author: STEPHENSON, Justice.

text:
    Elaine Mathes STEWART, Appellant, v. Lena MATHES, Appellee.
    No. 7721.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 25, 1975.

      Leon Pettis, Beaumont, Leonard Stola-roff, Houston, for appellant.
    Ernest Browne, Sr., Gilbert I. Low, Beaumont, for appellee.
   STEPHENSON, Justice.

The opinion of this Court handed down on August 28, 1975, is withdrawn and the following substituted in its place.

This is an appeal from a judgment of the County Court of Jefferson County that plaintiff take nothing. Trial was before the court, sitting in probate, and the parties will be referred to here by name.

James Carroll Mathes died intestate in Jefferson County, and administration was taken out on his estate. Elaine Mathes Stewart filed a petition in that estate asking that she be declared a daughter of the deceased. Later pleadings filed showed her claim was based upon the theory of “adoption by estoppel”.

An agreement was made to settle her claim against the estate for the sum of $22,500. This settlement was composed of communications between the attorneys of the respective parties. Before actual payment of the money was made, Elaine Math-es Stewart informed her attorneys that she did not desire to go through with the settlement.

Lena Mathes, administratrix of this estate, filed a motion for summary judgment based upon the compromise agreement which was denied by the court. The court then set a hearing upon the issue of the compromise agreement. Evidence was heard and judgment was then rendered upholding the validity of such settlement.

The material facts of this case are undisputed. The parties did agree to a settlement of this ease, but Elaine Mathes Stewart changed her mind and the trial court was informed that she no longer consented to the agreement. The issue of heirship was not litigated in the trial court. The only evidence heard was upon the question as to whether or not the parties had agreed at an earlier time to a settlement of this case. Stewart at no point has asserted that her attorney did not have authority to enter into any settlement agreement. The record indicates that Stewart’s attorney had such authority, and her attorney admitted such upon oral argument.

We are thus presented with the issue of whether a party to a settlement agreement can withdraw her consent prior to the time that a judgment is rendered upon that agreement.

While conceding not only that there was authority to enter into a compromise agreement but also that a valid agreement was previously made, it is Stewart’s contention that such an agreement cannot, under the law of this state, furnish the basis for a judgment because consent was withdrawn before the judgment was entered and that the trial court knew this fact. Mathes basically asserts that the parties reached a valid settlement agreement and that it was enforceable as such on the basis of contract law between the parties.

In support of her position, Stewart relies primarily on Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). At 291, the Supreme Court held that:

“A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.”

We have no dispute with that particular rule of law and other cases have supported that proposition. W. L. Moody & Company, Bankers v. Yarbrough, 510 S.W.2d 396, 399 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.); Farr v. McKinzie, 477 S.W.2d 672, 676 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). But we do not believe that Burnaman is disposi-tive of the issue before us. An examination of that opinion demonstrates that the Court there was holding the consent judgment invalid and not the settlement agreement. At 292, the Court further made the following statement which is pertinent to our situation:

“It follows that the reversal of the judgment should be without prejudice to the right of defendants to plead the agreement in bar of plaintiff’s suit and without prejudice also to plaintiff’s right to avoid the agreement by pleading that her attorney was without authority to make it.” (Emphasis supplied.)

The import of Burnaman is that while a party can enter into a valid and binding settlement agreement pending disposition of the case, a trial court cannot enter into a consent judgment which incorporates the terms of that agreement if one of the parties thereto withdraws consent prior to entry of the judgment. This does not render the settlement agreement or its enforceability invalid — only a judgment entered in the above manner. See Beckham v. Reed, Kapt. H. Krohn, G.M.B.H., 217 F.Supp. 749, 750 (S.D.Tex.1963) which also questions the application of Burnaman in the manner urged by Stewart.

Mathes in the court below did not request entry of a consent judgment. She sought enforcement of the settlement agreement and the rendition of a judgment based upon that “contract.” The trial court did not hear evidence and determine that Elaine Mathes Stewart was not an heir. It heard evidence and decided that she had entered into a valid and binding settlement agreement.

Consent judgments are subject to the law of contracts. Edwards v. Glifford, 137 Tex. 559, 155 S.W.2d 786 (1941). We see no reason in not applying the law of contracts to settlement agreements themselves. As in this case, there was an offer, an acceptance, and consideration. This application has been widely and generally accepted and logic dictates that it should. See: Parriss v. Jewell, 57 Tex.Civ.App. 199, 122 S.W. 399 (Austin 1909, writ ref’d), in which it is held that withdrawal of a will contest is sufficient consideration to permit settlement of a suit. See also 15A C.J.S. Compromise & Settlement § 8 at 194 (1967); 15 Am.Jur.2d Compromise & Settlement § 6 at 940 (1964). No onerous burden is placed on the recipient of the offer. That party merely has to decide whether to accept that offer, but once accepted, she should not be permitted to withdraw from the contract arbitrarily. Once the party elects to accept the offer, the election should be binding. Mubi v. Broomfield, 108 Ariz. 39, 492 P.2d 700 (1972); Landau v. St. Louis Public Service Company, 364 Mo. 1134, 273 S.W.2d 255 (1954); Cunningham v. Iowa-Illinois Gas & Electric Co., 55 N.W.2d 552 (Iowa 1952); and Benson v. Chicago & N.W. Ry., 113 Iowa 179, 84 N.W. 1028 (1901). See also University Computing Company v. Leader Corporation, 371 F.Supp. 86 (N.D.Tex.1974).

The party making an offer which is accepted is then permitted to enforce the agreement in a suit upon the contract, either for breach or for specific performance. Annot., 94 A.L.R.2d 506. This holding is not repugnant to the law of this State. See Alexander v. Handley, 136 Tex. 110, 146 S.W.2d 740 (1941); Ferguson-McKinney Dry Goods Co. v. Garrett, 252 S.W. 738 (Tex.Comm.App.1923, opinion adopted); and Mapp v. Snitker, 449 S.W.2d 857 (Tex.Civ.App.—Amarillo 1969, no writ), for examples of Texas cases which have enforced settlement agreements.

A contrary ruling on the facts of this case would place a heavy and unfair burden on the party who has relied on the opposing party’s acceptance of the settlement agreement only to find that the party subsequently withdraws such consent at a time of their convenience. Moreover, we take judicial knowledge of the fact that many settlement agreements are entered into by the parties during the progress of contested trials. A party should not be permitted to enter into such a contract, perhaps to avoid an unexpected development during the trial, and then be allowed to repudiate the agreement before the written judgment can be prepared for entry. Fairness to all of the parties, as well as conservation of judicial time, energy and expense is achieved by holding the parties to the contract of settlement which they made. The benefits to the party which later rejects the agreement are outweighed by the burdens which would be placed upon the offerer of the compromise.

The trial court did not err in entering judgment for Mathes in a suit to enforce the contractual settlement agreement.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gus DANIELS, d/b/a Pronto Drive In Grocery, Appellant, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellee.
    No. 1038.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 30, 1975.

      J. Mack Ausburn, San Antonio, for appellant.
    Max P. Flusche, Jr., Austin, for appellee.
   OPINION

PER CURIAM.

This is an appeal from an order by the Texas Alcoholic Beverage Commission can-celling the appellant’s Beer Retailer’s Off Premise License & Wine Only Package Store Permit, which said order was affirmed by the 139th District Court of Hidal-go County, Texas.

Pursuant to Rule 386, T.R.C.P., appellant has filed his motion for extension of time to file the transcript and statement of facts, asking that the time for filing be extended to September 8, 1975. The transcript tendered to the Clerk shows that final judgment was rendered on June 20, 1975. The judgment contained a proper notice of appeal. No motion for new trial was filed, but on July 21, 1975 there was a timely filed cash deposit in lieu of bond. The motion for extension of time to file the record was filed with this Court on September 3,1975, the 75th day after the judgment was rendered.

Under Rule 386, T.R.C.P., this Court is required to determine whether or not there was “good cause” for the failure of appellant to timely file the record. In deciding the question of “good cause”, the Court must decide the preliminary question of whether the request by appellant to the district clerk to prepare the transcript was made within a reasonable time after notice of appeal was given. Patterson v. Hall, 430 S.W.2d 483 (Tex.Sup.1968). The appellant must “promptly” request the transcript, a term which means a reasonable time when all attendant facts and circumstances surrounding the act to be performed are considered. Patterson v. Hall, supra.

In this case, the certificate of the court reporter was signed on June 30,1975, showing that the statement of facts had been prepared and delivered to appellant’s attorney 10 days after the judgment of the trial court was signed and rendered. However, the record reveals that the appellant’s request for the transcript was not given to the district clerk until August 19, 1975, the last day the record was due to be filed in this Court. The motion for extension of time states only that “the complete transcript, along with the statement of facts can be filed by September 8, 1975.” Other than stating that present counsel was retained after the trial counsel had been discharged without any showing when this took place, the motion does not show any reason for the delay in ordering the transcript by the appellant until the 60th day, especially since the statement of facts was prepared and 50 days prior to the time the appellant made the request.

We hold that appellant, by delaying until the 60th day after the notice of appeal was given before requesting the preparation of the transcript, has failed to show that he “promptly” requested the transcript. Thus, appellant has not shown that “good cause” exists for his failure to timely file the record in this Court. See Lyda/Lott v. Stressteel Corporation, 469 S.W.2d 321 (Tex.Civ.App.—San Antonio 1971, dism’d, mand. overruled); Gutierrez v. Casanova, 450 S.W.2d 771 (Tex.Civ.App.—San Antonio 1970, no writ); Vaughan v. Commercial Insurance Company, 476 S.W.2d 428 (Tex.Civ.App.—Austin 1972, no writ); Kunkel v. Bohuslav, 497 S.W.2d 106 (Tex.Civ.App.—Austin 1973, no writ).

Appellant states that appellee has no objection to the granting of the motion for extension of time, but as was held in Consolidated Casualty Insurance Company v. Wade, 373 S.W.2d 841 (Tex.Civ.App.—Corpus Christi 1963, writ dism’d), waiver or stipulation of counsel to extend the 60-day period for filing the record, standing alone, is not sufficient reason for granting an extension of time to file the record as required by Rule 386.

The motion for extension of time to file the record is denied. The appeal is dismissed.


author: O’QUINN, Justice.

text:
    Ernest KRUEGER and Bruce C. Hobbs, d/b/a the Performance Shop, Appellants, v. TEXAS STATE BANK, Appellee.
    No. 12239.
    Court of Civil Appeals of Texas, Austin.
    Oct. 1, 1975.
    Rehearing Denied Oct. 22, 1975.
    Philip F. Patman, Patman <& Patman, Austin, for appellants.
    William H. Bingham, McGinnis, Lo-chridge & Kilgore, Austin, for appellee.
   O’QUINN, Justice.

The controlling question in this appeal is whether mechanics, claiming a lien on a motor vehicle in their possession under Articles 5503 and 5506, Vernon’s Tex.Civ.Sts., are entitled to priority over a prior secured party, in this ease the bank, that has perfected its security interest on the certificate of title to the vehicle.

We hold that under section 9.310 of the Texas Business and Commerce Code the mechanic’s lien is entitled to priority. Gulf Coast State Bank v. Nelms, 525 S.W.2d 866 (Tex.Sup.1975).

The registered owner of the vehicle left it with appellants, Ernest Krueger and Bruce C. Hobbs, doing business as The Performance Shop, in May of 1973 for extensive repairs and additional work, which appellants completed and made a charge, found by the trial court to be reasonable and customary, in the amount of $1,152.38. Pri- or to repairs on the vehicle, Texas State Bank had entered into a security agreement with the owner and complied with the Texas Certificate of Title Act to record its lien in the records of the Texas Highway Department. The unpaid balance of the obligation of the owner to the bank, in October of 1973, amounted to $2,846.29.

In August and September of 1973 appellants sought to comply with the Texas Abandoned Motor Vehicle Act (Art. 6687-9; Acts 1971, 62nd Leg., p. 2436, ch. 784, art. I, eff. Aug. 30, 1971). As required by the statute, the Police Department of the City of Austin notified Texas State Bank of the proceedings. Prior to the date on which the vehicle could be auctioned under the statute, Texas State Bank instituted this suit.

The bank sued initially on the promissory note, given by the registered owner of the vehicle, for the sum of $2,846.29, but promptly amended, joining appellants, and sought possession of the vehicle and foreclosure of the bank’s purchase money lien. The bank also applied for a restraining order and asserted that it held a “valid, first and superior lien.” The trial court enjoined appellants and the City of Austin from further action in proceedings under the Texas Abandoned Motor Vehicle Act pending trial on the merits.

The parties joined issue on several matters, but the principal and controlling issue emerged from the claim of each party to priority of lien over the lien of the opposing party.

The trial court entered judgment August 24, 1974, awarding Texas State Bank judgment in the sum of $2,846.29, together with attorney’s fees, costs, and interest. The judgment ordered foreclosure of the bank’s lien on the motor vehicle and permanently enjoined appellants and the City of Austin from proceeding further under the Abandoned Motor Vehicle Act. The court also adjudged the bank’s lien “superior in all things to any rights” of appellants, acting under the Texas Abandoned Motor Vehicle Act ... or the mechanic’s lien laws of the State of Texas . . .” Appellants were ordered to surrender possession of the vehicle and the bank was authorized to proceed with sale of the automobile at private sale and file report of sale with the court.

In holding that the bank’s prior perfected security interest in the vehicle took priority over the mechanic’s lien claimed under Articles 5503 and 5506 the trial court was in error, and the judgment must be reversed. Priority of mechanic’s liens is specifically covered by section 9.310 of the Texas Business and Commerce Code. That section provides:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.” (Emphasis supplied)

In Gulf Coast State Bank v. Nelms, supra, the Supreme Court stated, “The intent of § 9.310 is to give a lien arising from work enhancing or preserving the value of property priority over a prior perfected security interest, except in jurisdictions where the mechanic’s lien statutes expressly declare the lien to be subordinate.” (Emphasis by Court) The Court held “. that § 9.310 requires that we refer to Articles 5503 and 5506 which are the statutes creating the mechanic’s and artisan’s lien, to determine whether they ‘expressly provide otherwise.’ ” (Emphasis by Court) The Court concluded, “. . . and we hold that Articles 5503 & 5506 do not ‘expressly provide’ that an artisan’s or mechanic’s lien is subordinate to a prior perfected security interest.”

We hold that appellants’ possessory mechanic’s lien is entitled to priority over Texas State Bank’s perfected security interest in the motor vehicle.

The judgment of the trial court is reversed. The cause is remanded to the trial court for such further proceedings, administrative or otherwise, as may be appropriate to protect and enforce the possessory mechanic’s lien of appellants and its priority over Texas State Bank’s security interest.

Reversed and remanded.


text:
    STATE BANKING BOARD et al., Appellants, v. PROPOSED HOUSTON BANK OF HOUSTON et al., Appellees.
    No. 7716.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 16, 1975.
    John Banks, Austin, James T. Wright, Houston, for appellants.
    Arthur Mitchell, Austin, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order of the District Court ordering the State Banking Board to grant a charter to the Proposed Houston General Bank of Houston, Texas (Proposed Bank). The State Banking Board had denied the application for a charter on two grounds, that there was “no public necessity” for the bank and “no volume of business such as to indicate a profitable operation.” Six banks located in the area of the Proposed Bank intervened.

The primary point of error is that the trial court erred in entering its judgment, because the order of the State Banking Board was reasonably supported by substantial evidence. It is agreed that this case is controlled by the “substantial evidence rule.” In 1963, the Supreme Court of Texas held that a portion of the Banking Code making an appeal to the District Court a trial de novo under the preponderance of the evidence rule, to be unconstitutional. Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427 (Tex.1963). In that opinion the statements are made that the Legislature originally considered each applicant for a bank charter and passed special laws to create individual banks. That when the business of the Legislature became too great the duty of granting charters was delegated to an administrative agency. That the Legislature set some particular elements necessary to get a charter including “public necessity.” The determination of “public necessity” by the State Banking Board involves a determination of public policy. That public policy is a matter of legislative discretion which cannot be constitutionally given to the judiciary. Article II, § 1 of the Constitution of Texas, providing for the separation of powers, is cited by the Supreme Court as authority for this decision.

In the District Court, the Proposed Bank had the burden of proving that the order of the State Banking Board denying the charter was not reasonably supported by substantial evidence. In passing upon this appeal, this court must first determine the meaning of “substantial evidence” and then consider the evidence introduced in the trial court.

Apparently the term “substantial evidence” is difficult to precisely define. We have been given certain guidelines by the Supreme Court which are somewhat helpful. In Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441 (1946) an earlier Supreme Court opinion in Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029 (1942) is quoted in part as follows:

“Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness to that introduced by the other. After all, the court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. . . . (Italics ours.)”

We have carefully considered the record as a whole, including a statement of facts containing 1,463 pages and more than 100 exhibits. The testimony of witnesses called by the Proposed Bank occupy more than half of the statement of facts and make a good case for granting a charter. Undoubtedly, that evidence would support an order by the State Banking Board granting a charter. However, that is not the situation facing this court. This statement of facts also contains the testimony of four expert witnesses called by the State Banking Board and Intervenors. There is sharp disagreement between these four witnesses on one hand and the witnesses called by the Proposed Bank on the other and as to the location and size of the primary trade area. Those differences of opinion arose over whether the Katy Freeway and the Katy Railroad tracks would act as barriers, and over the preference of people to bank at a location between them and downtown Houston. As a result of this disagreement the primary trade area would be reduced from 52,000 as urged by the Proposed Bank to 27,000 or 28,000 as contended by the State Banking Board and Intervenors. There was sharp disagreement between the witnesses on both sides as to the banking habits of residents of the area, the banking habits of the industry in the area, the picture of competition among the banks and savings and loans in the area, as to the growth of the loan demand as compared to the growth of deposits in the area, and as to the amount of growth and room for growth. Using the guidelines given to us by the Supreme Court of Texas, as outlined above, there is substantial evidence in this court to support the findings made by the State Banking Board, that there is no public necessity for the Proposed Bank, and not sufficient business in the area to indicate a profitable operation for the Proposed Bank.

The judgment of the trial court is reversed and judgment is here rendered that the order of the State Banking Board denying the proposed bank charter is reinstated and affirmed.

Reversed and rendered.


author: ROBERTS, Judge.

text:
    Ex parte O’Dell Hargrow HILL.
    No. 50393.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Ray J. McQuary, Rosharon, for appellant.
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., in which petitioner seeks his release from confinement in the Texas Department of Corrections.

On January 17, 1974, petitioner was indicted by the grand jury of Limestone County, Texas, in Cause No. 5213 for the offense of attempt to commit burglary. Petitioner was also indicted on that date in Cause No. 5218 for the offense of assault on a peace officer with intent to murder. On January 30, 1974, he waived a jury in both cases and entered pleas of guilty in both cases. In Cause No. 5213, attempt to commit burglary, punishment was assessed at five (5) years’ confinement in the Texas Department of Corrections. In Cause No. 5218, assault on a peace officer with intent to murder, the punishment was assessed at twenty-five (25) years’ confinement in the Texas Department of Corrections.

Pursuant to our Order of April 2, 1975, this application is limited to a consideration of Cause No. 5213 alone.

Petitioner contends, and the State concedes, that his sentence in this cause is void. Article 1404-a, Vernon’s Ann.P.C. (1925) provided that punishment for this offense should be not less than two (2) nor more than four (4) years. However, after finding petitioner guilty, the trial court set his punishment at five years’ imprisonment. Subsequently, the court sentenced petitioner to serve not less than two (2) nor more than five (5) years.

Clearly, the sentence was improper and void. Cf. Gonzales v. State, 527 S.W.2d 540 (No. 50,514, Tex.Cr.App., delivered September 17, 1975). In Ex Parte Murillo, 528 S.W.2d 127 (Tex.Cr.App., delivered June 11, 1975), rehearing denied this day, we held for the first time that a void sentence raised initially on habeas corpus could be remanded for resentencing. Petitioner now urges that Murillo was incorrectly decided.

We reject petitioner’s contentions. Article 11.07, Sec. 3, Vernon’s Ann.C.C.P., provides in part:

“The Court of Criminal Appeals may deny relief upon the findings and conclusions of the hearing judge without docketing or may direct that the cause be docketed and heard as though originally presented to said court or as an appeal. Upon reviewing the record the court shall enter its judgment remanding the petitioner to custody or ordering his release, as the law and facts may justify. The mandate of the court shall issue to the court issuing the writ, as in other criminal cases.”

We first observe that this statute gives the Court the express power to treat the cause “as an appeal.” Moreover, the statute requires us to remand the petitioner to custody or order his release “as the law and facts may justify.” Finally, the statute indicates that the mandate shall issue “as in other criminal cases.”

In Ex Parte Alegria, 464 S.W.2d 868, 871 (Tex.Cr.App.1971), we unanimously held that this Court has authority in a habeas corpus proceeding to decide whether the petitioner is eligible for parole, even though a determination of the writ on that issue alone does not result in “remanding the petitioner to custody or ordering his release." Art. 11.07, supra. There the facts of the case and the law, as defined in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), justified the granting of the writ.

Similarly, we conclude in this case that the law and facts justify a partial granting of the writ. It is obvious here, as in Ex Parte Murillo, supra, that the trial court intended to assess a punishment above the minimum allowable for the offense. And it is clear that if this case were before us on direct appeal, we would be required to reverse and remand for a reassessment of punishment only. Baker v. State, 437 S.W.2d 825 (Tex.Cr.App.1969); Brumfield v. State, 445 S.W.2d 732, 740 (Tex.Cr.App.1969); Saunders v. State, 511 S.W.2d 281 (Tex.Cr.App.1974); Gonzales v. State, supra. Compare Garcia v. State, 499 S.W.2d 126 (Tex.Cr.App.1973).

We can discern no reason why the same relief should not be available in a habeas corpus action. Indeed, the language of Art. 11.07, supra, would seem to encourage it. Cf. Ex Parte Alegria, supra.

We therefore hold that where a void sentence is attacked on habeas corpus, this Court has the power, in those cases where the court has assessed punishment, to remand the petitioner to the trial court for the assessment of a proper punishment and sentence. Art. 11.07, supra.

We recognize that this holding is inconsistent with the decisions in Ex Parte Er win, 145 Tex.Cr.R. 504, 170 S.W.2d 226 (1943), and its offspring. Those cases hold that a successful habeas corpus attack upon a void sentence entitles a prisoner to release upon a showing that he has served the minimum penalty affixed by law to the offense.

In Erwin, as in this case, the trial court pronounced an indeterminate sentence, “fixing in such sentence as the minimum the time provided by law as the lowest term . and as the maximum the term stated in the verdict.” Art. 42.09, Sec. 1, V.A.C.C.P. The trial court in Erwin correctly affixed the minimum but assessed a maximum that was not within the statutory range. On appeal, this Court held that in such a situation a habeas corpus petitioner was entitled to discharge if he had served the minimum term.

The Erwin Court seems to have reasoned that since the minimum was valid, but the maximum was unauthorized, anything over the minimum was also unauthorized, and therefore unenforceable.

This analysis is simply not persuasive. It erroneously assumes that the error occurred at the time of the pronouncement of sentence, Art. 42.03, V.A.C.C.P., when in fact the error took place at the time punishment was assessed. Art. 37.07, V.A.C.C.P. Because of the Legislature’s adoption of a bifurcated system of criminal trials, this Court is empowered to mandate a reversal and remand only as to the punishment phase where the court assesses punishment. Cf. Brumfield v. State, supra. We hold today, as we did in Murillo, that such a partial remand is also an available remedy in habeas corpus actions.

Accordingly, the holding in Erwin is expressly overruled. It follows that the petitioner must be remanded to the trial court for a proper assessment of his punishment by the trial judge.

It is so ordered.

      . It is uncontroverted that petitioner made no request that he be punished under the new Penal Code. See Gonzales v. State, 527 S.W.2d 540 (No. 50,514, Tex.Cr.App., delivered September 17, 1975).

      . To the extent that they follow or approve of the holding in Ex Parte Erwin, supra, the following cases are also overruled: Ex Parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336 (1943); Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344 (1943); Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493 (1943); Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588 (1947); Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250 (1947); Ex Parte Castleberry, 152 Tex.Cr.R. 583, 216 S.W.2d 584 (1949); Ex Parte Geisling, 243 S.W.2d 833 (Tex.Cr.App.1951); Ex Parte Milina, 156 Tex.Cr.R. 511, 244 S.W.2d 206 (1951); Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412 (1953); Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403 (1956); Ex Parte Foight, 165 Tex.Cr. 153, 306 S.W.2d 132 (1957); Ex Parte Webb, 374 S.W.2d 675 (Tex.Cr.App.1964); Ex Parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967); Ex Parte Balas, 412 S.W.2d 53 (Tex.Cr.App.1967); Ex Parte Morgan, 417 S.W.2d 400 (Tex.Cr.App.1967); Ex Parte Cole, 417 S.W.2d 408 (Tex.Cr.App.1967); Ex Parte Benfield, 417 S.W.2d 812 (Tex.Cr.App.1967); Ex Parte Collier, 440 S.W.2d 854 (Tex.Cr.App.1969).


author: DOUGLAS, Judge.

text:
    Ex parte Raymundo MURILLO.
    No. 50210.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Rehearing Denied Oct. 8, 1975.

      Ray J. McQuary, Rosharon, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P.

Murillo contends that he is illegally confined on a void sentence. On June 5, 1973, he was convicted for the offense of robbery by assault by the use of a firearm under Article 1408 of the former penal code, Vernon’s Ann., which provided, in part, the punishment “ . . . by confinement in the penitentiary for any term of years not less than five years.” A plea of guilty was entered and the court assessed the punishment at life which was not authorized under the statute. He has not served the minimum of five years under the statute and is not entitled to be discharged under earlier decisions of this Court.

Applicant is correct in his contention that life is not valid as punishment for robbery by firearms under Article 1408, supra.

He wants this Court to hold that he is entitled to be discharged when he has obtained credit for five years. In view of our disposition of this cause, it is not necessary to pass upon this contention.

Recently this Court returned a case for the assessment of punishment in a post conviction habeas corpus proceeding such as this where there was error in assessing punishment. Ex parte Taylor (Tex.Cr.App.1975), opinion withdrawn and not to be published.

In keeping with the decision in the Taylor case, the cause should be remanded to the trial court for the proper assessment of punishment under Article 1408, supra.

It is so ordered.

OPINION

ON PETITIONER’S MOTION FOR REHEARING

In our original opinion in this ease we relied upon Ex Parte Taylor (Tex.Cr.App.1975), opinion withdrawn and not to be published, as authority for remanding this cause to the trial court for a proper assessment of punishment. The Taylor opinion has now been withdrawn by a subsequent per curiam opinion holding that the question in that case had been rendered moot by the petitioner’s discharge from his sentence.

However, we remain convinced that the original disposition of this case was correct. See Ex Parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975).

The motion for rehearing is denied.


text:
    Ex parte David NORVELL and Nathaniel Maxwell.
    No. 50959.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Ted Redington, Huntsville, for appellant.
    Robert O. Smith, Dist. Atty. and Charles D. Craig, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an original application for habeas corpus filed by petitioners David Norvell and Nathaniel Maxwell. Motion for leave to file said application was granted by this Court by order of August 25, 1975.

Petitioner Norvell was convicted of the offense of burglary in a Travis County District Court and sentenced to three years’ imprisonment on June 20, 1974. Notice of appeal was duly filed, and his conviction was upheld by this Court in a per curiam order this day handed down. His claim for habeas corpus relief is thus moot. Petitioner Maxwell was convicted of the offense of burglary in a Travis County District Court, and he was sentenced to ten years’ imprisonment on February 14, 1975. Petitioner Maxwell also gave timely notice of appeal, and his appeal is currently pending before this Court.

Upon the motion of the district attorney of Travis County under the provisions of Art. 42.09, Sec. 5, V.A.C.C.P., petitioner Maxwell was transferred to the Texas Department of Corrections on August 5, 1975. Section 5 provides as follows:

“If a defendant is convicted of a felony and his sentence is a term of fifteen years or less and he gives notice of appeal, he shall be transferred to the Department of Corrections on a commitment pending a mandate from the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court. Upon a valid transfer to the Department of Corrections under this section, the defendant may not thereafter be released on bail pending his appeal.” (Emphasis added).

Petitioner complains that the unilateral action of the Travis County district attorney has had the effect of denying him the opportunity to post bond pending appeal of his sentence, said sentence being less than 15 years. See Art. 44.04(e), V.A.C.C.P. It is his contention that Art. 42.09 allows transfers of inmates to the Texas Department of Corrections pending appeal only upon the request of the inmate himself.

This Court is confronted at the outset with a jurisdictional problem. Petitioner sought his return to Travis County jail in a habeas corpus application originally filed in the trial court. On August 25, 1975, the trial judge dismissed the application for lack of jurisdiction, because petitioner’s case was still pending appeal. No notice of appeal from this order was given. Jurisdiction thus does not lie as in an Art. 11.07 post-conviction habeas corpus proceeding, or as in a direct appeal from the denial of a habeas corpus application filed in the trial court to require bail to be set or reduced. Arts. 11.08 and 11.09, V.A.C.C.P. Petitioner’s application is in habeas corpus, because of his complaint of an illegal restraint; more specifically, of his complaint of confinement in the wrong institution. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 1834, 36 L.Ed.2d 439 (1973); Leahy v. Estelle, 371 F.Supp. 951 (N.D.Tex.1974), affd., 503 F.2d 1401 (5th Cir. 1974).

This Court has the power, however, to entertain original applications for writs of habeas corpus as part of its original jurisdiction. Art. V, Sec. 5, Vernon’s Ann. Const, of Texas. Ex parte McKenzie, 115 Tex.Cr.R. 315, 29 S.W.2d 771 (1930). See, also, the interpretive commentary following said section and Art. V, Sec. 3, Vernon’s Ann.Const. of Texas regarding habeas corpus jurisdiction of the Texas Supreme Court. While possessed of this power of original jurisdiction, however, this Court will only take such jurisdiction in extraordinary eases, as where the proceeding is void and an appeal will not be an adequate remedy, Ex parte Patterson, 42 Tex.Cr.R. 256, 58 S.W. 1011 (1900); or where the petitioner has been unsuccessful in obtaining relief from the trial judge. Ex parte Fitzpatrick, 167 Tex.Cr.R. 376, 320 S.W.2d 683 (1959).

Our search for authority to take original jurisdiction in this matter, however, need go no farther than the case of Ashford v. State, 410 S.W.2d 433 (Tex.Cr.App.1967). Ashford, relying on Ex parte Sena, 366 S.W.2d 568 (Tex.Cr.App.1963) and Ex parte Griego, 366 S.W.2d 572 (Tex.Cr.App.1963), held that this Court should have granted relief to a petitioner complaining in an original application for habeas corpus of his erroneous transfer to the Texas Department of Corrections while his case was still pending on appeal. The amendment of Art. 42.09, Sec. 5, V.A.C.C.P. in 1973 does not affect the exercise of this Court’s constitutional power of original jurisdiction in such cases.

It remains to consider the problems posed by construction of Art. 42.09, Sec. 5. Admittedly, transfers to the Texas Department of Corrections pending appeal need only be “upon request”, but the persons empowered to make such request are not named. If district attorneys are allowed to make such requests, as respondents contend, all inmates in county jails awaiting appeals of convictions resulting in sentences of less than 15 years could conceivably be transferred to the Texas Department of Corrections. In fact, if respondent’s contentions are carried to their logical extremes, requests to transfer inmates could be made by sheriffs, county commissioners, complaining witnesses, or anybody.

But to give such effect to Art. 42.09, Sec. 5 would render nugatory a defendant’s rights under Art. 44.04(e) to post bond pending appeal in any conviction where the sentence does not exceed 15 years. Invalidation of the last sentence in Art. 42.09, Sec. 5 which prohibits release on appeal bond of inmates incarcerated at the Texas Department of Corrections, can be avoided, however, by construing the statutes together, and harmonizing their provisions, as this Court is required to do when construing arguably inconsistent statutory provisions Code Construction Act, Art. 5429b-2, Sec. 3.06, V.A.C.S. A harmonious 'construction of the two statutory provisions is possible if the “request” referred to in Art. 42.09, Sec. 5, is interpreted to mean “request of the defendant.” This is the meaning obviously intended by the Legislature in the first place. And a defendant’s request to be transferred to the Texas Department of Corrections pending appeal could then be viewed as a waiver of his right to post bond under Art. 44.04(e). We hold that this is the proper construction of Art. 42.09, Sec. 5, Y.A.C.C.P.

It is therefore ordered that petitioner Maxwell be returned to the Travis County jail pending the disposition of his appeal currently before us, or a validly executed request to be transferred to the Texas Department of Corrections by the petitioner himself. It is further ordered that petitioner Norvell’s application, being moot, is hereby dismissed.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Curtis Charles OVERSHON, Defendant-Appellant.
    No. 9653.
    Missouri Court of Appeals, Springfield District.
    Sept. 16, 1975.
    Dan L. Birdsong, Rolla, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   FLANIGAN, Judge.

Defendant appeals from a conviction and sentence of two years, after jury verdict, for exhibiting a deadly weapon in a threatening manner. § 564.610 RSMo 1969, V.A. M.S.

The first of defendant’s two contentions is that the evidence is insufficient to support the conviction. In determining the validity of that contention this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all inferences fairly deducible therefrom tending to support the verdict and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217, 218[1] (Mo.1972).

In addition to its formal portions, the amended information charged that the defendant, on or about the 31st day of December, 1972, “did then and there wilfully, unlawfully and feloniously in the presence of Don Watson, exhibit and flurich [sic] a certain dangerous and deadly weapon, to-wit, H & R 9 shot, loaded revolver, in a rude and threatening manner. . . . ”

State’s witness Watson testified that on that date he went to the Rock Haven Tavern. As Watson was entering the tavern, the defendant was leaving it. They met in the doorway. Defendant had the described revolver in his hand. Watson said the defendant pointed the gun “at my shoulders and head.” Watson, himself unarmed, assumed the gun was loaded. He had had no conversation with the defendant and did not know him.

While pointing the gun at Watson, defendant told him to get out of the way. Watson did get out of the way and the defendant departed. Shortly thereafter he was apprehended by highway patrolmen and the revolver was found in his car.

The relevant portion of § 564.610 makes it unlawful for a person to exhibit, in the presence of one or more persons, a deadly weapon “in a rude, angry or threatening manner.”

Defendant concedes that the revolver was a “deadly weapon.” But defendant asserts that he “made no overt act which could be construed as threatening” and “said nothing which could be construed as threatening.”

If defendant, in the presence of Watson, exhibited the revolver “in a rude, angry or threatening manner,” the statute was violated. The state did not have the burden of proving the manner was rude, angry and threatening. State v. Rice, 522 S.W.2d 656, 659[7] (Mo.App.1975).

It is clear that the manner in which the defendant exhibited the revolver was rude. The pointing of the gun at Watson’s head and shoulders was, to say the least, rude. Watson testified that he assumed that the gun was loaded and, under the circumstances, such an assumption seems reasonable. Watson, with undoubted prudence, complied with the terse demand.

A jury could reasonably construe the request as a threat, coupled as it was with the pointing of the gun, but the statute contains no express requirement of a verbal threat. It is sufficient if the manner of exhibition be threatening. The evidence permitted, perhaps even compelled, the conclusion that defendant’s manner was both rude and threatening. It seems a reasonable inference that he was also angry, but the latter element need not appear so long as the manner was either rude or threatening. The evidence is sufficient to support the conviction. State v. Owen, 457 S.W.2d 799, 804[5] (Mo.1970) (and authorities there cited).

Defendant’s second contention reads: “The court erred in admitting into evidence a certain H & R nine shot revolver for the reason that said revolver was not sufficiently identified as being the weapon used by defendant as charged in the amended information.”

Defendant’s brief fails to cite any authority on this point and many cases hold that such failure constitutes abandonment of the point.

However, the point, gratuitously considered, is factually unsound. Watson testified, without objection, that state’s Exhibit 3 was the gun the defendant had at the time of the offense. The state trooper who arrested the defendant identified Exhibit 3 as being the gun in defendant’s possession and it fit the description contained in the amended information.

There is no error in the matters of record reviewed pursuant to Rule 28.02 Y.A.M.R.

The judgment is affirmed.

All concur.

      . “Under § 564.610, certain weapons mentioned therein, e. g. ‘firearm’ are dangerous or deadly. If the weapon is one mentioned in the statute as being dangerous and deadly, no further proof to show that it is deadly is required or necessary.” State v. Campbell, 507 S.W.2d 431, 433[1-3] (Mo.App.1974). To similar effect see State v. Larkin, 512 S.W.2d 911 (Mo.App.1974). It is immaterial whether the revolver was unloaded, or whether it was otherwise incapable of being discharged if it had the “appearance and characteristics” of a revolver. State v. Morris, 263 Mo. 339, 172 S.W. 603, 604[1] (1915).

      . MAI-CR 13.12 is entitled “Exhibition of Weapon in a Rude, Angry or Threatening Manner.” Paragraph second of that instruction reads: “Second, that he did so in a rude, angry and threatening manner.” (Emphasis added).

      . Schroeder v. Price Charles, Inc., 427 S.W.2d 414, 420[9] (Mo.1968); Sierk v. Reynolds, 484 S.W.2d 675, 682[7] (Mo.App.1972); Cady v. Kansas City Railway Co., 512 S.W.2d 882, 885 (Mo.App.1974); Schmidt v. Central Hardware Co., 516 S.W.2d 556, 560[10] (Mo.App.1974); Mo. Dig., Vol. 3B, App. and Err., @=>1079. A purist might wonder if any point of first impression, however valid, could properly be raised.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Cleveland Gus LAKES, Appellant.
    No. 36525.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 16, 1975.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas M. Daly, Asst. Gircuit Atty., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, Christelle Adelman-Adler, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant was convicted of stealing over $50 (Section 560.156, RSMo. (1969)) and sentenced to five years’ imprisonment.

Defendant contends the trial court erroneously refused to suppress both physical evidence and evidence of defendant’s incul-patory statement to an arresting officer.

On February 15, 1974 patroling police officers Monroe and Oberdieck saw defendant and a companion walking away from a parked panel truck marked “Cross & Son.” The men were carrying tool boxes similarly marked. The police reversed direction and as they approached defendant he put the two tool boxes down on the sidewalk.

In stopping defendant and his companion, Officer Monroe drew his handgun as a precaution. Officer Oberdieck, having noticed the truck had been broken into, went into an adjacent building and found the truck’s owner, L. R. Cross, who identified the truck and tool boxes as his property. He denied giving anyone permission to enter his locked truck. Defendant contends the drawn weapon so significantly limited his freedom as to constitute an arrest without probable cause and the subsequent “search” was therefore invalid.

The items sought to be suppressed were the tools carried and then voluntarily put down on the sidewalk by the defendant and his companion. These items were in plain, public view of the officers when they approached the defendant. “Where the articles sought to be suppressed were in plain sight of the arresting officer . . the articles are admissible in evidence over an objection that they were seized as the result of an unlawful search.” State v. Jefferson, 391 S.W.2d 885, l.c. 888 (Mo.1965).

In State v. Johnson, 490 S.W.2d 20 (Mo.1973), a defendant was found on the loading dock of a retail store where customers were not permitted. An approaching policeman saw in the defendant’s car a box marked with the store’s name. Defendant held two sealed boxes also marked with the store’s name. The court ruled the officer had not conducted an exploratory search of the defendant’s trunk. The court also noted that it was not necessary to resort to formal legal process to seize the boxes held and dropped by the defendant in flight.

In the instant case, there was no search. State v. Hohensee, 473 S.W.2d 379[3] (Mo.1971). Defendant was in a public place and had no reasonable expectation of privacy. Police officers saw what anyone on the street could see. Seizure of the articles did not occur until after the officers had noticed the name on the truck was also lettered on the tool boxes, the truck’s vent window was broken, the door lock was unlatched, and all had been identified by the victimized owner. There was then probable cause for the arrest.

The State presented evidence that defendant, after proper Miranda warnings had been given, stated to an arresting officer, “Monroe, can I get a break on this?” Defendant argues that since his arrest was illegal this statement should have been suppressed. The statement was made after there was probable cause for arrest, was voluntarily given, not in response to police interrogation, and, appropriate warnings had been given. The statement was admissible.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


author: TITUS, Judge.

text:
    Grace Brady FULTON, Plaintiff-Respondent, v. J. C. FULTON, Defendant-Appellant.
    No. 9693.
    Missouri Court of Appeals, Springfield District.
    Sept. 22, 1975.

      John C. Holstein, Rich D. Moore, Moore & Brill, West Plains, for plaintiff-respondent.
    Harold L. Henry, West Plains, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Grace Brady Fulton (Grace) sued J. C. Fulton (J. C.) for divorce in the Circuit Court of Oregon County, Missouri, on March 9,1973. In the amended Count II of the petition Grace asked the court to award her a 92-acre Oregon County farm, certain livestock, and all the household goods, furnishings and farming equipment located on the farm “as the property settlement between plaintiff and defendant.” The petition alleged the farm, household goods, furnishings and farming equipment had been acquired by Grace as her separate property before the marriage and that she had purchased the livestock with her own money without contribution from J. C. The amended counterclaim filed on behalf of J. C. asked for (1) a divorce, (2) alimony in gross, (3) a decree declaring Grace in contempt for violating an injunctive order, (4) a decree fixing J. C.’s rights to the farm either via a resulting trust, joint adventure or equitable lien, (5) an accounting of J. C.’s interest in the sale of livestock and other personal property by Grace, and (6) partition of the real estate. The court nisi entered judgment for J. C. on Grace’s petition and for Grace on J. C.’s counterclaim. J. C. alone perfected his appeal, contending the trial court erred in not finding for him on all items of his asseverations save his claim for alimony and partition. However, since the appeal, Grace, without apparent objection from J. C., has secured a divorce or dissolution of the marriage elsewhere, so that phase of the matter is now moot.

Ages of the parties are unknown, but neither was unseasoned nor a neophyte at nuptials. Both resided in California when our concern commences. Grace became a widow in 1965 upon the demise of Barney Brady; J. C. was then married to one Laura. Within “several weeks” after Grace assumed widowhood, or more precisely in January 1966, J. C. began to pay her court. Intolerant of the association Laura sued J. C. for divorce and obtained a final decree therefor on July 21, 1967. J. C. and Grace married eight months later in March 1968 and moved onto the Oregon County, Missouri, farm in July 1968.

In July 1966 while J. C. was still wedded to but separated from Laura, he and Grace journeyed from California to Missouri and Arkansas on vacation. The trip’s purpose was to visit kin and neither sojourner contemplated the purchase of real estate in the vacation area or elsewhere. While picnicking with Grace’s sister and brother-in-law and through sheer happenstance, the quartette espied a “For Sale” sign in the yard of the Oregon County farm in question and inquired of the owners in residence. The total price was $17,000 — $1,000 was needed to hold the deal, another $4,000 was required forthwith before deed delivery, and the balance was to be evidenced by a $12,-000 promissory note payable in yearly $1,000 installments plus interest. From this point forward the evidence is in disaccord.

Grace said that before seeing the farm she and J. C. had no discussions concerning their possible marriage. Contrawise, J. C. testified that a day or two before the farm was purchased, and while the two were ensconced in the romantic confines of a fishing boat, he broached the subject of marriage to Grace (to become effective when his divorce from Laura became final) and she expressed amenability to the proposition. Under Grace’s version, J. C. had no part in purchasing the farm or in the negotiations relative thereto. Additionally Grace contended that J. C. did not contribute to the $1,000 holding payment because “I had the money to pay the down payment on the farm” ($500 of which was borrowed from her father), that there was no understanding the title was to be put in her and J. C.’s joint names when his divorce became final, nor any agreement that J. C. was to have any interest in the farm, either at the time of purchase or thereafter. In support of her assertions, Grace produced five checks of $100 each dated from November 1966 to May 1967 payable to her father. They were drawn on a California bank against the account of Barney H. and Grace L. Brady. Grace said these checks represented restitution of the $500 she had borrowed from her father to make one-half of the $1,000 holding payment. Also, Grace put in evidence a $4,000 check dated July 5, 1966, drawn on the California bank against the same account, which she testified completed the $5,000 down payment on the farm. Grace additionally proffered a $1,000 written receipt from the farm sellers which did not mention J. C., the warranty deed to the farm dated July 2, 1966, naming Grace Brady as the lone grantee, and the paid $17,000 promissory note dated July 18,1966, signed by Grace Brady as the sole maker. Grace ceded, however, that J. C. had given her a total of $3,800 (none of which was for the holding payment) “and I paid it on the farm.” She had kept in an address book a penned record of J. C.’s payments to her in 1966 after they returned from their vacation trip. Under the heading, “J. C. Paid on House and Farm,” Grace had recorded two $250 and one $100 payments in July 1966, and 12 payments of $50 each to November 18, 1966. She acknowledged also that J. C. gave her $1,000 “for the payment on the place in December of ’67”, and that in January 1969 J. C. gave her $1,500 which she put with money drawn from her account in the California bank “for the payoff of the place.” During 1967, according to Grace, J. C. “give [sic] me some [money], but not very much. [H]e told me to use it for whatever I wanted and he ate his meals at my house, two meals a day . . and I used the money for groceries.” Grace had no record or recollection of the amount J. C. gave her in 1967 (save the $1,000 payment in December 1967), and testified that after moving to Missouri in July 1968, J. C. gave her money “from time to time [and] told me to do [with it] whatever I wanted to.” Grace asserted that J. C. did not work after they moved to Missouri and that they lived off her $21 a month retirement, money she got for keeping foster children for a year and a half, and money from the sale of pigs. Grace maintained that no money given her by J. C. went into her account in the California bank and that J. C. made no deposits to that account nor to the joint account they had in the Alton (Missouri) Bank, more of which anon. It was agreed that after J. C.’s divorce from Laura became final, he asked Grace to put the farm in their joint names and she refused. Grace did not admit knowledge of the farm’s value on the date of trial (November 8, 1973), but did admit that “over three years ago” she had the place listed for sale at $43,000.

Contrary to Grace’s recastings, J. C. maintained he was a participant in the inspection, negotiations and purchase of the farm. He said that when the terms of the sale were ascertained, “Grace and myself [sic] decided we could get up five hundred dollars between us. And her father [said] he would loan us five hundred dollars to pay the thousand dollars ... to hold the deal. And we would send [the other $4,000] back to him when we got back to California. [S]o the money I had and the money [Grace] had and the [borrowed $500] made the thousand dollar payment.” When asked what was said about the title between J. C. and Grace while they were dealing to buy the farm, J. C. related: “I was in the process of getting a divorce in California and we discussed . . . putting the place in [Grace’s] name so this ex-wife of mine . . . couldn’t cause us any trouble. She agreed to it [but] after everything blowed [sic] over in California I tried to get Grace to put my name on the deed and she refused. . . . So we went back to California [and] on two different occasions I gave Grace two hundred and fifty dollars on that five hundred dollars [f]or the thousand dollar down payment on the place.” J. C. stated that Grace had a “savings” in the California bank and that when they returned from the vacation trip, she sent $4,000 (balance of the down payment) “and the money that I gave her she put in the bank in that savings account.” In addition to the two $250 payments, the $1,000 payment made in December 1967, and the $1,500 payment made in January 1969, as testified to by both J. C. and Grace, J. C. claimed payments to Grace of $50 a week for “I think twenty-one months up until we got married or something like that and then I started giving her seventy-five dollars a week [which continued for] about nineteen weeks I think.” J. C. calculated the $50 weekly payments came to $4,550 and the $75 weekly payments amounted to $1,425. Although the two $250 payments, the $1,000 and $1,500 payments, and the various weekly payments testified to by J. C. came to a total of $8,975, he testified that to the best of his knowledge he had given Grace $11,990 “on the payment of this property.” When, where, and by what means the $3,015 difference was paid went unexplained at trial.

When J. C. and Grace moved to the farm in July 1968, an account was opened at the Alton (Missouri) Bank in the names of “J. C. Fulton or Grace L., Rt. # 1, Couch, Mo.” The initial deposit was made with a $6,800.56 cashier’s check dated July 2, 1968, which Grace said she had bought “at the bank in California.” In explanation of the source of the money used to buy the check, Grace testified that “Five thousand dollars of it came from the sale of my house [and the balance from] three checks, three weeks’ pay, two weeks’ vacation and I had sold my car and . . . my husband’s police gun and some furniture.” Not congruous with this assertion was Grace’s previous testimony that when she paid the $7,014.77 balance of the $17,000 promissory note in February 1969, she “drew fifty-five hundred dollars out of the [California] bank from the sale of my house and [J. C.] gave me fifteen hundred dollars and I paid the place off.” (Emphasis supplied). Unless Grace was feoffee of more than one California house or received more than approximately $5,000 from the sale thereof (and the record does not indicate either was so), it exceeds logical explanation to say the proceeds “from the sale of my house” were used to purchase a cashier’s check which in July 1968 was deposited in the Alton (Missouri) Bank, yet seven months later were on deposit in a California banking institution. In any event, Grace asseverated J. C. had not contributed anything to buy the cashier’s check and had never made a deposit to the joint account at the Alton Bank.

J. C., while admitting that he did not tell Grace what to do with all the money he allegedly gave her, indicated that “she knew what it was for” and that she deposited it in her account in California. He agreed with counsel that the $6,800 used to start the joint account in the Alton Bank came from Grace’s account in California, and while previously on deposition J. C. had said he could not estimate how much of that fund he had given Grace, he opined at trial he had contributed “at least half of it.” In dispute of Grace’s saying that J. C. had never made a deposit to the joint account at the Alton Bank, J. C. said that after they had been farming for some time, he culled out the old cattle from the herd, sold them and put the money in the account.

The parties agreed the cattle initially put on the farm had been bought and paid for from the joint checking account in the bank at Alton. A July 27,1968, check in the sum of $2,220.63, signed by J. C., was given “For: Cows 15;” a $200 check dated August 5, 1968, signed by J. C., was written “For: 1 Bull”; Grace wrote a $980.50 check on September 7, 1968, “For: Cows 8.” At the time the parties separated, J. C. said there were approximately 46 cows and calves on the farm. But whatever the count may have been, Grace sold cattle on September 20,1973, for $11,800, all of which she put in the bank in her name without giving any of the proceeds to J. C.

Hogs first put on the farm consisted of 5 sows and 1 boar. Grace claimed they were bought by her father with Grace’s paycheck — not out of the joint account. J. C. claimed that he bought the swine for cash from “a lot of change and stuff . that we had saved up in California.” He said there were 12 sows, 1 boar and 16 pigs on the farm when the separation occurred. Grace admitted selling 7 sows, 1 boar and 24 pigs for $1,700, but in answering interrogatories, she responded the sale of 32 swine brought $2,719.97.

In her petition, Grace averred she was the sole owner of all household goods, furniture, etc., and all farm and garden implements including, among other things, a tiller, tractor and lawn mower, because they were bought and belonged to her before she married J. C. She partially contradicted herself by producing a $400 check drawn on the joint account at the Alton Bank dated August 13, 1968. The check was signed by J. C. and was “For: Tractor & Equ.” Grace produced a witness whose testimony was intended to match the furniture and household equipment seen by her in Grace’s California home with the same items the witness had observed later in the Missouri farmhouse. Unfortunately for Grace, the witness’ responses to questions regarding specific items were liberally salted with such answers as “I don’t remember about that. ... I can’t say for sure. . No . Well, I don’t know. . No I can’t [and] I can’t tell you that either.” With the exception of a $250 sewing machine J. C. said was bought before he married Grace, with funds from Grace’s California account to which he had contributed, it was J. C.’s testimony that all the household and farm items and equipment had been accumulated and purchased “since we were married” from moneys contributed by both. J. C. stated these items of personal property had a value of $5,600. Questions propounded to J. C. by Grace’s counsel pointed out that J. C. was attempting to claim multiple credits for the money he had allegedly given her, i. e., J. C. was asking that the full amount of the money be counted not only as his contribution on purchase of the farm, but also be credited as a contribution by him for living expenses, counted in the moneys deposited in the California and Missouri bank accounts, and considered as an item in his favor when calculating money spent for purchase of livestock and household goods.

In answer to J. C.’s urgings on appeal that the trial court erred in not fixing him with some rights to the farm either through a resulting trust, joint adventure or an equitable lien, Grace counters first with the averment that the court’s failure to accommodate J. C. may be justified under the “unclean hands” doctrine, or, if you prefer the “clean hands” maxim. This contention arises from J. C.’s insistence that the only reason the deed was made to Grace alone in the first place was to preserve the farm from possible claims by his then wife, Laura, should title appear in the names of both Grace and J. C. Although “equity refuses to lend its aid in any manner to one seeking its active interposition who has been guilty of unlawful or inequitable conduct in the matter with relation to which he seeks relief” (30 C.J.S. Equity § 93, at p. 1009), the clean hands doctrine has its limitations and “ ‘does not apply to every unconscientious act or inequitable conduct . Price v. Ridler, 373 S.W.2d 59, 62[2] (Mo.1963). The party seeking to invoke application of the doctrine (here it is Grace) must show that he himself was wronged and injured by the conduct of which he complains. Hunt v. Easley, 495 S.W.2d 703, 707 (Mo.App.1973). In this case, Grace was in no way injured by J. C.’s alleged wrongdoing. Indeed, she was, if anything, a party to it and the benefactor thereof. She cannot avail herself of the doctrine.

A person claiming a purchase money resulting trust has the burden of proving it. Williams v. Ellis, 323 S.W.2d 238, 240[3] (Mo.1959). Variously stated, the rule respecting the sufficiency of the evidence to establish such a trust is that a preponderance of the evidence is not enough, that the proof must be so clear no reasonable doubt can be entertained of its truth, and that the evidence must be so impelling, unturbid, unequivocal, cogent, unquestionable, and positive in character as to banish and exclude every reasonable doubt from the chancellor’s mind. March v. Gerstenschlager, 436 S.W.2d 6, 8[1] (Mo.1969).

As distinguished from an express trust, a resulting trust is something implied by law from conduct and acts of the parties and the circumstances and facts as they existed at and attended the transaction out of which the trust arises. It is necessary and essential that the money or other consideration furnished for the conveyance shall have been, in part at least, the property of the person who claims to be a beneficiary of a resulting trust [Bogert, Law of Trusts § 74 (4th ed. Hornbook Series), at p. 198], and there must be a presumed intent on the part of the grantee to hold for the cestui. The trust, if any, comes by implication from circumstances and facts, not from an express agreement, and an intention that there be a trust is an essential element, though the intention is not stated by words or direct creation. O’Leary v. McCarty, 492 S.W.2d 124, 128[2, 3] (Mo.App.1973). If property is conveyed to one and another pays part of the purchase price, a purchase money resulting trust may arise in favor of the partial payor in such proportion as the part paid bears to the total buying price (or as the intention of the parties otherwise indicates), unless the person making part payment manifests an intention that no resulting trust should arise or that a resulting trust based on the ratio between the full price and partial distribution should not arise. Decker v. Fittge, 365 Mo. 139, 144, 276 S.W.2d 144, 147[3] (1955); Restatement, Second, Trusts § 454. However, the unilateral manifestation of the disclaiming cestui only serves to negative the creation of a trust and the absence of such manifestation does not, per se, serve to prove a creative intention of the parties. If the alleged trust claimed by the intended cestui is not of the whole of the property, the proportionate interest must be clearly and definitely shown [Ellis v. Williams, 312 S.W.2d 97, 101[7] (Mo.1958)], and should the amount of money contributed by the claimant be uncertain, no trust can result in his favor. Bogert, supra, at p. 200. Moreover, a resulting trust “must arise, if at all, at the instant the deed is taken. Unless the transaction is such that the moment the title passes the trust results from the transaction itself, then no trust results. It cannot be created by subsequent occurrences.” Bender v. Bender, 281 Mo. 473, 477, 220 S.W. 929, 930[5] (1920); Dougherty v. Duckworth, 388 S.W.2d 870, 874[1] (Mo.1965). When property is transferred to one person, no resulting trust arises merely because another person subsequently pays or assumes an obligation to pay for the property in whole or in part. Restatement, Second, Trusts § 457.

J. C.’s evidence, completely contradicted by Grace, was designed to show that at the time of purchase, Grace (sole legal owner of the farm) was acting for both, and that at some future unknown date “after everything blowed [sic] over in California,” she was to put J. C.’s “name on the deed” to endow him with some unstated partial or joint interest in the property by reason of some sort of a tenancy that went wholly unspecified. This is not impelling, unequivocal, cogent, unquestionable and positive evidence of an intention on the part of the parties that there was to be then and there a purchase money resulting trust in favor of J. C. Furthermore, a total dearth of proof existed as to what exact amount, if any, J. C. supposedly contributed to the $1,000 holding payment, and no attempt was made to prove that at or before the date the deed was delivered J. C. was to pay any certain sum or percentage of the total purchase price. To the contrary, the documentary evidence and some testimony by J. C. (see note 3, supra), indicate that whatever money J. C. gave to Grace to be applied on the farm purchase was paid after the deed was taken. The different times the monies were given and the differing amounts thereof, could be viewed as more attuned to capriciousness than to a studied steady design of regular payments intended to satisfy a known fixed obligation. A resulting trust does not arise in favor of one who makes only indefinite or general contributions to the purchase price. Scott, Trusts § 454, at p. 2284. Irrespective of Grace’s records, one can only guess from J. C.’s testimony as to what sums he actually gave her to pay on the farm, when his relatings as to payments are marked off, fore and aft, with “I think,” and when his recitations of weekly and lump sum payments miss his claim to a total sum by some $3,000. And, as already observed, J. C. perhaps sought credit for- the payments on more accounts than that relating to the farm purchase price. Under these circumstances and additional ones included in our recounting of the facts, supra, the court nisi cannot be held to have erred in failing to impose a purchase money resulting trust in J. C.’s favor on the farm, particularly if due regard is given, as it must be, to the better opportunity of the chancellor to have judged the credibility of the witnesses. Rule 73.01, subd. 3(b).

The second try by J. C. at investing himself with a share of the farm is predicated on the theory of joint adventure. He does not say how an interest in real estate may come about under that theory. We can only assume J. C.’s idea springs from the law that “where the title to property purchased or acquired in connection with a joint adventure or the profits thereof is in the name of one of the parties, he holds it in trust for his associates according to their proportionate shares. If he paid the purchase price with his own money, then the question whether he is the exclusive owner of the land, or whether his associates have an interest in it, depends on the agreement between them. If the agreement merely provides that they are to share only the profits for services to be rendered, they have no interest in the land but only in the profits. Where, however, the land cannot be disposed of except under the joint direction of both parties, or without the consent of both, it has been held that the associates of him who has the title also have an interest in the land itself.” Dierks & Sons Lumber Co. v. Bruce, 239 S.W. 133, 134-135 (Mo.1922); Stouse v. Stouse, 270 S.W.2d 822, 826 (Mo.1954); 46 Am.Jur.2d, Joint Ventures, § 40, pp. 59-60. Of course before J. C. could successfully claim entitlement to a decree declaring him a joint (or whatever) owner of the farm under the theory of joint venture, he first had to prove by a preponderance of the evidence [Scott v. Kempland, 264 S.W.2d 349, 355[9] (Mo.1954); Brooks v. Brooks, 357 Mo. 343, 351, 208 S.W.2d 279, 284[6] (1948)] that a joint adventure in fact existed between him and Grace. 48 C.J.S. Joint Adventures § 12 g. (3), p. 856.

A joint adventure exists when there is a special combination of two or more persons jointly seeking a profit in some specific venture without actual partnership or corporate designation. It has been defined also as “an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.” Scott v. Kempland supra, 264 S.W.2d at 354[1]. “Briefly stated, the principal requisites of a joint adventure are a community of interest in accomplishment of a common purpose, a joint proprietary interest in the subject matter, a mutual right of control, a right to share in any profits, and a duty to share in any losses.” Fish v. Fish, 307 S.W.2d 46, 49[2] (Mo.App.1957). The sine qua non of the relationship is a contract or agreement between the parties which, if not expressed, may be inferred or implied, in whole or in part, from the conduct of the parties and circumstances indicating the existence of a joint adventure. The contract or agreement is not invalid because of indefiniteness in the minor details of the adventure nor by reason of any uncertainty in the duration of the business. Southwest Drayage Co. v. Crawford Moving Vans, Inc., 377 S.W.2d 293, 297[2-5] (Mo.1964).

When directed to the issue of the existence vel non of a joint venture between Grace and J. C. concerning the farm, the evidence in the instant case is highly ambiguous to say the least. J. C. stresses an isolated part of his testimony relating to a statement allegedly made to him by Grace’s father while an effort was being made to accumulate the $1,000 needed for the holding payment, to wit: “So her dad called me over to one side and told us that if you kids want the farm, this is the one to buy if you want to move back here. He also told us it was a good business investment if we never did want to move back here. He said it was a bargain . . ..” Grace counters with the argument that this uncorroborated testimony does not suggest an agreement on her part (expressed or implied) to engage in a joint adventure and, if true, was at best merely a recitation of an unsolicited observation by her father. It can also be said that the statement attributed to Grace’s father equivocated between two possibilities, i. e., if they did or did not “move back here,” and could not form a solid basis to support an inference or implication of a mutual agreement that the purpose for buying the farm was to enter into a particular business venture for profit rather than to acquire a bucolic home after the couple’s conjugate relationship became legalized at some future time. J. C.’s disputed claim that, shortly before the farm was bought, he and Grace had agreed to their own nuptials after his divorce from Laura was final, could indicate that what they had in mind was not the purchase of land for a joint venture for profit; and the additional fact the property was actually used as a home subsequent to the marriage would tend to weaken any inference that the purchase was made for business purposes. In short, without endeavoring to detail the sparse evidence on the subject and without violating the chancellor’s theoretically superior assessment of the credibility of the witnesses, we cannot contradict the trial court’s apparent finding that a joint venture between the parties was nonexistent.

The theory of equitable lien has its ultimate foundations in agreements, express or implied, that some specific property (Pomeroy’s Equity Jurisprudence, 4th ed., § 1234, at p. 2961) is to be pledged as security for a debt or obligation. Wilkinson v. Tarwater, 393 S.W.2d 538, 542[5] (Mo.1965). An equitable lien is not an estate in the property itself; neither is it a right on which a possessory action may be based. It is simply a charge upon the property for the purpose of security. Jamison Coal & Coke Co. v. Goltra, 143 F.2d 889, 893[5, 6], 154 A.L.R. 1191 (8th Cir. 1944), cert. den., 323 U.S. 769, 65 S.Ct. 122, 89 L.Ed. 615. Standing alone, the failure to repay money as agreed is not sufficient reason to decree an equitable lien [Hahn v. Hahn, 297 S.W.2d 559, 565[5] (Mo. banc 1957)]; “nor does the mere fact that one person advances money to another which enables the latter to purchase property give the former an equitable lien for his advances on the property when purchased.” 53 C.J.S. Liens § 4 c. (3), pp. 846-847; Bridgford v. Buttercase, 450 S.W.2d 454, 457 (Mo.App.1970).

In this case there is no suggestion of the existence of an express agreement that the Oregon County farm was to be pledged as security for any monies J. C. may have given Grace or for any improvements J. C. may have performed. Likewise, no type of security agreement can be found in or implied from the conduct of the parties as described in the record before us. But in addition to the fact no contract can be found or implied whereby Grace agreed the farm should serve as security for any improvements or payments made by J. C., the latter would also have to overcome the presumption that all post-nuptial payments and improvements were intended as gifts to his wife, Grace. Davis v. Broughton, 369 S.W.2d 857, 862[7] (Mo.App.1963). As the last citation attests, “[t]his presumption is a rebuttable one; but, to overcome it, the evidence to the contrary must be so clear, cogent and convincing as to leave no reasonable room for doubt in the mind of the trial chancellor.” No evidence of any character was proffered to rebut the presumption. The concluding reason why the trial court did not err in refusing to decree an equitable lien, is that J. C. was fully apprised of the fact the title to the farm reposed solely in Grace and that most of the payments and all of the improvements claimed by J. C. were made following Grace’s refusal to add J. C. to the title after Laura’s divorce from him became final. Cf. Welborn v. Rigdon, 231 S.W.2d 127, 134 (Mo.1950).

While this suit was pending in the circuit court, the parties entered into a stipulation under date of August 31, 1973. Per the stipulation it was agreed, inter alia, that neither J. C. nor Grace would transfer, convey or encumber any of the livestock or other personal property on the farm unless otherwise “agreed upon by the parties and their attorneys.” J. C.’s counterclaim (a part of his first amended answer to Grace’s amended petition for divorce) stated, among other things, that after the parties had duly entered into the aforementioned stipulation, he had obtained an injunction enjoining Grace from selling and disposing of the livestock, but despite such, Grace had sold the cattle and hogs for a total of $14,-526.34. In the concluding paragraph of Count II of the counterclaim, J. C. prayed that the court find Grace to be “in contempt of this Court for violating the injunction issued herein on or about September 4, 1973.”

One of the points relied on by J. C. upon appeal is that the trial court erred in failing to enforce its injunctive order against Grace. The authorities cited to this point are aimed at J. C.’s right to an injunction, not to his apparent complaint of the failure of the court to punish Grace for contempt.

The injunction relied on by J. C., was issued by the Magistrate Judge of Oregon County, Missouri. It enjoined Grace from selling, disposing, encumbering or removing any cattle, hogs or personal property located on the farm. Presumably the injunction issued under § 526.020 RSMo 1969. If so, its validity is in doubt. The law states: “Before an injunction shall be granted by the magistrate court or any magistrate, the applicant shall produce satisfactory evidence that there is not then any circuit court in session nor any judge of the circuit court within such county.” According to the magistrate’s order, the injunction issued “upon reading the petition,” what appeared “thereby”, and “upon the facts stated in the petition.” Pleadings, of course, do not prove themselves. Gonseth v. K & K Oil Company, 439 S.W.2d 18, 25 (Mo.App.1969). Ergo, whether satisfactory evidence was produced to prove there was not then a circuit court in session nor any judge of the circuit court within Oregon County when the magistrate issued the injunction or whether, as indicated, the issuance was in reliance on the petition only, is left for us to guess. In any event, it appears the issuance of the injunction was, in part at least, improper. In his petition for the injunction filed four days before its issuance, J. C. verified that Grace had already sold some of the hogs and had arranged for the cattle to be transported to a sale. Whether the sale of the cattle was a fait accompli when the injunction issued, we do not know. Nevertheless, it was wrong to issue the injunction as it related to the swine, for the well-settled and familiar law is that an injunction should not be granted to restrain the doing of an act which has already been done. The purpose of an injunction is to prevent future mischief. Hurtgen v. Gasche, 227 S.W.2d 494, 498[3] (Mo.App.1950), and cases collected in 16 Mo. Digest, Injunction, @=>4.

But to leave the foregoing, our quandary is not conditioned upon the validity or invalidity of the magistrate’s injunc-tive order. The true problem it seems, is: Did the trial chancellor err to J. C.’s prejudice in not punishing Grace for contempt? For solution we quote from 17 C.J.S. Contempt § 57, pp. 131-133: “The power to punish for contempt should be used sparingly, wisely, temperately, and with judicial self-restraint. It should be exercised with caution, deliberation, due regard to constitutional rights, and in accordance with law. While the power may and should be used in an appropriate case, it should not be used ' unless the case clearly calls for its exercise. The power should be exercised only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. Within these limitations, however, the matter of determining and dealing with contempts is within the court’s sound discretion, subject to the absolute provisions of the law, and its determination is final unless there is plain abuse of discretion.” In view of the doubt cast upon the validity of the injunctive order and the recorded facts heretofore repeated, we cannot pronounce that the trial judge clearly and plainly abused his discretion in failing to declare Grace in and punish her for contempt of court.

The final question we must answer is whether J. C. is entitled to an accounting for his alleged interest in the personal property and livestock that may have been purchased from and can be traced to the deposit in the Alton Bank. We opine he is.

The checking account in the Alton Bank was in the names of “J. C. Fulton or Grace L.” It matters not that the account did not designate them as being husband and wife, for they were that in fact at all times herein concerned. State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 609, 240 S.W.2d 188, 190 (1951). Under such conditions and irrespective of statutes relating to joint bank accounts [McIntyre v. McIntyre, 377 S.W.2d 421, 425[7] (Mo.1964)], the account and deposits thereto are presumed to be held in an estate by the entirety whether the husband or the wife or both furnished the monies that went into the account. In re Estate of Jeffries, 427 S.W.2d 439, 444[2] (Mo.1968); In re Estate of O’Neal, 409 S.W.2d 85, 90-91[2-5] (Mo.1966). Although the presumption is rebuttable, the evidence to overthrow it must be so strong, clear, positive, unequivocal and definite as to leave no doubt in the chancellor’s mind. In re Estate of Jeffries, supra, 427 S.W.2d at 444[3]. And logically, if the parties had an estate by the entirety in the account in the Alton Bank, they should have a like interest in the property in which the funds from that account were invested, unless, of course, the type of property purchased (e. g., a suit for J. C. or a dress for Grace) would force an unnatural conclusion. Pelsue v. Pelsue, 367 S.W.2d 487, 492 (Mo.1963). Furthermore, where spouses make a mutual effort to accumulate property during the marriage, and there is no agreement to do otherwise, the fruits of their common purpose become an entirety. Ray v. Ray, 336 S.W.2d 731, 737 (Mo.App.1960). This principle would clearly apply in considering the increase in the number and value of the livestock initially put on the farm.

This opinion is already more prolix than intended. And since the case cannot be finally decided here but must be remanded in connection with the accounting prayed, we need not repeat and lengthen this effort by repeating the considerations to be heeded by the parties and the trial court, as ably stated in Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 396 S.W.2d 570 (Mo. banc 1965); Pope v. Pope, 520 S.W.2d 634 (Mo.App.1975); Coffey v. Coffey, supra, 485 S.W.2d 167; and other cases therein and hereinbefore cited.

The judgment is reversed and the cause is remanded for further proceedings, including accounting, in accordance with this decision.

All concur.

      . Those interested in the jurisdiction of a court to entertain and decide the claims made by J. C., even upon denial of a divorce, are directed to Coffey v. Coffey, 485 S.W.2d 167 (Mo.App.1972) and the cases therein cited and considered.

      . The written record payments amount to $1,200; when added to the $1,000 and $1,500 payments, the total would be $3,700, rather than $3,800 as stated by Grace.

      . If, as J. C. testified, both he and Grace contributed money to make half of the $1,000 holding payment while they were in Missouri dealing for the farm, why, upon returning to California, did he feel obliged to give Grace all of $500 towards the entire payment without then or later asking credit for the unknown sum he had already contributed or paid?

      . As already noted, Grace also testified her paycheck or checks were used to buy the cashier’s check from the California bank that went into the account at the Alton Bank.


author: BILLINGS, Chief Judge.

text:
    Billy W. GRISSO, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9795.
    Missouri Court of Appeals, Springfield District.
    Sept. 23, 1975.
    George W. Gilmore, Jr., Sikeston, for movant-appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Billy W. Grisso has appealed from order of the Circuit Court of Mississippi County dismissing, without an evidentiary hearing, his Rule 27.26 motion to vacate sentences and judgments. We affirm.

On the same date in 1973 the appellant, represented by an attorney, entered pleas of guilty to burglary and stealing in one case and burglary and assault in another case. Concurrent sentences were imposed in each of the cases with the further order that the sentences in both cases be served concurrently.

Appellant’s post-conviction motion stated four alleged grounds for relief: (1) the sentencing judge took into consideration a pri- or unconstitutional conviction in imposing the sentences attacked; (2) his pleas were involuntary because induced by fear, coercion and duress; (3) he was denied effective assistance of counsel because his attorney permitted the court to consider the unconstitutional conviction and failed to disqualify the prosecuting attorney who was coercing appellant into pleading guilty; (4) he was unaware the state would have to prove him guilty and that he had a right to cross-examine witnesses.

Following the filing of appellant’s motion the state filed a motion to dismiss the motion to vacate contending appellant’s Rule 27.26 motion failed to allege facts upon which relief could be granted and, further, the court records affirmatively showed appellant was not prosecuted under the Second Offender Act and consequently any prior conviction did not affect the punishment meted out by the sentencing judge.

The court appointed counsel to represent the appellant, and a hearing was held on the state’s motion to dismiss the proceedings. The court files and transcripts of the guilty plea proceedings in both the burglary and stealing case and the burglary and assault case were offered in evidence by the state in support of its motion.

The trial court prepared and filed written findings of fact and conclusions of law, sustained the state’s motion and ordered appellant’s post-conviction motion dismissed.

The separate transcripts of appellant’s guilty pleas in the two cases squarely refute the appellant’s “grounds” and demonstrate he is not entitled to relief under Rule 27.26. The appellant was not charged as a habitual criminal under the Second Offender Act, and no mention of his 1963 conviction in New Madrid County was made. No facts were alleged to support the conclusionary allegation that this conviction was considered by the sentencing court, and the lower court specifically found from the guilty plea transcripts the conviction was not taken into account in arriving at appellant’s sentences. This determination is not clearly erroneous. Rule 27.26(j).

Before accepting appellant’s pleas the sentencing judge made specific and detailed inquiry of the appellant, and the transcripts clearly negate “grounds” (2), (3) and (4), supra.

“A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which if true, would entitled him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

Here, the appellant did not allege facts which, if true, would entitle him to relief, and his allegations are refuted by facts elicited at the time he entered his multiple guilty pleas. An evidentiary hearing was not called for, and the trial court properly sustained the state’s motion to dismiss the proceedings.

The judgment is affirmed.