 Emma signed a lease of the farm to Lewis, who signed as lessee notwithstanding his claim that he was at that time the fee simple owner;

(5)that Emma was not apprised of the existence of an outstanding deed of the whole farm to her son. This is evidenced by the conceded fact that at all times after Ed’s death and up until the time of her death Emma claimed she was owner of the farm; lived on the land and exercised the ordinary incidents of ownership, such as leasing it, selling off small parcels of the land, granting easements, options, etc. and made statements that Lewis had no interest in the farm; that when the existence of the deed was suggested to her she denied its existence, stating that if she signed it she had been misled into believing she was signing a document relating to a small piece of land “across the highway”; that she declared that Lewis had been taken care of by a previous conveyance of a 40-acre tract, and said what she had left would go to her grandchildren.

Lewis’ excuse for not promptly recording the deed raises grave doubts, for, if we accept his testimony, he and his mother conspired to defraud the government by concealing Emma’s ownership of the farm in order to make her eligible for welfare benefits to which she might not otherwise have been entitled, yet the record plainly shows that her application for old age assistance was made some ten years before the execution of the deed of February 7, 1967.

We conclude that Ed and Emma held title to the land conveyed by the sheriff’s deed as tenants by the entireties. Upon Ed’s death Emma, as survivor, succeeded to the entire fee simple title. The warranty deed from Emma to Lewis, dated February 7, 1967, recorded at Book 597, Page 364 of the Land Records of St. Francois County, is null and void and of no force and effect, and is to be expunged from the land records.

Emma died testate March 1,1974, leaving as her heirs at law George R. McFarland, Donald R. McFarland and Mary Belle McFarland, children of Mary McFarland, deceased, only child of Ed and Emma, and Lewis A. Braddy, son of Emma by a previous marriage. Emma’s last will and testament, dated August 19, 1959, admitted to probate and in the course of administration at trial time, devised and bequeathed one-half of her property, real, personal and mixed, to the above-named children of Mary McFarland, deceased, share and share alike, and devised and bequeathed the remainder of her property, real, personal and mixed, to her son Lewis.

The judgment of April 17, 1976 is reversed and the cause is remanded with directions to enter a new judgment, as of April 17, 1976, as follows:

On Count I of the Petition

The judgment finding for plaintiffs, giving them the right to immediate possession of the whole farm to the exclusion of the defendants, is reversed, and on remand judgment shall be entered for defendants on Count I, both on the question of right to exclusive possession, and on the issues of damages and rents and profits. Under § 442.450, RSMO 1969 the devisees became tenants in common, each entitled to the use and possession of the common property. Mack v. Mack, 286 S.W.2d 385 (Mo.App.1956). “One tenant in common who occupies all or more than his proportionate share of the common premises is not liable to his cotenant because of such occupation, alone, for rent, or for the use and occupation of the same, * * * unless his co-tenant has ousted him, or has been guilty of acts amounting to a total denial of his rights as such cotenant. * * * ” Metzger v. Metzger, 153 S.W.2d 118, 122-123 (Mo.App.1941). There is no evidence in this record of such ouster or acts on Lewis’ part. Unlawful withholding of. possession and loss of rents and profits are alleged in Count I of the Petition but the record of the trial on the issue of damages, rents and profits before the jury has not been preserved and presented to us on this appeal, and therefore there is no evidential basis upon which we can make a determination on the question of ouster vel non.

On Count II of the Petition

The judgment on Count II, quieting title in plaintiffs, is reversed, and on remand judgment shall be entered quieting title in plaintiffs McFarland to an undivided one-half interest as tenants in common, share and share alike, and an undivided one-half interest in Lewis A. Braddy, as tenant in common.

On Count III of the Petition

The judgment on Count III, declaring the deeds dated February 7,1967 null and void, and ordering their expungement from the land records, is affirmed.

On Count I of the Counterclaim

The judgment finding against defendants on their claim of a constructive trust and title in Emma as survivor of a tenancy by the entireties is reversed.

On Count II of the Counterclaim

The judgment finding against defendants on their claim of title by adverse possession is affirmed.

On Count III of the Counterclaim

The judgment finding against defendants on their claim for improvements on the land is affirmed.

The costs are assessed equally against appellants and respondents.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . Appellants cite cases both on the theory of constructive trust, Coffey v. Coffey, 485 S.W.2d 167 (Mo.App.1972); Schneider v. Schneider, 347 Mo. 102, 146 S.W.2d 584 (Mo. 1940); Schroer v. Schroer, 248 S.W.2d 617 (Mo.1952); Feltz v. Pavlik, 257 S.W.2d 214 (Mo.App.1953); McHenry v. Brown, 388 S.W.2d 797 (Mo.1965); Happel v. Grogan, 514 S.W.2d 178 (Mo.App.1974); March v. Gerstenschlager, 436 S.W.2d 6 (Mo.1969); Swon v. Huddleston, 282 S.W.2d 18 (Mo.1955); Collins v. Shive, 261 S.W.2d 58 (Mo. 1953), and resulting trust, Keefe v. Keefe, 435 S.W.2d 313 (Mo.1968); Frost v. Frost, 200 Mo. 474, 98 S.W. 527 (Mo.1906); Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152 (Mo. banc 1956); James v. James, 248 S.W.2d 623 (Mo.1952); Meyer v. Meyer, 285 S.W.2d 694 (Mo.1956); Clay v. Walker, 6 S.W.2d 961 (Mo.App.1928); Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377 (Mo. banc 1956); Jankowski v. Delfert, 356 Mo. 184, 201 S.W.2d 331 (Mo.1947), in support of their position that the facts give rise to an implied trust.

      . “442.450. Conveyance to more than one — effect. Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.”


author: STEWART, Judge.

text:
    Gary HENDERSON, Respondent, v. Milton S. YUST, Appellant.
    No. 36891.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Application to Transfer Denied Feb. 8, 1978.
    W. W. Sleater, Clayton, for appellant.
    Richard P. Nangle, St. Louis, for respondent.
   STEWART, Judge.

This is an action for breach of a contract of bailment. It was originally filed in the magistrate court, where it was tried before a jury, at the demand of defendant. The trial resulted in judgment for plaintiff in the sum of $750.00. Defendant appealed to the circuit court, where it was again tried before a jury resulting in a verdict and judgment for plaintiff in the sum of $900.00. We affirm.

Viewed in the light most favorable to plaintiff, the jury could have found that plaintiff was employed by Carlson-Oldsmobile Company, a new car dealer. Milton Yust did business with Carlson, purchasing used cars at wholesale. Plaintiff became acquainted with defendant by reason of seeing him at Carlson’s. Plaintiff purchased a new car annually. In March of 1971, plaintiff purchased a 1971 Oldsmobile Delta 88 Royal Convertible, which he financed through a bank. In August of 1971, plaintiff decided to sell the car. He knew that defendant had taken salesmen’s cars to sell and spoke to him about selling the convertible. On August 20, 1971, plaintiff turned the car over to defendant for sale. Defendant’s son picked up the car. Defendant was to sell it for enough to pay off the note on the car and he was to retain any excess.

Defendant did not have anyone on his lot in north St. Louis on the weekend and it was agreed that defendant would drive the car to his home over the weekend. Defendant was authorized to demonstrate the car to qualified prospects.

At the time the car was turned over to defendant, it had been driven 6,200 miles and was in perfect condition.

In the early part of September, defendant advised plaintiff that the car was sold, and asked for help in financing the ear. Plaintiff arranged for the necessary financing. In mid-October, defendant called plaintiff and informed him that “the [convertible] top was messed up.” The car was brought to Carlson’s lot on October 19. The top had been torn, the top framing was bent in from both sides, and the ty-down locks were broken. The odometer read 9,852 miles and as plaintiff described the ear, it was “a mess.” The car remained on the lot for about two weeks. It was removed by defendant who had some work done to the top. On November 21, Mr. Yust left the car on the Carlson lot and gave the keys to the manager for delivery to plaintiff.

Defendant’s brief contains twelve principal points relied on with twenty sub-points.

Defendant’s primary attack is leveled at plaintiff’s verdict directing instruction which reads:

“Your verdict must be for plaintiff if you believe:
First, plaintiff was the owner of the Oldsmobile automobile mentioned in evidence, and
Second, plaintiff delivered the Oldsmobile automobile to the defendant for sale in ah undamaged condition, and
Third, defendant accepted the Oldsmobile automobile for sale, and
Fourth, defendant returned the Oldsmobile automobile to the plaintiff in a damaged condition, and'
Fifth, as a direct result thereof plaintiff sustained damage,
Unless you believe plaintiff is not entitled to recover by reason of Instruction No. 3 .”

Defendant contends that there was no evidence to warrant a finding that the transaction between plaintiff and defendant was a bailment; that the instruction did not properly state the applicable law because it did not require a finding of negligence on the part of defendant; and because the “evidence showed that the defendant had not been negligent and that plaintiff had agreed to and ratified the delivery of the car to a prospective purchaser . . . ”

The facts set out above clearly demonstrate that the transaction between plaintiff and defendant was one of bailment for sale. Scholman v. Joplin Automobile Auction Company, 439 S.W.2d 215, 217[1] (Mo.App.1969), precisely rules the point.

In this case, as distinguished from Scholman, 439 S.W.2d 215, and other cases relied on by defendant, plaintiff’s action was for breach of the contract of bailment. Plaintiff did not plead want of due care or of negligence on the part of defendant. The burden was upon defendant to excuse or explain the return of the convertible in a damaged condition. Nuell v. Forty-North Corporation, 358 S.W.2d 70, 75[6, 7] (Mo.App.1962). See also the scholarly dissertation in Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553, 559[1, 2, 3] (Mo.App.1976). It is apparent that the attacks leveled at the verdict directing instruction are without merit.

Defendant complains that the court erred in refusing to submit to the jury the issue of whether plaintiff’s contract was with defendant as an individual or with Yust, Inc., a Corporation. There was oral testimony by defendant that the plaintiff dealt with Yust, Inc., a Corporation. Defendant offered no instruction on this issue. The issue is deemed abandoned. Superior Ice and Coal Co. v. Belger Cartage Service, Inc., 337 S.W.2d 897, 910 (Mo.1960).

Defendant contends that the court made an erroneous alteration to Instruction 3 offered by defendant. There was a conflict between plaintiff and defendant as to permission given defendant to operate the vehicle. Plaintiff contends that defendant advised that the car was sold and that the third party had the car upon that representation. Defendant contends that plaintiff consented that a prospective purchaser could have possession. Also at issue was the question of whether defendant was authorized to drive the car to his home every day or just on weekends.

Instruction 3 given by the court reads:

“Your verdict must be for the defendant, Milton S. Yust, if you believe:
First, plaintiff agreed to the delivery of the Oldsmobile automobile to a prospective purchaser and it was damaged while in the possession of the prospective purchaser, and (emphasis added)
Second, plaintiff authorized defendant to drive the Oldsmobile automobile home each day and the mileage incurred was reasonable.”

Defendant had submitted the two issues in the disjunctive. The court refused to give the instruction as offered and made the alteration substituting the word “and” for “or” between paragraph first and paragraph second. Defendant argues that the instruction as given was erroneous because defendant was entitled to a verdict if the jury believed either paragraph first or second. The defendant may not give a disjunctive submission unless each alternative theory of defense would completely exonerate the defendant. Commerford v. Kreitler, 462 S.W.2d 726, 735[10] (Mo.1971). It is apparent that a finding that “plaintiff authorized defendant to drive the Oldsmobile home each day and that the mileage defendant incurred was reasonable” would not exonerate defendant for the damage to the convertible top.

Defendant also complains of the failure of the court to give Instruction Number A, which was submitted by defendant. This instruction submitted four theories of defense in the disjunctive. The fourth theory of defense submitted in Instruction Number A, is essentially the same theory of defense as that contained in paragraph second of Instruction No. 3 discussed above. What we have said there rules this issue.

We have read the transcript and the brief of counsel and have carefully considered each of the other points. Some of these points have not been preserved for our review, others violate Rule 84.04(d), others are answered by the authorities cited in the first issue discussed in this opinion. As to the remaining points, we find no error of law. A discussion of these points would be of no precedential value. Rule 84.16(b).

Finding no prejudicial error the judgment of the trial court is affirmed.

McMILLIAN, P. J., and REINHARD, J., concur.


author: DONALD L. MASON, Special Judge.

text:
    Edward C. KREUTZ, Harold L. Studt and Frank A. Forst, Plaintiffs-Respondents, v. Ray J. WOLFF and Lester N. Jaffee, Defendants-Appellants.
    No. 37904.
    Missouri Court of Appeals, St. Louis District.
    Nov. 29, 1977.

      Donald J. Sher, St. Louis, for defendant-appellant Ray J. Wolff.
    Ben Boxerman, St. Louis, for defendant-appellant Lester N. Jaffee.
    Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Robert C. Jones, Clayton, for plaintiffs-r espondents.
   DONALD L. MASON, Special Judge.

This is an appeal by defendants-appellants Ray J. Wolff and Lester N. Jaffee from a judgment of the circuit court of St. Louis County, Missouri, sustaining plaintiffs-respondents’ motion for a directed verdict or in the alternative for a new trial and entering judgment for plaintiffs in the sum of $137,014.71, as claimed to be due on a promissory note. For reversal appellants argue that (1) the trial court erred in sustaining respondents’ motion for a directed verdict because there was substantial evidence to support the jury verdict; and (2) the trial court erred in alternatively granting respondents’ motion for a new trial because the uncontradicted evidence of lack of consideration and fraudulent misrepresentation entitled appellants to a directed verdict.

For the reasons discussed below, we reverse the judgment of the trial court sustaining respondents’ motion for a directed verdict and affirm the order granting a new trial.

The assertions in opposition to and in support of the post trial orders entered in this jury tried case requires a detailed recitation of the evidence.

In 1967 Roger Development Company, a corporation jointly owned by respondents Frank A. Forst, Harold L. Studt and Edward C. Kruetz, and of which corporation they were officers, purchased a 180 acre tract of land in St. Charles County, Missouri, as the site for a subdivision development. Roger Development Company filed a Declaration of Trust containing restrictions and naming respondents as the first trustees. One of the subdivision restrictions prohibited the construction on any lot any residence of less than 1,200 square feet first floor living area. The subdivision restrictions were subject to amendment with the approval of two-thirds of the record property owners voting at a meeting called by the owners of at least ten percent of the total area of the subdivision.

The initial development of Royal Oaks Subdivision involved only 27 acres at one end of the tract. The property was subdivided into more than 20 lots, each a minimum of one acre in size, and sold subject to the restrictions. The remainder of the property was platted into building lots of three to five acres in size, but not developed. In 1970 this undeveloped part, minus a small section sold to a school, was sold to Sixty-eight Twenty, Inc. Appellant Ray J. Wolff was a stockholder in Sixty-eight Twenty, Inc., and had made several loans to the corporation. Appellant Jaffee was an employee of the corporation. Monroe Wolff, not a party to this action due to lack of service of process, was president of the corporation.

The sale price of the property was $250,-000. One thousand dollars was paid as earnest money and $29,000 was paid at closing. The balance of $220,000 was evidenced by a promissory note secured by a deed of trust on the property sold. The sales contract specified that the transaction was contingent upon Sixty-eight Twenty’s ability to change the zoning to permit smaller lots and secure FHA and VA approval for financing. In the event that any of the contingencies could not be secured by Sixty-eight Twenty, the contract was to be null and void and the earnest money returned.

Sixty-eight Twenty succeeded in changing the zoning to permit smaller lots (7,500 square feet), but FHA refused approval of the proposed modular home development unless the subdivision restrictions were removed. As submitted, all the floor plans for the proposed modular homes specified first floor living, areas of less than 1200 square feet. After hearing of the reason for FHA’s refusal to approve the proposed development for financing, respondent Studt assured appellants that he would “take care of the restrictions.” The manner in which respondents amended the subdivision restrictions is one of appellants’ defenses and the basis of their counterclaims.

Respondents Studt and Forst solicited some of the Royal Oaks homeowners to agree to an amendment of the restrictions, and to this, end circulated a document entitled “Amendment to Restrictive Agreement” in the subdivision. In order to induce the homeowners to sign the agreement respondent Forst, or Mrs. Lois Warfield, a friend of Forst’s, and at that time a homeowner in the subdivision, represented that the sole purpose of the proposed amendment was to separate the two groups of homeowners for self-government so that the original group of homeowners would not be out-voted in such matters as the selection of future trustees, that the minimum floor area restrictions of 1200 square feet would continue to apply to any further development of the remainder of the tract, that any homes constructed would be comparable to theirs, and that any lots in the remainder of the tract would be at least one acre in size. The amendment was recorded, but was not presented to nor approved at a meeting of the homeowners as required in the Declaration of Trust nor as declared in the amendment. As a Notary Public, respondent Forst attested the signatures of the various homeowners.

Respondent Studt then informed appellant Jaffee that the restrictions “had been lifted,” and the amendment recorded, which appellant Jaffee verified through the St. Paul Title Company. In December of 1970 appellants closed the deal acting on the belief that the restrictions had been legally changed. Appellants (and Sixty-eight Twenty, Inc.) executed, in favor of Roger Development Company, their promissory note for the balance of the purchase price.

Thereafter, preliminary work was done at the development site, including grading, platting the streets, pouring concrete foundations and erecting display modular homes. Appellants also arranged for the hiring of a sales agent and the printing of sales brochures and advertising.

The homeowners in Royal Oaks, alerted by the construction and promotional publicity, bitterly opposed the proposed development of 450 modular homes on small one-fifth acre lots. Local protest groups formed, held meetings and even hired an attorney. A lawsuit was filed in June of 1971 alleging a conspiracy between Roger Development Company and Sixty-eight Twenty, Inc., to change the zoning and subdivision restrictions by means of fraudulent representations. This lawsuit was subsequently dismissed for failure to prosecute. Some homeowners posted signs along the road leading to the development describing the overcrowded conditions of the local schools, the inadequacy of the sewer system and that a lawsuit had been filed to stop the development. The proposed development was also the subject of several local newspaper articles. As a consequence of this neighborhood opposition, local officials refused to grant any additional building permits and weight limits were posted on an old bridge over which trucks hauling concrete and modular homes had to pass. This effectively prevented further delivery of materials and halted construction. The display homes were not sold and were eventually vandalized.

Respondents acquired the promissory note when Roger Development Company was dissolved and the company’s assets were distributed to its stockholders (respondents) in June of 1971. Sixty-eight Twenty, Inc. had made one principal payment of $10,000, reducing the principal owed to $210,000, and one partial interest payment of $2,500. No other payments were made. Respondents foreclosed on the Deed of Trust in August of 1975 and purchased the property at the foreclosure sale for $140,-000. This amount was credited against the principal balance on the promissory note, leaving a deficiency of $70,000, for which sum, plus interest and foreclosure expenses, this action was brought. Respondents calculated accrued interest to amount to $66,-351.31 and foreclosure expenses in the amount of $663.40, a total deficiency in the sum of $137,014.71.

Appellants pleaded as affirmative defenses lack of consideration and fraud in the inducement and counterclaimed for damages sustained as a result of the fraudulent manner in which respondents amended the subdivision restrictions. The affirmative defense of lack of consideration was not submitted to the jury, by appellants’ choice. A jury verdict was returned in favor of appellants on both the deficiency claim and counterclaims. The trial court sustained respondents’ post-trial motion for a directed verdict or in the alternative for a new trial, set aside the jury verdicts, entered judgment in favor of respondents in the sum of $137,014.71 and in the alternative granted respondents a new trial on the ground that the verdict was against the weight of the evidence.

A directed verdict represents a drastic action and should be granted only where “reasonable men in an honest and impartial exercise in their duty could not differ on a correct disposition of the case. . ” Stogsdill v. General Am. Life Ins. Co., 541 S.W.2d 696, 698 (Mo.App.1976). In determining whether the trial court erred in sustaining respondents’ motion for a directed verdict appellants are entitled to have all of the evidence “reviewed in a light most favorable to (their) theory of the case with the (respondents’) evidence being disregarded except insofar as it aids the (appellants’) case, and that the (appellants are) to be afforded the benefit of any and all reasonable inferences to be drawn from the evidence which is not in conflict with (their) theory of the case. . . . ” Russell v. Russell, 540 S.W.2d 626, 631 (Mo.App.1976); Wardenburg v. White, 518 S.W.2d 152, 154 (Mo.App.1975). It is also axiomatic that lack of consideration and fraud in the inducement are affirmative defenses and appellants had the burden of pleading and proof, Rule 55.08, V.A.M.R.; Vandivort v. Dodds Truck Line, Inc., 444 S.W.2d 229, 230-31 (Mo.App.1970) (lack of consideration); Shephard v. Hunter, 508 S.W.2d 234 (Mo.App.1974) (fraud).

Respondents’ (plaintiffs’) action is on a promissory note. Therefore, we must initially examine respondents’ status as holders of the promissory note because lack of consideration and fraud in the inducement are not good defenses against a holder in due course, §§ 400.3-305, 400.3-408, RSMo 1969. However, once a defense other than lack of consideration is raised, respondents had the burden of proof that they or Roger Development Company were, in all respects, holders in due course, § 400.3-307(3), RSMo 1969. Respondents did not present any evidence on their status as holders in due course. Furthermore, because respondents allegedly participated in the fraudulent representations it is unlikely that respondents, in fact, purchased the note in “good faith” and “without notice of any defense ... on the part of any person,” which are prerequisites to the status of holder in due course, §§ 400.3-202, 400.3-304, 400.1-201(25), RSMo 1969; Mid-Continent Nat. Bank v. Bank of Independence, 523 S.W.2d 569, 573 (Mo.App.1975). A holder who is not a holder in due course has much narrower rights and takes the instrument subject to all defenses of any party which would be available in an action on a simple contract, specifically including the defenses of want or failure of consideration, §§ 400.3-306(b) and (c), 400.3-408, RSMo 1969.

Where the execution, delivery and nonpayment of a promissory note have been admitted and- the note offered into evidence, a prima facie case has been made in favor of the holders of the note, and in the absence of any substantial evidence of any affirmative defenses the trial court should direct a verdict in favor of the holders, Latta v. Robinson Erection Co., 363 Mo. 47, 248 S.W.2d 569, 577-78 (Mo. banc 1952); Vandivort v. Dodds Truck Line, Inc., supra. Appellants admitted execution of the promissory note at issue and acknowledged their signatures below the caption, “The following makers in their individual capacity.” Appellants argue that they signed the note gratuitously and without consideration, that they personally received no benefit as a result and that Roger Development Company suffered no additional detriment, being already obligated by the sale contract to deliver a general warranty deed to Sixtyeight Twenty, Inc., citing Glassbrenner v. Morgan, 296 S.W. 201 (Mo.App.1927).

In German-American Bank v. Camery, 189 Mo.App. 542, 176 S.W. 1076 (1915) where the evidence did not conclusively show that the defendant in an action on a promissory note had received consideration, the court held that the question of the defense of lack of consideration was sufficient to go to the jury. In Shawhan v. Shawhan Distillery Co., 195 Mo.App. 445, 197 S.W. 369 (1916), cert. quashed, State ex rel. Shawhan v. Ellison, 273 Mo. 218, 200 S.W. 1042 (1918), despite the apparent strength of the defendant’s proof of lack of consideration in an action on a promissory note, the court found that the defense had not been indisputably established and therefore presented issues of fact for the jury. See also Lambert v. Gutman, 156 S.W.2d 32 (Mo.App.1941); Federal Chemical Co. v. Hitt, 155 S.W.2d 899 (Mo.App.1941); Mut. Bank & Trust Co. v. Stout, 231 S.W.2d 274 (Mo.App.1950).

In this case the note imported consideration, § 431.020, V.A.M.S. 1949, Sha-whan v. Shawhan Distillery Company, supra, and the sales contract discloses the appellants’ signatures as makers were not required. These documents, both received in evidence, created a dispute as to the issue of consideration which was not clarified or resolved by the oral testimony. Contrary to Glassbrenner v. Morgan, supra, neither party exclusively resolved this dispute and, therefore, the issue was for the jury. The trial court erred in sustaining respondents’ after-trial motion for a directed verdict and entering judgment for respondents.

In support of the trial court’s action in setting aside appellants’ verdict on the petition and on the counterclaim the respondents categorically assert that appellants failed to plea the materiality of the representation, the appellants’ right to rely on the representation, the appellants’ ignorance of the falsity of the representation, and question whether appellants pleaded respondents’ intent that the representation be acted upon, and appellants’ reliance on that representation.

In Latta v. Robinson Erection Company, supra, it is stated:

“The essential elements necessary to constitute actionable fraud are the same, whether it is used by way of defense or as a cause of action. 37 C.J.S. Fraud § 4, p. 219. These essential elements are ‘that a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury and damage.’ 23 Am.Jur. 773, Fraud and Deceit, Sec. 20. And see Dolan v. Rabenberg, 360 Mo. 858, 231 S.W.2d 150, 154; Powers v. Shore, Mo. Sup., 248 S.W.2d 1, not yet reported in the State Reports; Lowther v. Hays, Mo. Sup., 225 S.W.2d 708, 713. . . . ” (loc.cit. at 576)

See also Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483 (Mo. banc 1966); Bayer v. American Mut. Cas. Co., 359 S.W.2d 748 (Mo.1962); Yeager v. Wittels, 517 S.W.2d 457 (Mo.App.1974). Each of these essential elements must also be pleaded, although no express form of words is necessary to set out the various elements which constitute fraud if the substantive facts are alleged, Weitzman v. Weitzman, 156 S.W.2d 906 (Mo.1942).

“ . Ignoring the imperfections and uncertainties of the (answer and counterclaim) and according its allegations with every reasonable and fair intendment, . . . ” Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 29 (Mo.1946) cited in Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572, 574 (1951), we believe the appellants did plead, or prove without objection, each element of fraud. Pleaded were the representations to both appellants and the homeowners, and the materiality of those representations, that the representations were false and known to be false, that the representations were made with the intent to deceive, that appellants were deceived, that appellants relied on the representations made to them, to their damage. Although appellants’ pleadings did not allege their right to rely on respondents’ representation, an examination of the transcript discloses proof of that essential element which was received in evidence without objection. In this circumstance the petition is treated as having been amended to conform with the evidence, Galemore Motor Co., Inc. v. State Farm Mut. Auto Ins. Co., 513 S.W.2d 161 (Mo.App.1974); Rule 55.33(b), V.A.M.R.

Respondents also aver that appellants pleaded only the representations made to the homeowners which cannot be the foundation for their affirmative defense and counterclaim. As mentioned, respondents did plead the representation, as made to the respondents, that the amendment to the restrictions had been effected and also generally pleaded the representations made to the homeowners so as to obtain their signatures on the amendment. Although our Supreme Court held in Bedell v. Daugherty, supra, that a cause of action for fraud could be predicated on false representations made to a plaintiff and a third party, we do not believe that respondents’ representations to the third party homeowners alone are the basis of appellants’ defense and cause of action on the counterclaim. In reality, the representations made to the homeowners, to secure their signatures on the amendment, was only the vehicle used by respondents to achieve the fraud perpetrated on the appellants, i. e., the improper amendment to the restrictions.

Respondents also assert the appellants did not prove each of the essential elements of fraud and, therefore, the trial court did not err in setting aside appellants’ (defendants’) verdict on the petition and on the counterclaim. Without question, the existence of fraud is never presumed and must be proven in each of its essential elements by the party asserting the fraud whether as the basis of a claim, defense or counterclaim, Gibson v. Smith, 422 S.W.2d 321 (Mo.1968); Yerington v. Riss, 374 S.W.2d 52 (Mo.1964); Williams v. Miller Pontiac Co., 409 S.W.2d 275 (Mo.App.1966). Failure to prove any one of the essential elements is fatal to recovery, Schnuck v. Kriegshauser, 371 S.W.2d 242, 248 (Mo.1963); Strothcamp v. Sandy Ford Ranch, Inc., 440 S.W.2d 193 (Mo.App.1969). In determining whether appellants have made a submissible case and, therefore, whether the trial court erred in sustaining respondents’ motion for a directed verdict, the evidence presented must be viewed in the light most favorable to appellants giving them the benefit of all reasonable inferences to be drawn therefrom, Ackmann v. Keeney-Toelle Real Estate Co., supra, l. c. 488; Wilson v. Murch, 354 S.W.2d 332, 337 (Mo.App.1962).

Appellants’ evidence showed that respondents told appellants that the restrictions had been changed. This statement was material and was known to be untrue as the signatures of the homeowners had been obtained by false representations and the amendment had not been changed in accordance with the terms of the subdivision restrictions. Respondents clearly told appellants of the amendment with the intent that appellants rely upon the statement. Appellants did so rely in a manner reasonably contemplated and consummated the transaction believing the change had been legitimately made. The only purpose in representing that the restrictions had been amended was to satisfy the sale agreement condition of Sixty-eight Twenty, Inc., obtaining FHA and VA financing, Strothcamp v. Sandy Ford Ranch, Inc., supra, l. c. 196.

Appellants did verify the change through a title company, but only to the extent of verifying the recording of the amendment, not the legitimacy of that amendment. The fraudulent nature of the amendment became apparent later. In general, where a party makes his own independent investigation, he will be presumed to have been guided by what he learned and the conclusions he reached; and he may not then say that he relied on the misrepresentations of another, Dolgin v. Potter Elec. Signal Co., 536 S.W.2d 61 (Mo.App.1976); Consumers Co-op Ass’n v. McMahan, 393 S.W.2d 552 (Mo.1965); Bayer v. American Mut. Cas. Co., 359 S.W.2d 748 (Mo.1962). This rule has been qualified where a distinct and specific representation has been made to be acted upon or for the purpose of inducing action and has induced action, Tietjens v. General Motors Corp., 418 S.W.2d 75 (Mo.1967); Universal C.I.T. Credit Corp. v. Tatro, 416 S.W.2d 696 (Mo.App.1967). In Tatro the court held that the borrower’s distinct and positive representation that the purported signatures were those of his wife established reliance when the signatures were a condition of the loan despite the alleged negligence of the loan company in failing to compare account signature cards.

These facts and circumstances are not as “consistent with honesty and good faith as with fraud, . . . ” Schnuck v. Kriegshauser, supra, from Powers v. Shore, 248 S.W.2d 1, 6 (Mo. banc 1952); Yerington v. Riss, supra. Appellants presented substantial evidence from which the jury could have found each of the essential elements of fraud. The evidence adduced presented a jury issue on both this affirmative defense and the counterclaim, and the court erred in directing a verdict against respondents.

Appellants urge that the trial court abused its discretion in granting respondents’ alternative motion for a new trial on the ground that the verdict was against the weight of the evidence as appellants were entitled to a directed verdict on the petition and counterclaim. Our earlier comments belie this assertion. The trial court has broad discretionary power to grant one new trial on the ground that the verdict is against the weight of the evidence, Rule 78.01, V.A.M.R.; State ex rel. State Highway Comm’n v. Klipsch, 414 S.W.2d 783 (Mo.1967); Liberty Loan Asso. of Antioch v. Brown, 493 S.W.2d 664 (Mo.App.1973). Such an order is presumptively correct and reviewing courts are liberal in sustaining an order granting a new trial. Phillips v. Phillips, 443 S.W.2d 144 (Mo.1969); Land Clearance for Redevelopment Authority v. Joplin Union Depot Co., 429 S.W.2d 806 (Mo.App.1968). An order granting a new trial on the ground that the verdict was against the weight of the evidence is arbitrary and an abuse of discretion when the benefitting party fails to make a submissible case, Friedman v. Brandes, 439 S.W.2d 490 (Mo.1969); Overbey v. Fodde, 420 S.W.2d 510 (Mo.1967); Williams v. Cass, 372 S.W.2d 156 (Mo.App.1963). Where the trial court sets aside the verdict and judgment and grants a new trial on the ground that the verdict was against the weight of the evidence and there is substantial evidence to support a verdict for the benefitting party, the order of the trial court cannot be held to be an abuse of discretion, Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104 (Mo.1973); Cragin v. Lobbey, 537 S.W.2d 193 (Mo.App.1976); Williams v. Cass, supra. Respondents brought this action for a deficiency owed to them on a promissory note. The promissory note was admitted into evidence; appellants did not deny execution or delivery of the note or that the note was unpaid. This was sufficient to make a sub-missible case for respondents, Sloan v. Paris, 541 S.W.2d 316, 320 (Mo.App.1976) (post-UCC case); Vandivort v. Dodds Truck Line, Inc., supra (pre-UCC case); Fitzgibbon Discount Corp. v. Hatchett, 427 S.W.2d 786 (Mo.App.1968) (pre-UCC case).

Respondents also assert in support of the trial court’s order granting a new trial that certain errors had been made in the instructions given to the jury. It is unnecessary, however, to determine whether the instructions were erroneous and justified granting a new trial, Jefferson County Bank & Trust Co. v. Dennis, 523 S.W.2d 165 (Mo.App.1975), in view of our conclusion that the trial court did not abuse its discretion in granting a new trial on the ground that the verdict was against the weight of the evidence. If any ground in a motion for a new trial sustained by the trial court is well taken, the trial court’s action in granting the motion is to be affirmed, Bertram v. Wunning, 417 S.W.2d 120 (Mo.App.1964); see also Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330 (Mo.App.1976); Douglass v. Missouri Cafeteria, Inc., 532 S.W.2d 811 (Mo.App.1975). On retrial appellants will have the opportunity to examine the sufficiency and correctness of their verdict-directing instructions.

Our disposition of this case makes it unnecessary to comment on, or rule on, the remaining assertions of the parties.

Accordingly, judgment is reversed and cause remanded for new trial.

SIMEONE, C. J., and STEWART, J., concur.

DOWD, J., not participating.


author: HOGAN, Judge.

text:
    Marilyn Sue HUNT, Kimberly Sue Hunt, Carl Lee Hunt and Lou Ann Hunt, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.
    No. 10144.
    Missouri Court of Appeals, Springfield District.
    Dec. 1, 1977.
    Motion for Rehearing or Transfer Denied Dec. 20, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      Charles E. Buchanan, Buehner & Bueh-ner, Joplin, for plaintiffs-appellants.
    Karl W. Blanchard, Jr., Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

Plaintiffs, who are the widow and surviving minor children of William R. Hunt, deceased, brought this action against the defendant insurer upon the uninsured motorist provisions of their policy. Upon defendant’s motion, the trial court has entered a summary judgment. Plaintiffs appeal.

Preliminarily, we may say that summary judgments have not been generally favored by our courts, Pagan v. City of Kennett, 427 S.W.2d 251, 252-253[1-4] (Mo.App.1968), but it is also clear that a defendant may employ a motion for summary judgment to assert any affirmative defense which entitles him to judgment as a matter of law. Thus, when the pleadings, affidavits, admissions and the responses thereto manifestly show that the plaintiffs’ action is barred by limitation, as is the case here, a summary judgment may be entered, even if some collateral, immaterial factual disputes exist. Johnson v. Grim-Smith Hospital, 453 F.2d 1253 (8th Cir. 1972); 10 C. Wright & A. Miller, Federal Practice and Procedure, § 2734 (1973). We have concluded that the motion for summary judgment was properly granted in this case.

Fairly stated, the record shows that William R. Hunt, plaintiffs’ decedent, was killed in a vehicular collision on April 30, 1971. Mr. Hunt was riding a 1970 Honda motorcycle; it is alleged that one James R. Gaw struck the motorcycle while he was negotiating a left turn. Mr. Hunt was killed, and it appears that Mr. Gaw was uninsured.

Defendant had issued an automobile insurance policy to William R. Hunt and plaintiff Marilyn S. Hunt extending various coverages upon a 1966 Ford from January 27,1971, to September 13,1971. The policy provided uninsured motorist coverage subject to an exclusion withholding such coverage in the event the insured was not operating an “owned” vehicle. The effect of the exclusion was to confine the uninsured motorist coverage to the vehicle or vehicles described in the declarations, and the Honda motorcycle was not so described.

On May 4, 1971, some person representing the plaintiffs contacted the defendant’s agent, the agent who had issued the policy, and requested that the named insureds be changed to Marilyn S. Hunt because William R. Hunt had been killed. We find no record indication that prior to the time this action was instituted, the plaintiffs ever made any formal or informal claim against the defendant under the uninsured motorist provisions of their policy. Plaintiffs in their brief say that plaintiff Marilyn Hunt sought the advice of an attorney soon after the accident; the attorney read the policy and advised plaintiff Marilyn that the exclusion noted was valid and the policy did not cover her husband’s death. Nothing further was done until July 24, 1974, when this action was filed seeking recovery upon the uninsured motorist provisions of the defendant’s policy. Defendant by its answer pleaded the bar of limitation as provided by § 537.100 RSMo (1969), V.A.M.S. The sole and dispositive issue presented is whether this action upon the insurance contract is barred by that statute, which provides that actions for wrongful death shall be commenced within two years. It stands admitted that plaintiffs’ cause of action accrued April 30,1971, and that no action of any sort was commenced for more than three years.

The plaintiffs vigorously argue that the trial court erred in granting the motion for summary judgment because the policy provision excluding unscheduled automobiles is void. It is now clear that such an exclusion impermissibly limits the public policy reflected in § 379.203, RSMo Supp. 1975. Otto v. Farmers Insurance Company, 558 S.W.2d 713 (Mo.App.1977). The merits of this appeal, however, do not turn upon the validity or invalidity of the policy provision excluding unscheduled vehicles from uninsured motorist coverage. The decisive question, as noted, is whether this action is barred by the two-year statute of limitation applicable to wrongful death cases or whether the ten-year statute generally applicable to contract actions, § 516.-110(1), RSMo (1969), V.A.M.S., controls.

The uninsured motorist provision of the policy in suit obligates the defendant “[T]o pay all sums which the insured or his legal representative shall be legally entitled to recover.” (our emphasis). As all parties recognize, the key and operative phrase is “legally entitled to recover.” The plaintiffs vigorously argue that the phrase means only that they must be able to establish fault on the part of the uninsured motorist and the absence of contributory negligence on the part of their decedent, as was held— or indicated — in Reese v. Preferred Risk Mutual Insurance Company, 457 S.W.2d 205, 208-209 (Mo.App.1970), and the authorities there cited. . In light of the court’s decision in Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1 (Mo.App.1975), we must hold otherwise. In Crenshaw, plaintiffs brought an action upon the uninsured motorist provisions of their automobile liability policy, seeking to recover for the wrongful death of their son Dale. The record demonstrated that the plaintiffs had not appropriated their cause of action within two years, as is the case here. The court held, 527 S.W.2d at 4:

. [The action] is governed by the 10-year statute of limitations [I]n order to prevail, . . . however, plaintiffs must establish that at the time this litigation against the insurer was commenced they were legally entitled to recover damages from [the uninsured motorist], In other words, as an essential element of plaintiffs’ cause of action in contract plaintiffs must be able to dem-ónstrate their right to recover for the wrongful death of their son. As a matter of law plaintiffs cannot make such a showing because at the time this action in contract was filed plaintiffs no longer had a cause of action against the third party tort-feasors . . . Compliance with the requirement that an action for wrongful death be commenced within two years is a necessary condition attached to the right to sue — not merely a statute of limitations in the ordinary sense . . . (emphasis added).

The legal niceties involved in the kind of litigation we have before us are ably and fully discussed in Crenshaw, supra, we cordially agree with the court’s ruling, and accordingly hold that the plaintiffs’ action was barred by limitation.

As a further argument, the plaintiffs contend that the defendant insurer is now estopped to rely upon the two-year statute of limitation because their failure to appropriate their cause of action within two years was induced by the defendant’s misrepresentation. It is, of course, familiar law that an insurer may in some circumstances estop itself from denying coverage upon a particular ground when it has acted to the insured’s prejudice, Schmidt v. National Auto. & Cas. Ins. Co., 207 F.2d 301 (8th Cir. 1953); Morris v. Reed, 510 S.W.2d 234, 240[9] (Mo.App.1974), but the doctrine of “insurance by estoppel” has no application here. The plaintiffs do not contend, nor could they, that any claim was ever made upon the policy until this action was filed. What the plaintiffs maintain is that the written policy provisions raise a sort of estoppel. Plaintiffs have cited no authority which supports this argument, and in the course of a reasonable independent research, we have found none. This point is without merit.

For the reasons indicated, the judgment is affirmed.

All concur.

      . We bear in mind that § 537.100 includes a tolling proviso, but in our opinion plaintiffs were required to plead any matter in avoidance of the statute of limitations; Rule 55.01 V.A. M.R. requires that “. . . [A] defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded.” See also Bennett v. Metropolis Pub.

        Co., 148 S.W.2d 109, 110[2] (Mo.App.1941), cert. quashed State ex rel. Bennett v. Hughes, et al., 348 Mo. 667, 155 S.W.2d 184 (banc 1941). Here the plaintiffs pleaded a species of estop-pel, but nowhere is there any affirmative allegation of any tolling of § 537.100.

      . § 379.203, RSMo Supp. 1975, our uninsured motorist statute, was enacted to compel the acceptance of uninsured motorist coverage on motor vehicles registered or principally garaged in this state. For a discussion of the statute see Cox, Uninsured Motorist Coverage, 34 Mo.L.Rev. 1, 3-4 (1969).


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Herbert BURNFIN, Defendant-Appellant.
    No. KCD 28630.
    Missouri Court of Appeals, Kansas City District.
    Dec. 5, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 27, 1977.
    Application to Transfer Denied Feb. 8, 1978.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals his conviction by a jury of first degree murder and a sentence of life imprisonment. The defendant’s assignments of error relate to the selection of the jury, the cross examination of a witness concerning the witness’s juvenile record, the refusal of a cautionary instruction with respect to the testimony of an accomplice, and the competency of a witness offered by the State. The conviction is affirmed.

The defendant does not question the sufficiency of the evidence to sustain his conviction, and a short statement of facts will suffice to place the case in a posture for decision. A witness testified that a man entered a pool room, asked for the victim, and told the victim that someone outside wanted to talk to him. When the victim left the pool room, the witness observed the victim go outside and fall wounded when shots were fired from a parked automobile. The weapon used in the shooting was recovered close to the scene and was traced to the defendant. The person who entered and requested the victim to go outside the pool hall testified that he had in fact done this and that the defendant had fired the shots which killed the victim.

Defendant claims constitutional violation in the Missouri jury selection system. Mo.Const. Art. I, § 22b, and § 494.031(2), RSMo 1969. Defendant’s claim is that the Missouri jury selection system is offensive to the United States Constitution because it systematically excludes women from jury service and denies defendant a jury representative of a cross-section of society. The issue as posed is determined by State v. Duren, 556 S.W.2d 11 (Mo.1977). The figures urged by the defendant are within the range of those urged by the defendant in Duren. This case and Duren were tried in the same county and the basic jury wheel was the same for both cases. No evidence appears which distinguishes this case from Duren. The claim must be denied.

Additionally, defendant claims that the Missouri jury selection system is unconstitutional under the test established in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Duren, supra, at 17-18 of 556 S.W.2d, sufficiently answers this contention.

Defendant urges that the trial court erred in not permitting defendant to cross examine the witness Edwin Kenney concerning his juvenile record. The witness in question had admitted a juvenile conviction for burglary prior to the objected to cross examination. Relying upon Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), defendant asserts that he was entitled to cross examine with respect to the juvenile record. Davis, supra, is distinguishable, for there the witness was, in fact, serving a probationary term at the time of trial and was the key witness for the prosecution. Here, the witness Kenney was only one of the witnesses who implicated the defendant and his involvement with the juvenile court was, in fact, shown. This case is clearly within the ambit of State v. Walters, 528 S.W.2d 790 (Mo.App.1975), which distinguishes between a juvenile conviction offered to show general impeachment which is not admissible and proof of some restraint or duress because of a pending juvenile matter.

Defendant argues that the court erred in refusing an accomplice instruction. The defendant offered two alternative accomplice instructions, both of which were cautionary instructions with respect to the testimony of an unindicted co-defendant. This case, subject to MAI-Cr, having been tried on January 21, 1976, is controlled by MAI-Cr 2.01, subparagraph 2, which specifically directs that no such instruction be given.

Defendant’s final claim of error is that the witness Riley was incompetent because he had been committed to a mental hospital in the State of Kansas. The trial judge held a hearing to determine the competency of the witness. A psychiatrist was called for the purpose of testifying as to the competency of the witness. The doctor was the sole witness. That psychiatrist testified that the witness was capable of recollecting the facts at issue, and there was nothing about his mental state which would affect his testimony at trial. A presumption exists that a witness confined in a mental institution is presumed to be incompetent. State v. Herring, 268 Mo. 514, 188 S.W. 169 (Banc 1916). However, it is rebuttable. The decision with respect to whether a party has met the burden of rebutting a presumption of incompetency is a question to be decided by the trial court, and its ruling will be reversed only where there has been a clear abuse of discretion. Earney v. Clay, 516 S.W.2d 59 (Mo.App.1974).

The judgment and conviction of the trial court is affirmed.