author: DOWD, Judge.

text:
    In the Matter of the ESTATE of August LaGARCE, Deceased. Bertha LaGARCE, Executrix of August LaGarce, Deceased, Plaintiff-Appellant, v. Leona MOULDON and William B. Quinn, Defendants-Respondents.
    No. 36129.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 25, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Martin Schiff, Jr., Webster Groves, for plaintiff-appellant.
    James E. Heckel, St. Louis, for defendants-respondents.
   DOWD, Judge.

This case is before us for the second time. It was originally initiated as a discovery of assets proceeding in the St. Louis Probate Court in February 1970. The issue was whether a $7000 savings certificate of the Tower Grove Savings and Loan Association was unlawfully withheld by the defendants.

The probate court sustained a motion for judgment on the pleadings filed by plaintiff-executrix and entered a judgment for plaintiff. Upon appeal to the circuit court a judgment was also entered on the pleadings in favor of plaintiff. Upon appeal to this court, we reversed the judgment and remanded the case with directions to enter a judgment in favor of defendants. The case was then transferred to the Missouri Supreme Court. In Re Estate of LaGarce, 487 S.W.2d 493 (Mo.banc 1972).

The Supreme Court reversed the judgment and remanded the cause to the trial court in a landmark case that revised the prevailing judicial construction of Missouri’s joint account statutes, Sections 362.470 and 369.150 RSMo. 1969. The Supreme Court concluded (at 501):

“While we have reached the same result (although on a different theory) as the court of appeals that the judgment should be reversed, we do not agree with the directions of that court to the trial court to enter judgment for defendants. There has been no trial of this case, and no evidence has been taken, since the judgment was on the pleadings. The plaintiff has not yet had an opportunity to offer evidence, if she has any, on the issue as to whether there was any fraud, undue influence, etc., relating to this transaction, which evidence we have stated would be appropriate. The judgment should therefore be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.”

On remand to the circuit court the plaintiff filed an amended petition which asked the trial court (1) to impose a constructive trust on the defendants or (2) to find the savings certificate had been transferred to the defendants in fraud of plaintiff’s marital rights. After a lengthy trial the court found for defendants on both counts. We reverse.

The relevant facts will be presented in some detail. An unfortunate series of events began with the separation of Bertha and August LaGarce on August 15, 1969, after twenty-five years of marriage. On that date the plaintiff, Bertha LaGarce, left their home after an argument wherein August told Bertha to leave or he would blow her head off her shoulders and that he had a gun. He also told her to get a divorce.

That same evening August LaGarce went to the bank with his friend John Zakibe. LaGarce removed from his safe deposit box four savings certificates he jointly owned with plaintiff. The four certificates had a total face value of $11,000, and had been issued by the Tower Grove Savings and Loan Association. The certificates had been issued in the years 1951, 1954, 1955 and 1965. August LaGarce told Zakibe he was removing the four certificates because he wanted to change the name on them. The four certificates were in the names of August LaGarce and Bertha LaGarce “as joint tenants with right of survivorship and not as tenants in common.”

While still at the bank that evening La-Garce closed out the checking and savings accounts totalling about $11,500 that had been in the joint names of August LaGarce and plaintiff. August LaGarce then put the money in checking and savings accounts that were in his name only. LaGarce told Zakibe he was transferring these accounts so that only he could touch those assets.

The next day, August 16, August La-Garce and Zakibe went to the Tower Grove Savings and Loan Association. With the help of Mrs. Mayer, an officer of the association, LaGarce surrendered and cashed in the four savings certificates he had removed from his safe deposit box the previous evening. At August LaGarce’s direction Mrs. Mayer used the proceeds to issue two new savings certificates. One certificate in the face amount of $4000 was issued to “August LaGarce or John Zakibe, Sr.” The second certificate in the face amount of $7000 was issued in August La-Garce’s name. On this occasion LaGarce mentioned his marital difficulties to Mrs. Mayer.

On August 21, 1969, August LaGarce again visited Mrs. Mayer at Tower Grove. With him were Mr. and Mrs. James Moul-don. LaGarce instructed Mrs. Mayer to add the names of Leona Mouldon and James Mouldon to the $7000 certificate. LaGarce told Mrs. Mayer he wanted to change the certificate so that if anything happened to him the certificate would belong to the Mouldons. After Mrs. Mayer changed the certificate LaGarce handed the certificate to James Mouldon. Mrs. Mayer then stated to August LaGarce: “The way that certificate is now made out, the person holding it can bring it in and cash it at anytime without the signature or consent of the others, and if anyone whose name is on it dies then it will belong to those that are living.” August LaGarce answered, “Yes, that is the way I want it, and I want them to have it and keep it and if I want it I can get it. I know they won’t cash it.” James Mouldon replied, “If he wants it back he can get it.” No consideration was paid by James or Leona Mouldon to have their names put on the certificate. During the August 21 transaction LaGarce again mentioned his marital difficulties to Mrs. Mayer.

During September 1969, LaGarce delivered many assets and important papers to the custody of his attorney, the defendant William Quinn. Quinn was retained by La-Garce from August 30 until September 30 to represent him during his marital troubles. Quinn testified he was given custody of the assets and papers “to make them inaccessible to his wife Bertha LaGarce, and for the purpose of investment and reinvestment, which was not accomplished.” Nor did Quinn ever transfer or assign any of LaGarce’s assets to a third party. In addition to several real estate and insurance papers, the assets entrusted to Quinn included: (1) $7000 in cash; (2) a cashier’s check for $1,942.19, endorsed by LaGarce, which represented the proceeds from redeeming U.S. Series E War Bonds; (3) the passbook of the savings account he had opened in his name on August 15 or 18 (the August 29 balance in the savings account passbook was $5,425.29); (4) a Tower Grove savings certificate in face amount of $4000, issued in 1964 to August LaGarce or John Zakibe, Sr., as joint tenants; (5) the Tower Grove savings certificate that was issued on August 16 to LaGarce and Zakibe as joint tenants, with face amount of $4000; (6) a South Side National Bank Certificate of Deposit dated October 25, 1965, in name of August LaGarce or Bertha LaGarce, with principal sum of $5000; and (7) South Side National Bank Stock Certificates, registered in the name of August LaGarce, valued at $6800. The assets transferred to Quinn thus totalled over $34,000.

During September the LaGarces and their attorneys discussed reconciliation. On September 30 the LaGarces signed a Reconciliation Agreement. One clause said La-Garce “will retransfer all assets into the same condition they were prior to the above recent separation of the parties and will do so within twenty-four hours after signing this agreement.” Plaintiff and LaGarce agreed “to retain all of their assets in their individual names alone, or in the alternative, with each other as joint owners. The only exception to this item will be a provision already made for a life long friend of First Party’s in the approximate sum of Four Thousand Dollars.” The LaGarces also agreed that each would maintain a will making the other party the executor and sole beneficiary of the entire estate. On October 3 August LaGarce executed a will that followed the mandate of the Reconciliation Agreement.

On October 3 plaintiff and August La-Garce went to Quinn’s office to pick up the papers and assets he was holding for La-Garce. Later that day LaGarce went with plaintiff and her attorney to see Mrs. Mayer at Tower Grove. Following August La-Garce’s instructions she cashed in the $4000 certificate that had been issued on August 16 to LaGarce and John Zakibe. A new certificate for $4000 was then issued in the joint names of August LaGarce and Bertha LaGarce. August LaGarce also wanted to surrender the $7000 certificate that he held jointly with the Mouldons, but Mrs. Mayer said this was impossible because he did not possess the certificate. After August La-Garce unsuccessfully tried to phone the Mouldons, he and plaintiff and and her attorney visited the bank, where August La-Garce’s checking and savings accounts were once again put in joint ownership with plaintiff.

The last six days of August LaGarce’s life witnessed a series of uncoordinated attempts to have the $7000 certificate returned to him. August LaGarce called Leona Mouldon and asked for the certificate. Mrs. Mouldon at first decided to return the certificate to LaGarce through John Zakibe. But later she decided to retain Quinn so she could leave the certificate with him. Her instructions to Quinn, when she gave him the certificate on October 7, were that he was to return the certificate at his office only to August LaGarce when two conditions were met: (1) August LaGarce signed a receipt for the certificate, (2) August La-Garce paid a sum of $150 for house cleaning, laundry, preparation of meals and miscellaneous services rendered August La-Garce by Mrs. Mouldon and her sister during plaintiff’s absence.

On October 8, Mrs. Mayer telephoned Leona Mouldon about the certificate. Mrs. Mayer told Leona Mouldon that August and his wife had been to the office for the purpose of having the certificate changed to the names of August and his wife, but since August did not have the certificate, the change could not be made. Mrs. Mayer asked Leona if she had the certificate and if it would be given to Mr. and Mrs. LaGarce. Leona told Mrs. Mayer that the certificate had been turned over to Quinn “to make it available to August LaGarce and only August LaGarce, and that if he wanted it he, and only he, could pick it up from William B. Quinn at his office.” Then Mrs. Mayer told Leona that August was very sick and that it was likely he would die and that he could not go to Quinn’s office. Leona then stated that if August was so sick he might die, then she would not turn over the certificate to anyone under any circumstances since it was August’s intention that “my husband and I have the certificate if he died and that I would instruct William B. Quinn not to give the certificate to anyone, including August LaGarce, until the outcome of his illness was known.” However, Leona was unable to reach Quinn until after August died which was October 9. Leona then instructed Quinn to return the certificate to her. This was done on October 15.

August LaGarce never came to pick up the certificate. He entered the hospital on October 8, 1969, and died the next day. Defendant Quinn, who has never claimed any ownership interest in the certificate, returned the certificate to the Mouldons after LaGarce’s death. By written agreement of the parties, Tower Grove is holding the certificate pending our decision.

On appellate review of cases tried without a jury we review the case upon both the law and the evidence as in suits of an equitable nature giving due regard to the opportunity of the trial court to have judged the credibility of witnesses. Rule 78.01(3). However, it is our duty to review all the evidence and reach our own conclusion as to the proper judgment to be entered. We are to enter such judgment as the trial court should have entered. Glaves v. Glaves, 523 S.W.2d 169, 172 (Mo.App.1975).

Plaintiff’s first contention is that the trial court erred in finding for defendants because the undisputed evidence showed the certificate’s ownership was transferred by Mr. LaGarce to the Mouldons in fraud of plaintiff’s marital rights.

The controlling statute here is § 474.150 RSMo. 1969 which states:

“1. Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse’s share, as in case of his election to take against the will.”

To determine whether LaGarce’s transfer of the certificate ownership was in fraud of plaintiff’s marital rights, we must find an intent and purpose on LaGarce’s part to defeat plaintiff. Edgar v. Fitzpatrick, 369 S.W.2d 592, 601[15] (Mo.App.1963), modified on other grounds, 377 S.W.2d 314 (Mo. banc 1964); Nelson v. Nelson, 512 S.W.2d 455, 459[2] (Mo.App.1974). In determining August LaGarce’s intent we may consider and weigh all of the facts and circumstances in evidence. Potter v. Winter, 280 S.W.2d 27, 36[7] (Mo.1955). The burden of proving LaGarce’s fraudulent intent falls on the plaintiff as surviving spouse when personal property is involved. Nelson v. Nelson, supra.

Missouri courts have found several factors that are probative as to a fraudulent intent to defeat the surviving spouse’s marital rights. The recent case of Nelson v. Nelson, supra, provides an excellent summary and explanation of these factors. Also see In re Estate of Lowe, 519 S.W.2d 373 (Mo.App.1975).

We have examined the complete record here and have used as our guidelines the various factors that have been identified by the courts as indicative of a fraudulent intent to defraud the spouse. After so doing we conclude that the transfer here was made in fraud of the marital rights of plaintiff.

One highly material element is lack of consideration for the transfer. Nelson v. Nelson, supra, [4]. The Mouldons admitted they provided no part of the $7000 to purchase the certificate.

A second important factor is the retention of control by the transferor-spouse over the asset in question. August LaGarce surrendered physical control of the certificate to the Mouldons the same day he had the Mouldons names added to his name on the certificate. But LaGarce did not relinquish all control over the certificate, for he had the oral promise of the Mouldons that they would return the certificate to his possession when and if he needed it. La-Garce’s trust was undoubtedly founded both on his second cousin relationship with James Mouldon and his long friendship with the couple. LaGarce’s faith in the Moul-dons was vindicated when they responded, although in a rather roundabout fashion, to his request for the certificate’s return. Thus LaGarce did maintain a certain control over the certificate during his lifetime.

A third important factor is whether the amount of the transfer was disproportionate to the value of LaGarce’s total estate at the time of the transfer. On August 21, 1969, the day LaGarce transferred ownership of the $7000 certificate from his name to a joint tenancy with the Mouldons, the value of property in LaGarce’s name or in the joint names of LaGarce and plaintiff was somewhere between $40,000 and $50,-000. Thus the $7000 certificate represented approximately one-sixth of LaGarce’s total estate on that day. A number of cases have wrestled with the question whether the value of a particular transfer was disproportionate to the transferor-spouse’s total estate. See, e. g., Nelson v. Nelson, supra; In Re Estate of Lowe, supra; Edgar v. Fitzpatrick, supra.

We believe this factor must be reviewed solely in the particular circumstances of each case. Plaintiff here is an elderly woman with no children. There is no evidence of her remarriage. She has not worked since her marriage to LaGarce in 1944. She obviously is in ill health, for she was unable to appear at the trial. Her physician stated she was under treatment for a progressive heart condition that had required extensive hospitalization during 1973. Under these circumstances we find the $7000 transfer in question was disproportionate to LaGarce’s total estate at the time of the transfer.

Another factor in determining the intent and purpose motivating the transfer is whether the transferor-spouse made the transfer openly and with frank disclosure. Here the evidence shows that August La-Garce did not make the transfer openly and with frank disclosure. True, there was no concealment of the transfer over a long period of time. Four certificates, totalling $11,000, which were in the name of plaintiff and August LaGarce, were cashed in by him on August 16, the day following the separation. The certificate in question was issued in August LaGarce’s name alone. Then on August 21, the names of Leona and James Mouldon were added to the certificate. During the month of September, August and Bertha LaGarce discussed reconciliation and entered into a reconciliation agreement. Plaintiff first learned about the transfer from August LaGarce sometime in September. However, she believed that Mr. Quinn had this certificate along with the other assets of August. It was not until six days before the death of August LaGarce that plaintiff learned that Quinn did not have the certificate.

The next factor considered by the courts is whether LaGarce was in contemplation of death on the August 21,1969, transfer date. August LaGarce was suffering from emphysema, a urinary disorder, and possibly a heart condition and died October 9, 1969, but there is no evidence the transfer to the Mouldons was made in contemplation of imminent death. However, contemplation of imminent death by the transferor-spouse is not an indispensable requirement. Nelson v. Nelson, supra, [14]; Resch v. Rowland, 257 S.W.2d 621, 626 (Mo.1953). As said, fraud may be found by weighing all the facts and circumstances in evidence.

A strong circumstance pointing to La-Garce’s fraudulent intent is the timing of the transfer in question. The couple separated on August 15, 1969. That very evening LaGarce removed from his safe deposit box the four certificates, jointly owned with plaintiff, that he later cashed in to buy the $7000 certificate. The next day, August 16, LaGarce cashed in the four certificates at Tower Grove Savings and Loan; he then used the cash to buy a $4000 certificate in joint ownership with John Zakibe and a $7000 certificate in his name alone. Mrs. Mayer testified that LaGarce had mentioned his marital difficulties during the August 16 transaction. Six days after the separation, on August 21, LaGarce went to Tower Grove to add the Mouldon’s name to the $7000 certificate as joint tenants. On this occasion LaGarce again mentioned his marital difficulties to Mrs. Mayer. Although one reason for LaGarce’s transfer undoubtedly was his deep personal affection for the Mouldons, we believe both the timing of the transfer and the words he spoke to Mrs. Mayer demonstrate the transfer was ultimately prompted by the separation and was intended to deprive plaintiff of her marital rights in his estate. There is no evidence that the Mouldons (unlike John Zakibe) had ever received a gift of money or joint ownership from LaGarce before August 21, 1969.

Another circumstance closely related to the transfer in question which is indicative of fraudulent intent by LaGarce to defraud his wife is LaGarce’s conduct in placing both his own assets and their jointly held assets beyond plaintiff’s control between the separation and reconciliation. On August 15 LaGarce and John Zakibe went to the bank, where LaGarce changed joint checking and savings accounts worth about $11,500 to his name. LaGarce told Zakibe he was doing this so he would be the only one who could touch those assets. In September LaGarce transferred possession to Quinn of almost $30,000 worth of assets in his name or held jointly with his wife. Defendant Quinn, in answers to interrogatories, said the purposes of his custody were “to make them inaccessible to his wife Bertha LaGarce, and for the purpose of investment and reinvestment, which was not accomplished.”

Although LaGarce’s acts, and accompanying words, of converting joint assets to his name and then placing most of his joint and solely owned assets in the possession of his attorney do not fall within the prohibition of Section 474.150(1), we believe they do evidence LaGarce’s determination to place the assets entirely beyond plaintiff’s control. And when LaGarce went one step further and transferred his sole ownership of the $7000 certificate to a joint tenancy with the Mouldons, he acted with the intent and purpose to defraud plaintiff of her marital rights in that portion of his estate.

Although the fraud we must find lies in the intent of LaGarce, we think it appropriate to review the effects of the transfer in question on the reasonable expectation of the plaintiff. Bertha LaGarce had been the joint owner of the four certificates that supplied the money for the $7000 certificate since their purchase in 1951, 1954, 1955 and 1965. For many years, plaintiff must have realized that the jointly held certificates would revert to her sole ownership if La-Garce predeceased her.

Defendants note that (1) plaintiff had voluntarily surrendered to her husband, as he had to her, the right to receive full payment on the certificates when they signed the signature cards for the certificates, and (2) plaintiff had contributed no monetary consideration toward the purchase of the four certificates purchased from 1951-1965.

We agree that plaintiff consented to her husband’s right to receive full payment for the four certificates pursuant to the statute (§ 369.150 RSMo. 1969) regulating joint accounts in savings and loan companies. But the statute does not destroy plaintiff widow’s reasonable expectation to share in this part of her husband’s estate if he predeceased her.

Nor must we forget that a wife brings much more than money to a marriage. Plaintiff rendered the services of a faithful wife to LaGarce during the 25 years of their marriage, except for the six week separation. Commenting on a wife’s contribution to a marriage the court in Nelson v. Nelson, supra, stated at 463:

“It is not necessary to cite the recent studies by a number of economists undertaking to reduce to a dollar amount the sheer economic value of such services— we all know without precise computation that these services are very valuable, indeed beyond any mere dollar amount.”

Since we reverse the decision of the trial court because of our finding that August LaGarce acted in fraud of plaintiff’s marital rights, we do not reach plaintiff’s second contention on appeal.

Reversed and remanded with instructions to enter judgment in favor of plaintiff.

WEIER, P. J., and RENDLEN, J., concur.

      . August LaGarce and John Zakibe had another $4000 savings certificate in their joint names since 1964. There was no evidence of how much LaGarce or Zakibe had contributed for this 1964 certificate.

      . James Mouldon died on February 16, 1971.

      . Concerning the transfer of jointly owned personalty, the court in Nelson v. Nelson, supra, noted (at 459-60): “Although a transfer by way of joint account is unquestionably valid in the absence of fraud, undue influence, mental incapacity or mistake [citing In Re Estate of LaGarce, supra], nevertheless, the intrinsic nature of this type of joint survivorship ownership is quasi testamentary, and that fact has been treated as a substantial factor for consideration concerning the intention of the transferor-spouse, with transfers of this general nature frequently being referred to as only ‘illusory.’ [Citations omitted].”

      . The LaGarces raised a foster child from the age of sixteen months, but there is no evidence the child has cared for or can care for the plaintiff.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dennis OLDS, Appellant, v. STATE of Missouri, Respondent.
    No. 36493.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 30, 1975.
    Herbert A. Kasten, Jr., Huck, Kasten & LaBeaume, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean and Timothy J. Verhagen, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty. and Michael C. Sullivan, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

This is an appeal from a judgment of the circuit court of the City of St. Louis denying appellant’s amended motion to vacate sentence filed pursuant to Rule 27.26, V.A. M.R. Because a timely notice of appeal was not filed in this cause, we are without jurisdiction and accordingly dismiss the appeal.

On February 28, 1974, appellant filed his motion to vacate and set aside a judgment sentencing appellant to life imprisonment for the offenses of robbery and murder to run concurrently. Later an amended motion was filed on May 13, 1974.

On July 2, 1974, a hearing was held on the post conviction motion. On July 12, 1974, the court in a written opinion overruled the motion.

The record is unclear as to the exact date a notice of appeal was filed by appellant’s counsel. One paper (not a notice) is dated August 26, 1974, but filed September 10, 1974, and the “notice of appeal” is dated September 10, 1974. In either case the notice was not timely filed, and we are without jurisdiction to entertain the appeal.

A motion filed under Rule 27.26 is an independent civil action which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974). An order overruling a 27.26 motion is deemed a final judgment for purposes of appeal. Rule 27.26(j); State v. Gullett, 411 S.W.2d 227, 228 (Mo.1967). A judgment becomes final thirty days after its entry. Rule 81.05. A notice of appeal must be filed within ten days after the judgment or order becomes final. Rule 81.04. If no notice is filed within the time authorized, no appeal shall be “effective.” Rule 81.04. The order of the circuit court entered on July 12, 1974 denying appellant’s motion became final August 12, 1974. Taking the earliest date — August 26,1974 — as the date of filing the notice of appeal, the appeal is out of time. The failure to file a timely notice of appeal from a final judgment or order in a 27.26 proceeding deprives this court of jurisdiction to entertain this appeal. State v. Gullett, supra, 411 S.W.2d at 228; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665 (Mo.App.1975). Nothing in the record indicates that an application was made to the appropriate appellate court to obtain a special order to appeal. Rule 81.07.

The failure of appellant’s original counsel to file a timely notice of appeal has deprived this court of jurisdiction. Hence, the appeal must be and is dismissed.

The appeal is dismissed.

All the Judges concur.


text:
    Robert REYNOLDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36234.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 30, 1975.
    Whitfield, Montgomery & Walton, Rita Montgomery, St. Louis, for movant-appel-lant.
    John C. Banforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

After nine years of incarceration in the Missouri penitentiary, movant filed his Rule 27.26 motion for post conviction relief to set aside his guilty pleas on three counts of first degree robbery and one count of first degree murder. Movant asserts incompetency of counsel as the basis for relief. A thorough evidentiary hearing was held on movant’s motion with the trial court denying his motion for relief. We note that movant’s attorney at his guilty pleas and the trial court judges accepting his pleas of guilt and hearing his motion for relief are now deceased.

The trial court’s order denying movant’s relief is dated June 21, 1973. Movant’s notice of appeal is dated May 16, 1974. Movant’s appeal is therefore too late for us to consider. We have recently considered the identical situation in Olds v. State, 532 S.W.2d 518 (Mo.App.1975), where we said:

“A motion filed under Rule 27.26 is an independent civil action which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974). An order overruling a 27.26 motion is deemed a final judgment for purposes of appeal. Rule 27.26(j); State v. Gullett, 411 S.W.2d 227, 228 (Mo.1967). A judgment becomes final thirty days after its entry. Rule 81.05. A notice of appeal must be filed within ten days after the judgment or order becomes final. Rule 81.04. If no notice is filed within the time authorized, no appeal shall be ‘effective.’ Rule 81.04. . . . The failure to file a timely notice of appeal from a final judgment or order in a 27.26 proceeding deprives this court of jurisdiction to entertain this appeal. State v. Gullett, supra, 411 S.W.2d at 228; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665 (Mo.App.1975). Nothing in the record indicates that an application was made to the appropriate appellate court to obtain a special order to appeal. Rule 81.07.
“The failure of appellant’s original counsel to file a timely notice of appeal has deprived this court of jurisdiction. Hence, the appeal must be and is dismissed.”

The appeal is dismissed.

All the Judges concur.


author: SMITH, Chief Judge.

text:
    Harold WALLICK, Plaintiff-Respondent, v. FIRST STATE BANK OF FARMINGTON, Defendant-Appellant.
    No. 35862.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 6, 1976.

      Dearing, Richeson, Roberts & Wegmann, G. William Weier, Hillsboro, for defendant-appellant.
    Thurman, Nixon, Smith & Howald, James E. Bowles, Hillsboro, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant appeals from a judgment against it in accord with the verdict of a jury in a suit in two counts premised upon wrongful dishonor and breach of contract. The judgment was for $770.87 on Count I, the wrongful dishonor, and for $508.42 actual damages and $2,500 punitive damages on Count II, the breach of contract.

Plaintiff made arrangements for the building of a residence in St. Francois County through a general contractor, Clay Wideman. Plaintiff borrowed $26,500 from defendant which was placed in a “special account” in defendant bank. The account was not an escrow account and the bank had no security interest in the account itself. Checks on the account required the signatures of two of three persons, plaintiff, Wideman or Jack Sebastian, an officer of the bank. Originally, plaintiff would approve invoices and transmit them from the St. Louis area to the bank and checks would be issued, signed by Wideman and Sebastian. Certain difficulties arose with subcontractors and some lack of faith in Wideman' arose, so it was agreed that plaintiff would make out the checks which would then be presented by the contractor or subcontractor to Sebastian for signature. In every circumstance except one, checks on the account payable to the contractor or a subcontractor were either signed by plaintiff or were supported by invoices approved by him. The one exception was a check to Jennings Lumber Company for $508.42, signed only by Sebastian and which was unsupported by any invoice, bill or other record in the bank files. The president of the defendant was also the president of Jennings Lumber Company. Sebastian “thought” that plaintiff had orally approved such payment; plaintiff stated that he had not and knew nothing about the check until he received a bank statement some 5 months after the check was issued.

Approximately a year later, on August 26, 1969, the house was largely finished although there were still some items to be corrected. No liens were pending and no money was owed by plaintiff to any contractor or subcontractor. Plaintiff, accompanied by his lawyer, attempted to withdraw from the account the remaining balance, some $1,447. The bank refused to turn over the funds. Plaintiff then issued a check to his wife for that balance; she presented the check to Sebastian for his signature; Sebastian refused to sign the check stating that the money in the account did not belong to the Wallicks. At trial, Sebastian stated that he was trying to be a “good Samaritan” to protect any subcontractors who might have claims against Wideman, who by this time was insolvent. He admitted the money in the account belonged to Wallick and the bank had no interest or claim against it. The heating and air conditioning subcontractor had filed a lien and suit against the Wallicks and Wideman but on Aug. 13, 1969, that suit and the lien were dismissed with prejudice as to the Wallicks. Judgment was entered against Wideman and in October, 1969, a writ of garnishment in execution of the judgment against Wideman was served on the defendant apparently naming the Wal-licks as judgment debtors. Without notifying Wallick, the bank, on November 14, 1969, paid over to the Circuit Court $770.87 from Wallick’s account. Subsequently, the bank paid to Wallick the amount left in the account after the payment under the garnishment.

Plaintiff’s petition was in two counts. Count I sought recovery of the $1447.86 from defendant under a theory of wrongful dishonor. Count II sought recovery of the $770.87 for breach of contract plus punitive damages. Neither count mentioned nor sought relief for the payment to Jennings Lumber Company. Over defendant’s objection, the Jennings’ transaction was testified to by plaintiff during the trial. Thereafter, and still over defendant’s objection, plaintiff was allowed to amend his petition by adding to Count II the allegations concerning the Jennings Lumber payment. Defendant then requested a mistrial and a continuance to conduct additional discovery. These requests were denied. Defendant, on the Jennings’ matter, now challenges only the court’s refusal to grant a continuance. No challenge is made to the admission of the evidence nor the allowance of the amendment.

It is within the sound discretion of the trial court to grant or refuse a continuance after permitting an amendment to the pleadings during the course of the trial. Simon v. S. S. Kresge Co., 103 S.W.2d 523 (Mo.App.1937) [2]. That discretion is neither an absolute nor arbitrary discretion. Missouri Public Service Company v. Argenbright, 457 S.W.2d 777 (Mo.1970). Defendant contends that the amendment rendered obsolete its prior defense and that new defenses would have been asserted had a continuance been granted. “. . . [t]he fact that a defense is rendered obsolete by an amendment is not a ground of prejudice and . . . the real test is whether additional proof or additional witnesses for which a party is not prepared would be required to meet the new allegations . .” Derboven v. Stockton, 490 S.W.2d 301 (Mo.App.1972) [4]. Defendant states that records of the bank and lumber company were necessary to defend this new issue. The bank records were available and testified to by Sebastian. Mr. Jennings and Sebastian were both called as witnesses after the amendment and there is no showing that they were not fully prepared to testify on all facets of the transaction.

Defendant contends that it needed time to produce evidence that the lumber and materials paid for had actually gone into the house and therefore plaintiff was not damaged. We fail to see how this was relevant to plaintiff’s claim. Whether plaintiff owed Jennings Lumber Company money or not was a matter solely between plaintiff and Jennings. The bank’s function is to honor its contract with plaintiff; it is not the bank’s function to determine which creditors should or should not be paid.

“The word ‘volunteer’ is frequently defined in terms of a person who pays the debt of another, and in this sense a ‘volunteer’ is one who, acting on his own initiative, pays the debt of another without invitation, compulsion, or for self-protection; one who pays the debt of another without request, when he is not legally or morally bound to do so and when he had no interest to protect in making s"ch payment; one who pays the debt of a stranger where he is under no legal obligation to do so; one who, without any real or supposed interest of his own to protect, without the debtor’s request, without any agreement with either debt- or or creditor that he shall be put in possession of the creditor’s rights, and without any equity in his own favor, in-termeddles and pays the debt.” 92 C.J.S. Volunteer, p. 1032. See also Trinity Universal Ins. Co. v. State Farm Mutual Auto Ins. Co., 246 Ark. 1021, 441 S.W.2d 95 (1969) [2-4],

It would be difficult to find a definition which more closely describes the bank’s position in this case. It paid over funds to Jennings Lumber for an alleged debt of Wallick and, in breach of its contract with Wallick, charged that payment against Wallick’s account. “Except where otherwise provided by statute, it is a well settled general rule that a person cannot, either by way of set-off or counterclaim, or by direct action, recover back money which he has voluntarily paid with full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed.” 70 C.J.S. Payment § 133. Baldwin v. Scott County Milling Co., 343 Mo. 915, 122 S.W.2d 890[6] (1938), rev’d on other grounds 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409; R. S. Jacobs Banking Co. v. Federal Reserve Bank of St. Louis, 34 S.W.2d 173[3-5] (Mo.App.1930). And, see Restatement of the Law, Restitution, Chapter 1, Sec. 2. While the bank characterizes its defense as mitigation of damages, it is more properly a set-off. When the bank made payment to Jennings, it did so as a volunteer or intermeddler and it cannot recover or set-off that payment against plaintiff’s claim.

We are unable to find prejudice to the defendant or an abuse of the court’s discretion in refusing the mistrial and continuance.

As to Count I, defendant contends that no wrongful dishonor occurred because the check issued to Mrs. Wallick did not carry two signatures. We do not agree. The missing signature was that of the bank officer. By that officer’s testimony it is clear that the bank had no interest in the money on deposit. Its loan was secured by a deed of trust and payment of checks was in no way dependent upon any security interest of the bank in the funds. The money was Wallick’s. Sec. 400.4^402 RSMo 1969 does not define wrongful dishonor. Taking the transaction as a whole including Sebastian’s explanation of his reasons for refusal to sign, which were legally insufficient, we find the evidence sufficient to support recovery for wrongful dishonor. Nor do we accept defendant’s contention that the wrongful garnishment was the proximate cause of plaintiff’s loss. Obviously, if the check to Wallick’s wife had been honored, as it should have been, there would have been no funds to which the garnishment could attach and no loss to plaintiff.

We are unable to approve the award of punitive damages on Count II. Punitive damages are not allowed for breach of contract. Williams v. Kansas City Public Service Company, 294 S.W.2d 36 (Mo.1956) [7, 8]. The exceptions to this rule occur where the breach amounts to an independent, willful tort and there are proper allegations of malice, wantonness or oppression. We are not advised by respondent what independent tort is established by the evidence nor do we find one. The award of punitive damages was improper.

We find defendant’s other point without merit.

Judgment as to Count I affirmed, judgment as to Count II affirmed as to actual damages, reversed as to punitive damages.

STOCKARD and HOUSER, Special Judges, concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Faye ADAMS, Defendant-Appellant.
    No. 9731.
    Missouri Court of Appeals, Springfield District.
    Jan. 12, 1976.
    Motion for Rehearing or Transfer Denied Feb. 2, 1976.

      W. Newell Toalson, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Defendant Robert Faye Adams was found guilty of willful failure to appear in court (bond jumping) as defined and denounced by § 544.665, RSMo Supp.1973. His punishment was assessed at imprisonment for a term of five years and he appeals.

Accused of slaying his wife, Adams was convicted of murder in the second degree, on February 20,1971, after trial to a jury in the Circuit Court of Greene County. His punishment for this offense was fixed at imprisonment for a term of 40 years. On April 6,1971, Adams filed a notice of appeal and the amount of his bond on appeal was set at $25,000. On April 9,1971, defendant and five personal sureties executed a super-sedeas bond, and defendant was thereupon enlarged.

Defendant resumed his business activities, and at least until June 23, 1973, maintained contact with his bondsmen as mutually arranged. Defendant normally traveled a good deal, and during the two-year period from April 1971 to April 1973 he made trips to Mexico and Central America, keeping his bondsmen informed of his whereabouts.

In April 1973 Adams returned to his home in Springfield. The State’s evidence was that he expected to have to “go and serve his time”, and he therefore began to liquidate his business. The defendant’s testimony was that he started closing out his business because, “I just didn’t have the money to have a [business] high in accounts receivable and be relatively close to a decision.” He decided to tour the western states and in May 1973 left Springfield to go to Colorado, Arizona and New Mexico. While he was in Arizona in June 1973, defendant met a young German woman, Priederike Myer. Without informing his bondsmen of his intention to be married or to travel overseas, and without advising his prospective bride of his conviction, Adams married Miss Myer and in early July 1973 accompanied her to her parents’ home in a remote village in the German Federal Republic. Prior to June 28, 1973, defendant had always furnished his bondsmen some means of locating him; after his marriage and while he was in Germany he severed all communication.

On July 16, 1973, our Supreme Court affirmed Adams’ conviction of second-degree murder. State v. Adams, 497 S.W.2d 147 (Mo.1973). Because Adams’ whereabouts were unknown, the mandate of that court could not be executed, forfeiture of the appeal bond was ordered and a capias warrant issued.

Defendant’s bondsmen began trying to locate him. The State’s evidence was that the bondsmen had 500 posters printed in Spanish and English which were circulated among state and local police forces of all the major cities of Mexico, Central and South America. Another 500 posters were printed in English and were circulated in most of the major cities west of the Mississippi. The distribution of posters produced no response. The bondsmen finally enlisted the cooperation of the Federal Bureau of Investigation, and on November 9, 1973, Adams was apprehended at O’Hare Airport in Chicago as he debarked a return flight from Europe.

Section 544.665, which defines the offense of willfully failing to appear, or “bond jumping”, reads in pertinent part as follows:

“1. In addition to the forfeiture of any security which was given or pledged for his release, any person who, having been released pursuant to sections 544.040 to 544.665, or upon a recognizance or bond pursuant to any other provisions of law, willfully fails to appear before any court or judicial officer as required shall be guilty of an offense and punished as follows:
(1) If arrested for or charged with a felony, by a fine of not more than five thousand dollars or imprisoned [sic] for not more than five years;”

This statute is relatively new; it was enacted in 1972 as part of an act designed, among other things, to modify and liberalize bail and release procedures in criminal cases. Laws of Mo.1972, p. 1027. Although our research has not disclosed the prototype of § 544.665, our examination of comparable statutes leads us to believe that present §§ 544.455 and 544.665 are similar in intent to §§ 3146, 3150 and 3151 of the Federal Bail Reform Act of 1966, now codified as 18 U.S.C. §§ 3146, 3150 and 3151. See 1966 U.S.Code Cong. & Admin.News, pp. 2305-2306. We therefore consider the federal decisions construing and applying 18 U.S.C. §§ 3146 and 3150 persuasive, though not controlling, in this case. Cf. Cooper v. Finke, 376 S.W.2d 225, 228[1] (Mo.1964).

In this court the defendant questions the sufficiency of the evidence in several respects. In particular, he argues that the State did not demonstrate that he “willfully” failed to appear because the evidence does not indicate that he acted with a deliberate purpose to avoid appearing when he was required to do so.

The term “willful” as used in criminal statutes simply means intentional. State v. Marston, 479 S.W.2d 481, 483-484[2, 3] (Mo.1972); State v. Baumann, 311 Mo. 443, 450, 278 S.W. 974, 976[4] (1925). The evidence that defendant purposely disobeyed or disregarded the law is circumstantial, but willfulness can seldom be directly proved, United States v. Wetzel, 514 F.2d 175, 177-178[3] (8th Cir. 1975), and every legitimate inference favorable to the verdict must be indulged by this court. State v. Kays, 492 S.W.2d 752, 758[1] (Mo.1973); State v. Burton, 357 S.W.2d 927, 930[2] (Mo.1962); State v. Brown, 291 S.W.2d 615, 620[9] (Mo.1956). No single fact or circumstance shown here conclusively proves defendant’s guilt, but his course of conduct after he began to liquidate his business, anticipating an unfavorable decision on appeal, is entirely consistent with a deliberate design to avoid the command of the law. Construed most favorably to the result reached, the evidence supports the judgment of conviction.

Another point for discussion is defendant Adams’ assertion that his conviction cannot stand because he received no written notice that he was required to appear, nor any warning of the consequences of his failure to do so.

We agree that a fair reading of § 544.665 implies that a defendant released on bond will be given a reasonable notice that he is required to appear, and, since January 1,1973, Rules 28.11 and 28.12 have prescribed procedures designed to afford such notice. It is quite another thing to say, in this factual situation, that Adams’ conviction must be reversed because he received no written notice that his appearance was required. Having chosen to become a fugitive from justice, the defendant is now in no position to complain that a wholly unavailing act should have been performed by the trial court, and the want of specific notice on his part does not vitiate the conviction. United States v. Cohen, 450 F.2d 1019, 1021[2] (5th Cir. 1971); United States v. DePugh, 434 F.2d 548, 551-552[2, 3] (8th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971).

Defendant’s claim that he should have been warned of the consequences of his failure to appear is repeated several times in his brief and reflects his understanding that present § 544.665 incorporates § 544.455, and that the warning provided for in § 544.455, para. 3, is a precondition to prosecution under § 544.665. We do not agree.

Section 544.455 authorizes the conditional release of defendants charged with bailable offenses; the language and import of the statute are similar to 18 U.S.C. § 3146. In particular, § 544.455, para. 3 provides:

“A magistrate or judge authorizing the release of a person under this section (our emphasis) shall issue an appropriate order containing a statement of the conditions imposed [upon the defendant’s release], if any, [and] shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.”

For several reasons, the “warning” provision has no application here. Adams was not released conditionally pursuant to § 544.455; his liberty, pending the outcome of his appeal, was in no way restricted. As we read the statute, the order and warning provisions are applicable only to criminal defendants released subject to the restrictions enumerated in § 544.455, which had not been enacted when Adams was enlarged. Moreover, the argument advanced by the defendant has been carefully considered in connection with the federal statutes and rejected. The warning provided for by § 544.455, para. 3, is intended to deter violation of the conditions imposed, but it is in no sense a condition precedent to prosecution under § 544.665, nor is the State required to prove that a warning was given and disregarded. United States v. DePugh, supra, 434 F.2d at 552-553.

Complaint is made of Instruction No. 4, the State’s main or verdict-directing instruction. In form, the instruction is unexceptionable; it is carefully patterned upon the verdict-directors promulgated for use in criminal cases pursuant to Rule 20.01, and the requirements of Rule 20.02(d) have been fully satisfied. In substance, Instruction No. 4 requires the jury to find beyond a reasonable doubt that Adams, on a specified day, while enlarged on bond, willfully failed to appear before the Greene County Circuit Court when required. The instruction recites the conversive “tail” found in all MAI-CR verdict-directors. As for punishment, the jury is instructed that if it finds defendant guilty, it will fix his punishment a) at “imprisonment . . . for a term fixed by [the jury], but not less than two years nor more than five years”, or b) by “a fine fixed by [the jury], but not more than $5,000.”

Here, the defendant argues that the jury should have been required to find that the defendant was released on bond, conditioned that he appear to obey every order of the court as ordered, that he willfully failed to appear, and that the jury should have been told that “willful” means committed voluntarily, with the purpose of avoiding the law and not by accident, mistake or in good faith.

There is no merit in these arguments. Instruction No. 4 defined the offense charged in the language of the statute creating the offense. In this jurisdiction it is ordinarily proper and sufficient to hypothesize the elements of a statutory offense in the language of the statute; moreover, the conditions of defendant’s appeal bond were matters of law for the court, and it would have been improper to submit the interpretation of the bond as a matter of fact for the jury. Cf. State v. Brown, 171 Mo. 477, 488, 71 S.W. 1081,1034 (1903). As for the defendant’s contention that he was prejudiced by the trial court’s failure to define the word “willful”, we find that in Instruction No. 5, the trial court advised the jury that the term “willfully”, as used in the instructions, meant intentionally, and not accidentally. This is a correct definition of the term, State v. Marston, supra, 479 S.W.2d at 483-484[2, 3]; State v. Baumann, supra, 311 Mo. at 450, 278 S.W. at 976[4], the instructions must be considered as a unitary charge, State v. Prigett, 470 S.W.2d 459, 461-462[2] (Mo.1971); State v. Gailes, 428 S.W.2d 555, 559[6] (Mo.1968), and when the instructions are so considered, it becomes obvious that defendant’s point is without merit.

A further complaint is that the trial court did not follow the statute in advising the jury of the range of punishment which might be assessed, because the jury was told that if it found defendant guilty, it might assess his punishment at imprisonment in a correctional institution for a term not less than two nor more than five years. Such instruction was erroneous, defendant says, because the statute fixes no minimum punishment. In support of this contention defendant has cited us to State ex rel May Department Stores Co. v. Weinstein, 395 S.W.2d 525 (Mo.App.1965), which holds that statutes must be construed as they are written, and State v. Hurt, 285 S.W. 976[2] (Mo.1926), which holds that an instruction which overstates the minimum punishment prescribed by law is erroneous. We agree that in criminal cases the jury must be fully advised of the range of punishment which may be assessed, but we find no error in this case.

Adams had been convicted of a felony and § 544.665, para. 1(1), quoted above, was applicable. Again, giving the statute a fair reading, it is obvious that the General Assembly intended to make bond jumping a “mixed” or graded felony when the defendant stands accused or convicted of a felony.

The fact that a jury could have assessed only a fine in this case does not reduce the offense charged to a misdemeanor. State v. Plassard, 355 Mo. 90, 92-93, 195 S.W.2d 495, 496[1] (banc 1946); State v. Combs, 301 S.W.2d 529[2] (Mo.App.1957). Since 1835, § 546.490, RSMo 1969, has been taken to prescribe a minimum sentence of two years for statutory felonies when no minimum term is stated. State v. Crouch, 316 S.W.2d 553, 554-556[3] (Mo.1958). Therefore, and contrary to defendant’s position, the trial court was obliged to advise the jury that the minimum term of imprisonment which could be assessed was two years. Rule 26.-02, para. (6); State v. Carlson, 325 Mo. 698, 702, 29 S.W.2d 135, 137[2, 3] (1930); State v. Griffin, 320 Mo. 288, 295, 6 S.W.2d 866, 868[6] (1928); State v. Scholl, 130 Mo. 396, 399, 32 S.W. 968, 969 (1895).

Another assignment of error is that the trial court erred in denying Adams’ motion to dismiss the information and in denying his motion for judgment of acquittal because § 544.665 had not been enacted when the bond was executed. Defendant’s position, as we understand his brief, is that as to him, § 544.665 is an ex post facto law in violation of U.S.Const. art. I, § 10, cl. 1. In this connection he repeats his argument that he should have received a warning of the consequences of his failure to appear.

Neither the motion to dismiss the information nor the motion for judgment of acquittal mentions ex post facto laws; we doubt that any constitutional issue is preserved for review. State v. Smith, 310 S.W.2d 845, 850-851[6] (Mo.1958). Assuming, however, that error of constitutional dimension known before trial can be assigned for the first time in a motion for new trial, defendant’s point is groundless. A criminal statute is an ex post facto law if it denounces as a crime an act or acts which were innocent when committed or changes the penalties to be imposed for criminal violations after the date of the violation. State ex rel. Jones v. Nolte, 350 Mo. 271, 284, 165 S.W.2d 632, 638[15] (banc 1942). Section 544.665 was enacted at the Second Regular Session of the 76th General Assembly and became effective August 13, 1972. Laws of Mo.1971-1972, p. 1063. Adams’ failure to appear occurred on August 17, 1973, more than a year after § 544.665 had become law. The conduct for which the defendant was punished was criminal when it was committed, and § 544.665 operated neither ex post facto nor retrospectively in this case.

A final point urged is that the trial court erred in permitting one of the bondsmen to testify concerning his efforts and the efforts of other bondsmen to locate the defendant when he failed to appear. The objection made was that such evidence was “irrelevant and prejudicial”. We cannot agree. The testimony received by the trial court tended to establish that defendant’s failure to appear was deliberate and willful, the result of a plan or design to evade incarceration. We consider it relevant and hold there was no error in permitting Mr. Anderson, the bondsman, to testify as he did. Cf. State v. Musick, 101 Mo. 260, 271-272, 14 S.W. 212, 214-215 (1890).

The judgment is affirmed.

All concur.

      . References to statutes and rules are to RSMo Supp.1973, V.A.M.S. and V.A.M.R., unless otherwise noted.

      . State v. Bennett, 87 S.W.2d 159, 163[9] (Mo.1935) (manslaughter); State v. Ryland, 324 Mo. 714, 721, 25 S.W.2d 109, 112[7] (1930) (manslaughter); State v. Frank, 103 Mo. 120, 125, 15 S.W. 330, 331 (1891); State v. Miller, 93 Mo. 263, 269, 6 S.W. 57, 60 (1887) (“At all events, instructions . are sufficiently correct which set forth all the facts necessary to constitute the offense, as defined in the statute.”); see also 23A C.J.S. Criminal Law § 1194, p. 496 (1961).


author: BILLINGS, Chief Judge.

text:
    Glen W. JOHNSON and Mabel Johnson, Plaintiffs-Appellants, v. William J. ROBERTS and Mrs. William J. Roberts et al., Defendants-Respondents.
    No. 9932.
    Missouri Court of Appeals, Springfield District.
    Jan. 12, 1976.
    Rehearing denied Feb. 5, 1976.

      Kenneth W. Johnson, Johnson & Sweeney, Springfield, for plaintiffs-appellants.
    Arthur S. Haseltine, Haseltine & Hasel-tine, Springfield, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

“Good fences make good neighbors” penned the poet, but a boundary fence erected before the turn of the century gave rise to this suit between kinsmen. Plaintiffs claimed title to a strip of land by adverse possession and sought injunctive relief against the defendants. Trial to the court resulted in plaintiffs’ claims being denied and judgment being entered in favor of the defendants. We reverse the judgment and remand the case for entry of judgment quieting the title to the disputed strip in the plaintiffs and granting them the requested equitable relief.

Plaintiffs and defendants are the owners of adjoining farms in Greene County. Plaintiffs are the record owners of the north half and the defendants are the record owners of the south half of the southwest quarter of the southeast quarter of Section 23, Township 21, Range 21.

The common source of title to both tracts of land was William Roberts, grandfather of plaintiff Mabel Moses Johnson and defendant William J. Roberts. The fence was constructed prior to 1896. That year, following the intestate death of William Roberts, a partition suit resulted in the north tract being set off to Mabel’s mother, Carrie, and the south tract being set off to William J.’s uncle, Charles. Defendants acquired title to the south tract from Charles Roberts in 1939. In 1963 the plaintiffs purchased the north tract from the administratrix of the estate of Carrie Moses.

The evidence was undisputed that the fence was considered to be the southern boundary of the Moses farm (north tract) and plaintiffs had always claimed to own to the fence. During the ownership of Carrie Moses a barn was located near the fence on the strip of ground and cattle were pastured within the fenced confines of the Moses farm. A portion of the strip was also used by the Moseses for a garden spot. After plaintiffs purchased the farm the barn was torn down; and a portion of the strip was used by plaintiffs’ tenant for a garden spot and the remainder was pastured.

The defendants acknowledged they had never farmed or pastured their cattle on the north side of the fence. They caused repairs to be made to the fence in order to keep their livestock on the south side of the fence and never made any claim to any property lying north of the fence.

More than ten years after the plaintiffs purchased and took possession of the lands north of the fence, they caused a survey of the property to be made. The survey revealed the fence to be south of the dividing line between the north half and the south half of the southwest quarter of the southeast quarter. At the west boundary of the tracts the fence was eight feet south of the line, and at the east boundary it was twenty-nine feet south of the line. Several months later the defendants began erecting a new fence along the surveyed line, and this litigation followed.

Our review of this non-jury case is upon the law and the evidence as in suits of an equitable nature, and although we defer to the findings of the trial court where the matter of credibility of witnesses is involved, we need not do so where a disputed question is not a matter of direct contradiction by different witnesses. Rule 73.01, V.A.M.R.; Slentz v. Cherokee Enterprises, Inc., 529 S.W.2d 495 (Mo.App.1975). Further, if the lower court’s judgment is erroneous we must render such judgment as the court ought to give. Rule 84.14, V.A.M.R.; Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975).

The trial court made findings of fact and conclusions of law in entering judgment for the defendant. We have carefully examined the court’s findings and deem them to be without competent evidentiary support. Plaintiffs carried their burden of proving adverse possession of the disputed strip. Their possession was hostile and under a claim of right. Possession was actual, open, notorious, exclusive and continuous for more than the ten-year statutory period [§ 516.010, RSMo 1969],

The Moses farm was fenced, and the plaintiffs always claimed and intended to own the farm to what was commonly known as the boundary fence separating the north and south tracts. The boundary fence had long been recognized by the parties and the community as being the property line between the two acreages. The disputed strip was gardened and pastured as a part of the Moses farm by plaintiffs and their tenant. Plaintiffs’ predecessor in title made similar use of the north tract all the way to the fence for many years before plaintiffs purchased the farm. The defendants, although aware the fence did not follow a true east and west line, never at any time claimed to own any property north of the fence and repaired the fence in order to keep their livestock on the south side of it.

The evidence adduced by the plaintiffs shifted to the defendants the burden of going forward on the issue of adverse possession. Slentz v. Cherokee Enterprises, Inc., supra. Defendants failed to sustain this burden. Contrary to the court’s findings, there was no competent evidence that: (1) Grandfather Roberts erected the fence; (2) the fence was erected for convenience; (3) the partition suit gave Carrie and Charles tracts of equal acreage; (4) both tracts had been farmed by Charles’ father for the benefit of Carrie and Charles; or, (5) the possession of the strip throughout the years by the Moseses and plaintiffs was permissive.

In Slentz v. Cherokee Enterprises, Inc., supra, this court recently had' occasion to review in detail the authorities and law applicable to a claim of adverse possession arising from a boundary fence being located on other than the true property line. The authorities set forth in Slentz are controlling in this case and govern its disposition.

“In determining the character of the possession, the important factor is, not whether the true line is known or whether there is a mistake as to the boundary, since the location of a fence beyond the true boundary line is usually due to mistake, but it is the intent with which the boundary fence is built and the unequivocal character of the claim made thereafter, which is decisive of the question. ... In short, the determining factor is not what the encroaching owner knew about the true boundary line, but what he intended to unequivocally claim was his boundary line.” Bell v. Barrett, 76 S.W.2d 394, 396-97[3] (Mo.1934).

The judgment is reversed, and the case remanded with directions that the title to the strip be quieted in the plaintiffs and they be granted the equitable relief against the defendants.

All concur.

      . Robert Frost, Mending Wall (1914).

      . The partition decree described each tract by government subdivision and as “containing 20 acres more or less.” (emphasis added)


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Leslie Wen PHILLIPS, Appellant.
    No. 9878.
    Missouri Court of Appeals, Springfield District.
    Jan. 20, 1976.

      John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    O. J. Taylor, Ronald Baird, Taylor, Stafford & Gannaway, Springfield, for appellant.
    Before BILLINGS, C. J, and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

The limited issue on appeal is the validity vel non of a search warrant issued by a judge of the Magistrate Court of Greene County upon the verified complaint (labeled “Application”) of the prosecuting attorney and an affidavit of an investigator in the prosecutor’s office. § 195.135-1; Rule 33.-01. The application and affidavit appear in extenso in the appendix to this opinion. Local police executed the warrant by entering Room 302 at the Holiday Inn in Springfield (Rule 33.02), and seized, inter alia, packets of heroin. Via motion to suppress (Rule 33.03) and continuing objections throughout the jury-waived trial, defendant sought to thwart introduction of the evidence obtained in execution of the search warrant. The motion and objections were overruled: the evidence was admitted. Defendant was found guilty of possessing heroin (§§ 195.017-2(3)(j) and 195.020) and sentenced to imprisonment for four years. § 195.200-1(1).

In judging of the validity of a search warrant, it is elementary that a reviewing court should consider only the information brought to the attention of the issuing magistrate in the form required by Rule 33.01. Evidence extraneous to that thus given the magistrate is to be ignored. Aguilar v. Texas, 378 U.S. 108, 109, n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723, 725, n. 1[1] (1964); 79 C.J.S. Searches and Seizures § 74f(l), p. 872.

Under the Fourth Amendment of the Constitution of the United States, whose proscriptions are enforced against the States through the Fourteenth Amendment [Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726, 738[7] (1963)], a magistrate “may not properly issue a warrant to search . . . unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough” (emphasis ours) [Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159, 162 (1933)], and the magistrate “should not accept without question the complainant’s mere conclusion . . . .” Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509[10] (1958). Nevertheless, “the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. . . . Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689[7] (1965).

“While a warrant may issue only upon a finding of ‘probable cause,’ ‘the term “probable cause” * * * means less than evidence which would justify condemnation,’ . . . and . a finding of ‘probable cause’ may rest upon evidence which is not legally competent in a criminal trial.” United States v. Ventresca, supra, 380 U.S. at 107, 85 S.Ct. at 745, 13 L.Ed.2d at 688[2, 3]. Therefore, hearsay may be the basis for issuance of a search warrant “so long as there was a substantial basis for crediting the hearsay.” Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (1960). However, as stated in the concurring opinion of Mr. Justice White in Spinelli v. United States, 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637, 649 (1969), “If the affidavit rests on hearsay — an informant’s report— what is necessary under Aguilar [supra] is one of two things: the informant must declare either (1) that he has himself seen or perceived the fact or facts asserted; or (2) that his information is hearsay, but there is good reason for believing it — perhaps one of the usual grounds for crediting hearsay information. The first presents few problems: since the report, although hearsay, purports to be first-hand observation, remaining doubt centers on the honesty of the informant, and that worry is dissipated by the [deposer’s] previous experience with the informant. The other basis for accepting the informant’s report is more complicated. But if, for example, the informer’s hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient.”

If, as here, the complaint and affidavit are based on hearsay information, the judge or magistrate before issuing the search warrant “must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances-from which the [deposers] concluded that the [unidentified] informant . . . was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead . . . as in this case, by an unidentified informant.” Aguilar v. Texas, supra, 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729[9].

Although several affidavits have been tested, in part, upon allegations that the informants had previously given correct information (e. g., Jones v. United States, supra, 362 U.S. at 268-269, 80 S.Ct. 725, 4 L.Ed.2d at 706-707), such averments are not absolutely essential. The final test is whether the present information, as reasonably corroborated by other matters within the deposer’s personal knowledge (Jones, supra, 362 U.S. at 269, 80 S.Ct. 725, 4 L.Ed.2d at 707[14]), is truthful or reliable. United States v. Harris, 403 U.S. 573, 581-582, 91 S.Ct. 2075, 29 L.Ed.2d 723, 733[8] (1971). Corroboration of the information through sources independent of the informant’s report may come from innocuous matters if they tend to reduce the chances of the information being simply a rumor or a reckless or prevaricating tale. Draper v. United States, 358 U.S. 307, 312-313, 79 S.Ct. 329, 3 L.Ed.2d 327, 332[4] (1959); State v. Wiley, 522 S.W.2d 281, 288[12] (Mo. banc 1975).

Nathanson v. United States, supra, 290 U.S. at 47, 54 S.Ct. 11, 78 L.Ed. at 162, holds that probable cause is not established by a complaint or affidavit for a search warrant which merely recites the affiant’s belief there is cause to search without stating facts upon which the belief is based. “A fortiori this is true of an affidavit which states only the belief of one not the affi-ant.” Jones v. United States, supra, 362 U.S. at 269, 80 S.Ct. at 735, 4 L.Ed.2d at 707[12],

As evidenced by the application and affidavit upon which the search warrant in this case was issued, the only stated basis for the prosecutor’s and the investigator’s belief that there was reason to search the premises in question, rested upon the hearsay belief and representation of an unidentified informant that “heroin is being held by Wynn Phillips, [the defendant, whose real name is Leslie Wen Phillips] and Steve Newton in Room 302, of the Holiday Inn, in Springfield.” The application and affidavit are devoid of any aver-ments indicating that defendant or Newton was personally or by reputation known to the deposers or to the unidentified informant as being persons ever previously involved with heroin or other controlled substances. Likewise, neither the application nor the affidavit purports to state any facts upon which the informant’s belief was based. More importantly, and contrary to Aguilar, supra, the application and affidavit omit recitation of a declaration, if any, by the alleged informant (1) that he had himself seen or perceived the facts asserted, or (2) that his information was based on hearsay and that, based on recounted facts and circumstances, there was good reason for believing it. Unlike the complaint filed in State v. Bradley, 485 S.W.2d 408, 411 (Mo.1972), it could not be reasonably certain to the magistrate in the instant cause, from a reading of the application and affidavit presented, that the unidentified informant spoke with personal knowledge and that his conclusion was not based on mere speculation or unfounded belief.

According to the application and affidavit, the only reasons given why credence should be accorded the tip was that deposers had “checked and found to be true” informant’s recountings that he had in the past provided information or work to a narcotics unit, that defendant was registered at the Holiday Inn, and that Newton lived in a certain house on Jean Street where described vehicles could be found parked. These representations do not contain any suggestion as to “the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were,” Aguilar, supra, or why he concluded that defendant and Newton were in possession of heroin at the motel. The representations which were “checked and found to be true” were wholly collateral and innocuous matters as to the conclusion that a crime was probably being committed at the place stated. But granted, arguendo, these collateral and innocuous matters (terribly scant when compared to those relied on in State v. Wiley, supra) could serve some corroborative purpose, they would only corroborate informant’s truthfulness in the particular areas stated and that he was, generally, an honest and truthful person. However, if the informant’s information (for all the issuing magistrate knew) was not based on his personal knowledge but was based on hearsay from yet another unknown and unidentified person, there was nothing presented by the deposers from which the issuing magistrate could find “reasonable grounds” or “probable cause” for crediting the hearsay. The warrant was improvidently issued and the judgment nisi is reversed.

All concur.

APPENDIX

"APPLICATION FOR SEARCH WARRANT

STATE OF MISSOURI,)

) ss.

COUNTY OF GREENE )

IN THE MAGISTRATE COURT OF GREENE COUNTY, MISSOURI

Charles LeCompte, being duly sworn, disposes [sic] and states there [sic] heretofore, to-wit: on the 13th day of April, 1974, in the County of Greene, State of Missouri, to [sic] following controlled substance, to-wit heroin is being held by Wynn Phillips and Steve Newton in the following described place: Room 302, of the Holiday Inn, in Springfield, Greene County, Missouri, and that facts personally known to this affiant which causes [sic] him to so believe that are that a reliable confidential informant who has in the past told me that he gave information to the Springfield Greene County Narcotics Unit which fact I checked and found to be true and who has in the past told me that Wynn Phillips was registered at the Holiday Inn in Springfield, Missouri which fact I checked and found to be true and has informed me and Clyde Angle, as further explained in the affidavit of Clyde Angle and attached to this Application for Search Warrant, that heroin was being held by Wynn Phillips and Steve Newton at the above described location. Wherefore this affiant prays that a search warrant for the search of the above premises and the seizure of heroin be issued by this court.

/s/ Charles LeCompte

Subscribed and sworn to before me this 13th day of April. 1974.

/s/ Louren G. Davidson

Magistrate Judge Division 2 Greene County, Missouri”

“AFFIDAVIT FOR SEARCH WARRANT

Clyde Angle being duly sworn on his oath states as follows:

On 12 April, 1974, a reliable informant, who has in the past told me that Wynn Phillips had registered at the Holiday Inn in Springfield, Missouri, in Room 302 on 11 April, 1974, which information I checked and found to be true and who told me that he worked as an informant for the Springfield Greene County Narcotics Unit, which information I checked and found to be true, and who told me that Steve Newton lived in a house on Jean Street, Springfield, Greene County, Missouri, and described to me how to get to that house and told me it would be a white house and that either a tan Pontiac Firebird or a red Toyota would be parked in the driveway which information I checked and found to be true, and has told me that heroin was being held by Wynn Phillips and Steve Newton in Room 302 of the Holiday Inn, Springfield, Greene County, Missouri.

/s/ Clyde Angle CLYDE ANGLE

Subscribed and sworn to before me this 13th day of April. 1974.

/s/ Louren G. Davidson

Magistrate Judge Div. 2 Greene County, Mo.”

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Criminal Procedure, V.A.M.R.

      . Neither Draper nor Wiley was concerned with the validity of search warrants but with kindred issues as to whether “reasonable grounds” and “probable cause” existed for arresting without warrants. The arrest in Draper was based upon information coming to the arresting officers from a named and known “special employee” of the Bureau of Narcotics. In Wiley, the arrests were based on two telephone tips given by an anonymous caller.

      . Newton was not at the motel when the search warrant was executed.

      . With no indication that the work or information provided the unit had proved reliable.


text:
    Rockford OWEN, Respondent, v. Robert J. SMITH, Guardian of the Estate of Faye J. Frye, Incompetent, Appellant.
    No. 9711.
    Missouri Court of Appeals, Springfield District.
    Jan. 21, 1976.

      John C. Crow, Hamra & Crow, Springfield, for appellant.
    Rolland L. Comstock by Jerry D. Mee, Springfield, for respondent.
   PER CURIAM.

Plaintiff Rockford Owen (“Rockford”) brought this action to impress a constructive trust on certain land (“the lot”) in Springfield, Missouri. The legal title to the lot is in Faye J. Frye (“Faye”). After she obtained the title, and prior to the institution of the action, Faye was declared to be an incompetent person. Defendant is the guardian of Faye’s estate. The trial court found the issues in favor of plaintiff, the decree reciting “that there is hereby impressed upon [the lot] a trust to the extent of $2,000.” Defendant appeals.

The petition alleged that on January 15, 1971, Faye obtained title to the lot from a public agency; that Rockford “provided the full $2,000 consideration” which Faye paid as the purchase price; that Rockford and Faye agreed that legal title to the lot would be taken in the name of Rockford; that, contrary to the agreement, Faye took title in her name; that Rockford, after discovering Faye took the title, demanded that she transfer it to him but that she refused to do so.

Neither side invoked Rule 73.01 V.A.M.R. by requesting findings of fact or a statement of the grounds for the trial court’s decision and the court made none.

At the trial, counsel for defendant objected to the giving of testimony by Rockford. The objection was based on that portion of § 491.010 V.A.M.S., “the dead man’s statute,” which deals with insane persons. Although the objection did not receive a ruling, Rockford’s counsel apparently felt it was well taken and made no offer of proof.

To establish a constructive trust, an extraordinary degree of proof is required, and vague or shadowy evidence or a preponderance of the evidence is not sufficient. Aronson v. Spitcaufsky, 260 S.W.2d 548, 549[1] (Mo.1953). The evidence must be so unquestionable in its character, so clear, cogent, and convincing that no reasonable doubt can be entertained as to its truth and the existence of the trust. Thomason v. Beery, 361 Mo. 424, 235 S.W.2d 308, 312[5] (1950). The court must be “completely and fully convinced that a trust was created.” Gardner v. Bernard, 401 S.W.2d 415, 423[18] (Mo.1966). A higher degree of proof is necessary to establish a constructive trust than to establish fraud. Tobin v. Wood, 159 S.W.2d 287, 290[7] (Mo.1942); Aronson, supra, 260 S.W.2d 548 at p. 549. The stringency of the proof requirements has been attributed to the public policy in favor of the security of titles and the reluctance of courts to disturb record or other apparent ownership. Bogert, Law of Trusts, § -78, p. 211 (4th ed.)

“To follow money into land, and impress the land with a trust, the money must be distinctly traced, and clearly proved, to have been invested in the land. It must be clear that the lands have been paid for out of the trust money.” Phillips v. Overfield, 100 Mo. 466, 13 S.W. 705, 706 (1890). See also Dailey v. Dailey, 125 Mo. 96, 28 S.W. 330, 331 (1894); Clay v. Walker, 6 S.W.2d 961, 964[4—6] (Mo.App.1928); Restatement (Second) of Trusts § 202, p. 454, Comment o.

“Where a person wrongfully disposes of the property of another, the other is not entitled to priority over the general creditors of the wrongdoer merely because of the character of the wrong done to him. This is true whether or not the wrongdoer is in a fiduciary relation to the other. . The claimant must prove not only that the wrongdoer once had property legally or equitably belonging to him, but that he still holds the property or property which is in whole or in part its product.” (Emphasis supplied) Restatement of Restitution § 215, p. 866. See also 76 Am.Jur.2d Trusts § 252, p. 474.

The application of the foregoing principles to the following evidence requires reversal.

On February 18, 1966, Rockford was declared to be an incompetent person and a guardian was appointed.

On July 26, 1966 Rockford married Faye.

On May 26, 1967, Rockford and Faye were divorced. Although no longer married, they continued to live together in an apartment house owned by Faye. Until she was declared incompetent, Faye received rent from tenants.

On July 9,1969, Rockford was restored to competency and his guardianship was removed.

On July 14, 1969, Rockford gave a receipt to his guardian, showing payment of $2,180.47 consisting of $164.64 cash, $1,000 represented by Missouri Savings & Loan Account No. 8079, and $1,015.83 represented by United Savings & Loan Account No. 4224. Rockford deposited $1,015.83 in United Account No. 4386 but thereafter, and on the same day, withdrew it and received a check in that amount from United.

On July 15, 1969, Rockford received a check in the amount of $1,000 representing Account No. 8079. The two checks, each bearing Rockford’s endorsement, were endorsed by the Citizens Bank.

Also on July 15,1969, Rockford and Faye jointly leased safety deposit box No. 5367 at the Citizens Bank. The lease provided that the bank would allow no person access to the box except the lessees or their authorized representatives, and that each of the lessees “shall have full access to and the control of the contents of the box” without further authority. Martha Shinn, an employee of Citizens Bank, was present at the leasing of the box but did not know what, if anything, was placed in the box on July 15, 1969.

On September 4, 1969, Faye visited the box.

On September 30, 1969, Faye visited the box.

On February 13, 1970, Faye visited the box.

On September 8, 1970, Faye signed a form provided by the public agency from which the lot was purchased. This form recited that Faye proposed to purchase the lot, that its value was $2,000, that it adjoined Faye’s other real estate (the apartment house) and that she needed the lot for parking; that “sources and amount of cash available” to Faye included “checking” in the amount of $850.00 and “savings” in the amount of $5,000. The Citizens Bank of Springfield and two Arkansas banks were listed, though it is not clear which account was in which bank. The form also listed bonds in the amount of $1,400 as another asset of Faye which was “readily salable.”

On December 10, 1970, Faye entered into a contract with the public agency for the sale of the lot to Faye for $2,000.

On January 15, 1971, at 1:42 p. m. Faye visited the box. Faye, as remitter, gave the public agency, as payee, a cashier’s check drawn on Citizens Bank in the amount of $2,000. The public agency executed and delivered to Faye its “special warranty deed” to the lot. Faye was the sole grantee. The consideration was $2,000.

In March, 1972 Faye had a conversation with Rockford’s sister. According to the sister, Faye said that the reason Rockford was leaving was because he had been “bugging” Faye for his money and Faye could not pay him the money overnight. “Faye said that the property belonged to her. Rockford had spent money on the property and he wanted his money back.” The witness did not know how much money Faye was talking about. It was the witness’s understanding that Rockford had put up some money for the remodeling of the property. “The only thing I know is prior to this they had done some remodeling and they had accumulated some lots during their marriage. That’s all I know.”

On April 17,1972, Rockford, accompanied by his witness Delo, visited the safety deposit box. According to Delo, Rockford opened the box and there was nothing in it.

On May 5,1972, Faye was adjudicated an incompetent and a guardian was appointed. On an unspecified date thereafter Rockford delivered to Faye’s guardian (defendant) a “stack of abstracts” and “quite a few papers” including the deed to the lot. At the time of the delivery of these items, Rockford made no statement “that this was his property or that he had any claim to it.”

It seems reasonable to assume, in light of its decree, that the trial court found that Faye used $2,000 of Rockford’s money in paying the public agency for the lot. This court finds that the evidence was not “so clear, cogent, unequivocal, and positive as to banish doubt” that such was the situation.

It appears that on July 14, 1969, Rockford, by cashing checks at the Citizens Bank, was in possession of over $2,000. On that date Rockford and Faye jointly leased the safety deposit box. But there was no showing that on that date, or any date, money in any amount or any other thing was placed in or taken out of the safety deposit box.

Faye visited the box on four occasions after July 14,1969. The last such visit took place on the day she paid for the lot and received the deed. But there was no showing what, if anything, Faye put in or took out of the box on that day or on any other day. Indeed there is no showing whether Faye’s visit to the box on January 15,1971, took place before or after she obtained the $2,000 cashier’s check, dated the same day, with which she paid the purchase price.

Assuming the truthfulness of witness Delo’s testimony that the box was empty when Rockford opened it on April 17, 1972, Faye must have taken something out of the box on January 15,1971, since obviously she left nothing in it and otherwise her visit would have been without purpose.

If it be conceded that Faye took something out of the box on that date, what was it? When was it placed in the box? Was it money? If so, how much money? Whose money? If it was money, what did Faye do with it? Did she use it to purchase or to apply on the purchase of the cashier’s check dated January 15, 1971?

In short, there is no showing by the degree of proof required that Faye, with or without Rockford’s consent, used $2,000 or any other amount of Rockford’s money to pay all or any portion of the price of the lot.

Nor are the deficiencies in the evidence cured by the March 1972 statements attributed to Faye. Those statements, if admissible at all, are too vague and indefinite, even in light of the other evidence, to support the decree.

Although the evidence demonstrates the possibility that Faye wrongfully appropriated $2,000 of Rockford’s money and used it to buy the lot, this court is not “completely and fully convinced.” Gardner v. Bernard, supra, 401 S.W.2d at 423[18],

The judgment is reversed.

All of the judges concur, except STONE, J., who did not sit or participate in determination of this cause.

      . § 491.010 provides, in pertinent part “. . . [In] actions where one of the original parties to the contract or cause of action in issue and on trial is dead or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify ... in his own favor . .” (Emphasis supplied)