author: FLANIGAN, Judge. HOGAN, J., BILLINGS, Chief Judge,

text:
    Elmo MICHIE and Maxie Michie, his wife, Plaintiffs-Appellants, v. The NATIONAL BANK OF CARUTHERSVILLE, Defendant-Respondent.
    No. 10475.
    Missouri Court of Appeals, Springfield District.
    Sept. 13, 1977.
    Motion for Rehearing or Transfer Denied Oct. 5, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      James E. Reeves, Caruthersville, for plaintiff s-appellants.
    John R. Fowlkes, Caruthersville, for defendant-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

On June 24, 1974, plaintiffs Elmo Michie and Maxie Michie, husband and wife, were the successful bidders at a foreclosure sale conducted under a power of sale contained in a deed of trust held by The National Bank of Caruthersville, defendant. In their three-count petition plaintiffs sought “cancellation” of the foreclosure sale and restitution of their payment ($15,000).

The petition alleged that after the foreclosure sale plaintiffs learned for the first time that George E. Goff, the grantor (mortgagor) in the deed of trust, did not have a fee simple title but had only a life estate and that, by their purchase, plaintiffs acquired only the life estate and did not acquire a fee simple.

Count I alleged that the defendant warranted that Goff had fee simple title and that the defendant had breached that warranty. Count II alleged that the defendant “mistakenly represented” to plaintiffs that the successful bidder would acquire a fee simple and that plaintiffs relied on that representation to their detriment. Count III alleged that the sale was fraudulent; that the trustee, acting at the request of and on behalf of defendant, conducted the sale “unfairly and improperly” in that the trustee, knowing that he was empowered to convey only a life estate, failed to disclose the fact that Goff had only a life estate and by his “silence and other conduct misled plaintiffs into believing that the trustee was empowered to convey a fee simple title to the successful bidder.”

The trial court, sitting without a jury, found the issues, on all counts, in favor of the defendant. On this appeal plaintiffs claim that under “the undisputed evidence” they were entitled to prevail on each count.

Appellate review of this nonjury action is governed by Rule 73.01, V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decree of the trial court must be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at p. 32. Neither side invoked Rule 73.01 to request findings of fact and the trial court made none. That being the situation, “all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01.

In the following summary of the facts “DeReign” is Morrell DeReign, Jr., an attorney and an abstracter; “Harper” is Delbert Harper, president of the defendant; “Elmo” is plaintiff Elmo Michie; “Duane” is Duane Michie, son of the plaintiffs— Duane is also the executive vice president of the Bank of Hayti; “Reeves” is James E. Reeves, attorney for plaintiffs.

On December 28, 1972, defendant made a loan to George E. Goff. The note evidencing the loan was secured by a deed of trust dated December 28,1972, in which Goff and his wife were the mortgagors, the bank was mortgagee, and DeReign was the trustee. The deed of trust, which was recorded, contained the words “grant, bargain, and sell.”

Plaintiffs assert, and defendant tacitly concedes, that Goff in fact did not have a fee simple title but had a lesser interest in the mortgaged land, probably only a life estate.

In conjunction with the making of the loan, DeReign examined an abstract of the title to the land and wrote a letter to the bank. The record refers to this letter as Exhibit A. It is dated December 28, 1972, and reads, in essence, as follows:

“[I] have examined an abstract of title covering the title to [the land here involved] from the government to date. Such examination discloses that on October 17, 1952, the circuit court of Pemiscot County, Missouri, in Case No. 10106 decreed that ‘George E. Goff is the legal fee simple owner of [the land].’ Said decree was affirmed by the Supreme Court of the State of Missouri in Hutchison v. Goff, 262 S.W.2d 851. I found no judgments or mechanic’s liens against said Goff and the taxes for prior years have been paid.”

It should be noted that Exhibit A does not contain DeReign’s opinion as to the type of interest which Goff held in the land.

DeReign testified that after he prepared Exhibit A he “hand carried it” to Harper. DeReign “disagreed with the supreme court decision” and told Harper that Goff had only a life estate, but that it was a “loanable risk” in view of Goff’s age. At the time of the trial Harper did not recall that conversation but said, “I certainly do not deny it.”

Goff defaulted in the payment of the secured note and DeReign, as trustee, published in a local newspaper a “notice of trustee’s sale,” the date of the first insertion being May 30,1974. The notice recited that Goff and his wife “by their deed of trust dated December 28, 1972, conveyed to [DeReign] as trustee the following described real estate. . . .” The notice gave the book and page where the trust deed was recorded, contained the legal description of the land, stated that the note was in default and that the trustee, at the request of the holder of the note, would on June 24, 1974, “offer for sale and sell at public vendue for cash in hand all of the real estate described in said deed of trust . . .” and gave the time and place of sale.

Elmo testified that in early June 1974 he saw the foreclosure notice in the newspaper. Elmo then talked with DeReign. Elmo asked DeReign if he could get clear title to the land and said that he, Elmo, had “always heard you couldn't get a clear title.” The only statement which DeReign made to Elmo was that he, DeReign, represented the bank and Elmo would have to see his own lawyer.

Elmo talked with his attorney Reeves who said that he would check into the situation and call him.

Elmo had a conversation with his son Duane, and Duane, at his request, “contacted DeReign to find out about the title.” DeReign told Duane that he would not discuss the matter on the telephone but would talk to him in the office.

Duane went to DeReign’s office and had a conversation with DeReign which lasted 30 or 40 minutes. The two men “went over” the abstract and DeReign told Duane that he did not think Goff had a fee simple title. DeReign spent considerable time discussing the case of Hutchison v. Goff and explaining to Duane why he did not think Goff had a fee simple title. DeReign said he did not agree with the supreme court decision and thought a problem might develop in the future. DeReign said that a purchaser of the land “would be buying a lawsuit.” He suggested that Duane consult an attorney. Duane, as a banker, was amazed that there was a mortgage on the land because all of his life Elmo had told Duane that Goff had only a life estate. DeReign told Duane, “If I were you I would not be interested in buying the property.” DeReign “made it clear” to Duane that DeReign would not “pass” the title to the land and that DeReign “was spooked about the title.”

Duane testified that he told Elmo that DeReign said not to buy the land. Elmo and Duane then went to Reeves and related to Reeves the conversation which Duane had had with DeReign. Apparently this took place after the conversations described in the next paragraph.

Reeves had a conversation with Harper. When asked at the trial by plaintiffs’ counsel if he had told Reeves that DeReign okayed the title, Harper’s reply was “I don’t know that I necessarily said that, Jim Ed, but I said I had a letter from DeReign.” In the conversation being described, Harper read to Reeves the quoted portion of Exhibit A. Reeves asked Harper if he could have a copy and Harper told him he could. Harper then telephoned DeReign and asked DeReign about giving Reeves a copy of Exhibit A. DeReign told Harper not to “give out any information on the title.” Harper then telephoned Reeves and told Reeves that DeReign had instructed him “not to pass out the information.”

About the time that Reeves telephoned Harper, Duane also telephoned Harper and asked him if he had a title opinion on the land. Harper told Duane that he “just could not give him any information on it.” Duane testified that Harper did not lead him to believe that Goff had a fee simple title.

On June 7, 1974, Reeves wrote Elmo a letter saying: “I have checked into the title of the 40 acres being sold by the bank and the title is alright.” Although this letter was placed in evidence, Reeves himself did not testify and the record does not disclose the nature of the “check” which Reeves conducted.

Elmo said that he made up his mind to buy the land “when I got the letter from Reeves.”

“Q You’re stating then, if I understand you correctly, that even if your son, Duane Michie, did relate his conversation about the title with DeReign to you, that you ignored it and based your opinion upon what Mr. Reeves said, other than what Mr. DeReign might have said to your son, is that correct?

“A I was listening to Mr. Reeves.”

On June 24, 1974, Elmo attended the foreclosure sale. At the sale DeReign read the notice of sale but did not make any statement concerning the title. Elmo made a successful bid of $15,000. On the day of the sale Elmo paid DeReign, as trustee, the amount of his bid and received from him a trustee’s deed in which plaintiffs were the grantees. That deed contained recitals to the effect that Goff and his wife had conveyed the described land to the trustee. The trustee’s deed was recorded on the day of the sale.

Some weeks after the sale plaintiffs made application to the Federal Land Bank of St. Louis for a loan. On August 6, 1974, the attorney for the Federal Land Bank refused to approve the making of the loan and stated that the title was defective in that Goff “had nothing more than a life estate at the time of the execution of the deed of trust and the subsequent foreclosure sale conveyed only his life estate to our applicants.” This action was instituted in October 1974.

For the purpose of this opinion this court assumes that Goff’s interest in the land was a life estate. Of course if Goff had a fee simple, plaintiffs’ action fails because each count of the petition rests on the theory that Goff had only a life estate.

“A life estate is a freehold estate and can be sold or mortgaged.” Root v. Mackey, 486 S.W.2d 449, 452 (Mo.1972). Because Goff had only a life estate, the deed of trust conveyed that interest, and no more, to the trustee. Belue v. Fetner, 251 S.C. 600, 164 S.E.2d 753, 755[4-6] (1968); Guy v. Culberson, 164 Tenn. 509, 51 S.W.2d 500, 501[2, 3] (1932); Vandervort v. Finnell, 96 Neb. 515, 148 N.W. 332 (1914). The trustee’s deed to plaintiffs, in foreclosure of that deed of trust, could convey no more than the deed of trust conveyed. Pruitt v. St. Johns Levee & Drainage Dist. 341 Mo. 120, 106 S.W.2d 467, 472[8] (1937).

“A purchaser at a mortgage foreclosure sale acquires all the title and interest of both the mortgagor and the mortgagee in and to the property. He succeeds to all the rights and interests of the mortgagor and mortgagee.” Wiltsie on Mortgage Foreclosure, 5th Ed., Vol. II, § 778, p. 1261. “The sale, however, operates to transfer only that title or right which the mortgagor had in the property at the time of the execution of the mortgage. The purchaser takes that title only, and where the mortgagor had no interest in the property, the purchaser takes none. Where the mortgagor’s interest is less than a fee in the whole estate, the purchaser takes that interest only. Where the mortgagor had a life estate only in the lands, the purchaser acquires such estate only, though he supposed that he was buying the whole title. Wiltsie, supra, § 778, p. 1265.

Many authorities support the principle that, in general, the doctrine of caveat emptor applies to foreclosure under a power of sale contained in a deed of trust, and ordinarily neither the trustee nor the mortgagee is liable to the purchaser for a defect in the title. 59 C.J.S. Mortgages § 587 p. 999. Jones on Mortgages, 7th Ed., Vol. Ill, § 1899a p. 620; Thompson on Real Property (1957 Rep.), Vol. 10, § 5185, p. 261; 55 Am.Jur.2d Mortgages § 780, p. 694.

“While as a general rule the doctrine of caveat emptor applies to foreclosure sales, this rule is not an absolute one; there are many circumstances under which the purchaser, whether the mortgagee or a stranger, may be protected as a bona fide purchaser. ... It [the doctrine of caveat emptor] does not apply where the purchaser, without negligence on his part, has been misled by material mistake or fraud, as where he can show that he was induced to make the purchase by fraudulent conceal-ments or misrepresentations of the creditor, or persons making the sale, as to the condition of the title, and that he did not discover, and could not have discovered with due diligence, the true condition of the title until after the completion of the sale.” 55 Am.Jur.2d Mortgages § 781, p. 695.

A purchaser at a foreclosure sale buys under the doctrine of caveat emptor, although this is a “limited caveat," and the purchaser is required to take notice of everything in the recorded chain of title. Hrovat v. Bingham, 341 S.W.2d 365, 369[3] (Mo.App.1960).

Missouri has long recognized that ordinarily the rule of caveat emptor applies to a foreclosure under a power of sale contained in a deed of trust. In Barnard v. Duncan, 38 Mo. 170 (1866) a trustee sued the defendant who was a successful bidder at a foreclosure sale and had refused to pay the amount of his bid. Defendant claimed that his nonpayment was justified because the deed tendered him did not contain a full warranty of the title and because the land was encumbered to a larger amount than he knew. The deed of trust which had been given to the trustee did contain covenants of warranty of title. The court held that the defendant had no right to demand from the trustee a deed which warranted the title.

“It was a sale by the trustee in his fiduciary capacity only. The trustee undertakes only for the execution of the power that is given him, and he is only authorized to sell and convey the title which is vested in him by the deed. He was not empowered to make a deed in the name of the grantors to him, nor to execute any covenants in their names. Nor can he be required to enter into any personal covenants for title or against encumbrances in general. The only covenant that can be demanded of a mere naked trustee, who has no interest in the property, beyond the bare legal title, in any case of this kind, is the usual trustee covenant against acts or encumbrances done or suffered by himself.” Barnard 38 Mo. at p. 181.

The court, 38 Mo. at p. 183, said: “All purchasers are bound to know that there can be no warranty of the title on such sales, and, it is presumed, it is always so understood. The title is on record; the records are open to all, and the purchasers can examine the title for themselves. There being no warranty, the rule of caveat emptor must necessarily be applied in reference to the conveyance, except as to the ordinary trustee covenant which the vendor (sic) may require. We see no good reason why this covenant should not be required of this trustee. He could not well object to covenanting against acts or encumbrances done or suffered by himself. And if the purchaser had objected to the deed on this ground, there would have been no cause of action against him here. He absolutely refused to complete his purchase unless a deed with full general warranty of title were tendered. We think this amounted to a waiver of any demand for a covenant against the trustee’s own acts merely, and of all objection to the deed that was tendered on that ground alone.”

The court pointed out that the debt, secured by the deed of trust, had also been secured by other deeds of trust and that the land being sold was not the only land covered by the instant deed of trust. Thus the amount of the encumbrances actually existing on the land being sold would be greatly affected by the application of the proceeds of other property sold and the amount to be realized from other property not yet sold. Those matters, said the court, were things which for the most part could be known only to the' trustee and could not be ascertained by an examination of the records in the recorder’s office. They were matters “not equally open to both vendor and vendee.”

38 Mo. at p. 186 the court said: “Where the facts, or means of information concerning the condition and value of the thing sold are equally accessible to both parties, and nothing is said or done which tends to impose on the other, or to mislead him, there is no fraud which the law can notice; but where material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the other party, he is bound to disclose such facts, and to make them known to the purchaser. It is only where such attention on the part of the vendee might enable him to ascertain the facts, and protect himself against surprise, mistake or imposition, that the maxim caveat emptor, in this matter of fraud, ought to be applied to him. The vendor must disclose all material facts of which he knows the vendee to be ignorant. There may be fraud in suppressing and concealing material facts and circumstances, as well as in the misrepresentation, if the other party is knowingly suffered to deal under a delusion.”

The court also said: “In other words, if the purchaser buys real estate and takes a deed without covenant of warranty, he takes the risk of the title on himself; he must examine the title for himself and so far the rule of caveat emptor may be said to apply to him. The misrepresentations or suppression of material facts are matters collateral to the written contract or deed and may be inquired into on the ground of fraud.” Barnard 38 Mo. at p. 187.

Plaintiffs’ first “point relied on” is that the trial court erred in finding in favor of the bank on Count I “because the undisputed evidence disclosed an express warranty of title by the bank.” This is so, say plaintiffs, because: (a) the deed of trust executed by Goff and his wife on December 28, 1972, contained the words “grant, bargain, and sell,” and also stated that the trustee, upon foreclosure, “shall execute and deliver a deed in fee simple of the property sold to the purchaser . . . (b) the “notice of trustee’s sale,” first appearing in the newspaper on May 30, 1974, stated that the trustee would “sell at public vendue all of the real estate described in said deed of trust”; (c) the trustee’s deed dated June 24, 1974, from DeReign as trustee to plaintiffs as grantees, contained, in the granting clause, “bargain, sell, and convey,” and, in the habendum clause, contained “to have and to hold the same unto [plaintiffs], their heirs and assigns”; (d) Harper honestly believed the bank had a deed of trust on the fee simple title and so advised Reeves and Duane.

With respect to (a): It is true that, under § 442.420 the words “grant, bargain, and sell,” contained in the deed of trust, constituted an express covenant that Goff was “seized of an indefeasible estate, in fee simple.” See Allaben v. Shelbourne, 357 Mo. 1205, 212 S.W.2d 719, 720[1] (1948). It is also true that plaintiffs, as grantees in the trustee’s deed, have, with respect to Goff, “all the protection which those covenants could have afforded . . . without any covenant of warranty from the trustee.” Barnard v. Duncan, 38 Mo. 170, 182 (1866). See also Graham v. Finnerty, 232 S.W. 129, 132[5] (Mo.1921). But the covenants in the deed of trust were those of Goff and not those of the trustee or mortgagee.

By the deed of trust Goff covenanted that he had a fee simple and, had he had it, the trustee’s deed, upon foreclosure, would have conveyed the fee simple to the purchaser. If Goff in fact did not have a fee simple the trustee’s deed could not convey it. A reasonable construction of the language quoted from the deed of trust is that Goff covenanted that he had a fee simple and authorized the trustee to convey that title, if such it was, to the purchaser. There was no testimony that plaintiffs or their advisers Duane and Reeves had knowledge, prior to the foreclosure sale, of the contents of the deed of trust. If it be argued that they had constructive knowledge of it because it was on record, the response to that argument is that the same public records showed that Goff had only a life estate and thus could not have mortgaged a fee simple even though the deed of trust purported to do so and contained an express covenant to that effect.

With respect to (b): § 443.320 RSMo 1969, V.A.M.S., referring to the contents of a notice of sale of real estate under a power of sale contained in a deed of trust, requires that the notice set forth “the date and book and page of the record of such mortgages or deeds of trust, the grantors, the time, terms and place of sale, and a description of the property to be sold.”

Two eminent authorities on Missouri property law have said: “An instrument cannot be effective as a deed if it lacks the essential element of a description of the land conveyed. For both engineering and legal purposes land is described by giving its boundaries. This may be done directly by reference to fixed monuments, either natural or artificial; or indirectly by using the name, letter or number to a tract of land by a public or private survey.” (Emphasis added) Possessory Estates, Future Interests and Conveyances in Missouri by Willard L. Eckhardt and Paul M. Peterson, 23 V.A.M.S. § 84, p. 72. See also State v. Grimm, 314 Mo. 242, 284 S.W. 490, 493[5-7] (banc 1926).

Plaintiffs have not directed the attention of this court to any authority holding that “a description of the property to be sold” means other than “giving its boundaries.” More specifically plaintiffs have not cited any authority holding that “a description of the property to be sold” must include a statement with regard to the type of interest or estate held by its owner.

There have been instances where a bidder at a foreclosure sale has been relieved of his obligation to make payment where the notice of sale contained a positive misstatement. In Coons v. North, 27 Mo. 73 (1858) the notice described the land as “a tract of 80 acres” and gave its metes and bounds. The court held that the purchaser was entitled to have the sale set aside on the ground of mistake when a subsequent survey disclosed that the land contained only 23 acres. Such is not the situation here. The instant notice was accurate in stating that the “trustee would sell at public vendue all of the real estate described in said deed of trust.” To accord that language any meaning beyond the one that the trustee would sell the mortgagor’s interest in the real estate described in the deed of trust would be placing upon it a construction inconsistent with the doctrine of caveat emptor. Plaintiffs have cited no authority justifying such a construction.

This is not to say that it would not have been better if the notice of sale had volunteered the information that Goff’s interest was only a life estate. Even if the notice did not so state, an announcement to that effect could have been made at the sale itself. On the other hand if such information had been stated, and Goff in fact had something less than a life estate, obvious difficulties would have been presented.

There is authority that if the notice of sale attempts to describe the state of the title to the property, the description must be “exact and accurate.” 59 C.J.S. Mortgages § 565f p. 936. There is also authority that a foreclosure under a power of sale will be set aside where the mortgagor had no title or interest and the mortgagee with knowledge of that fact advertised the land for sale under the mortgage. Dirks Trust & Title Co. v. Koch, 32 S.D. 551, 143 N.W. 952 (1913).

Some authorities hold that, in the foreclosure of a second mortgage, the notice need not mention the existence of the prior mortgage, Scroggins v. Harper, 138 Ga.App. 783, 227 S.E.2d 513, 515[2] (1976) (although stating it would have been the better practice to do so), Flax v. Mutual Building & Loan Association, 198 Mich. 676, 165 N.W. 835[4, 5] (1917); Myers v. Carr, 173 Okl. 335, 47 P.2d 156, 161[5, 6] (1935). As expressed in Barnard, supra, “the title is on record; the records are open to all, and the purchasers can examine the title for themselves.”

It should be noted that plaintiffs did not rely upon the contents of the notice as evidencing the nature of Goff’s title, for Elmo’s investigation of the title, through the conversations with DeReign and Harper, took place after Elmo saw the notice. Any misconception arising from the notice, and this court finds that none properly could have arisen, should have been dispelled by the detailed information given by DeReign to Duane concerning the nature of Goff’s title, which information was relayed by Duane to Elmo and Reeves. Moreover, if the trustee’s deed, as discussed in (c), contained no warranty of a fee simple title, plaintiffs may not, absent fraud or mistake, look to the notice because the respective rights of the parties were merged in the trustee’s deed which was delivered to and accepted by plaintiffs. Barger v. Healy, 276 Mo. 145, 207 S.W. 499 (banc 1918).

With respect to (c): The trustee’s deed does contain, as stated by plaintiffs, the language “I, the undersigned trustee, . do bargain, sell and convey unto [plaintiffs] [the described real estate] to have and to hold the same unto the said [plaintiffs], their heirs and assigns.” The words required by § 442.420 RSMo 1969, V.A.M.S. to import an express covenant of a fee simple title are “grant, bargain, and sell.” The instant words “bargain, sell, and convey” do not import such a covenant. Gill on Missouri Titles (4th Ed.), Yol. I, § 197, p. 174; 21 C.J.S. Covenants § 10 p. 890.

Plaintiffs contend that the language of the habendum clause imports a warranty of a fee simple title. Section 442.460 V.A. M.S. provides: “The term ‘heirs’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple, and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.” Thus the language of the trustee’s deed would have been sufficient, as a conveyance to pass a fee simple title if Goff had held such and this would be true under the statute even if the word “heirs” had not been used. But plaintiffs’ argument that the use of the word “heirs” imports an express warranty of a fee simple title is unsupported by citation, statutory or otherwise. That argument is rejected.

With respect to (d): This prong of defendant’s first point is premised on an erroneous factual assumption. Harper did not tell Reeves that the bank had a deed of trust on the fee simple title. What Harper did tell Reeves has been set forth. Reeves himself did not testify.

With respect to what Harper told Duane, as previously stated, Duane said that Harper “on his own” did not lead him to believe that Goff had a good fee simple title; Harper merely quoted what DeReign had said. Of course Duane also talked to DeReign and knew that DeReign’s opinion was that Goff did not have a fee simple. It was Harper’s testimony that he told Duane that “I just could not give him any information.” The trial court was justified in believing the latter testimony.

It is true that Harper testified that he believed, at the time of the foreclosure, that the bank had a deed of trust on the fee simple. However, he also said that he did not recall, but did not deny, that DeReign had told him otherwise at the time of the delivery of Exhibit A in 1972. On the issue of whether the bank made an express warranty of title, which is plaintiffs’ contention in their first point, Harper’s knowledge or ignorance of the nature of Goff’s title would not be controlling. If there was an express warranty, Harper’s knowledge that Goff had only a life estate would not, standing alone, extinguish it. If there was no express warranty, Harper’s misconception that Goff had a fee simple would not, standing alone, create it. See 21 C.J.S. Covenants § 38 p. 908.

Plaintiffs argue that “It has long been the law that a sale of personal property implies a title on the part of the seller/’ and say that this doctrine should be applied to real estate sales. This contention is not lacking in appeal but it should be addressed to the legislature. The author of the article cited in footnote 4 says, at p. 17, that it is a matter of policy whether “one who sells and conveys real property ought to be held to warrant the title as in the case of sales of personal property. There seems to be no good reason why a man should be permitted to represent that he owns land by purporting to convey fee simple title thereto, and escape liability merely because he has not expressly convenanted that he has good title. Historically, this has not been the law as to real property but originally there was no implied warranty of title on sale of personalty. As to personalty the law was gradually changed by judicial decision and perhaps a like change would have taken place in real property law, were it not for the reluctance of courts to change the law as to realty by judicial decision. A proper legislative change is therefore to be commended, but such law ought to be made to apply to all conveyances of real property for a valuable consideration, and ought not to be limited to conveyances in fee simple which contain the words, ‘grant, bargain and sell.’ Such a statute has long existed in England.” See Dickson v. Desire’s Adm’r, 23 Mo. 151, 159 (1856).

Plaintiffs’ first point fails because (a), (b) and (c), although factually accurate, do not justify a finding of express warranty of title by the bank, a conclusion undisturbed by (d), the latter being factually unsound.

Plaintiffs’ second “point relied on” is that the trial court erred in not finding in their favor on Count II “because the undisputed evidence disclosed there was a mutual mistake of fact. Both plaintiffs and defendant believed, in good faith, that the foreclosure sale would convey good title.”

' This contention lacks foundation in fact. DeReign, who acted on behalf of the bank (and Goff), as trustee, knew (and the bank knew) that Goff had only a life estate. Moreover, that knowledge was conveyed by DeReign to Duane and by the letter to Elmo and Reeves. The information given by DeReign was replete with “storm warnings.” — “A purchaser would be buying a lawsuit.” — “If I were you I would not be interested in buying the property.” — De-Reign would not “pass the title.” — DeReign “was spooked about the title.” DeReign went over the abstract with Duane and explained to him why DeReign did not think Goff had a fee simple title.

Plaintiffs were represented by a banker and a lawyer. A layman could understand, from the message DeReign conveyed to Duane, that the condition of Goff’s title was, to say the least, in doubt. Far from concealing from Duane the condition of the title, DeReign painstakingly pointed out its defects.

The plaintiffs argue that there was “a mistake of fact” on the part of the bank in believing that Goff had a fee simple title in that Harper so thought. But it was De-Reign, as trustee, who was conducting the foreclosure for the bank, as its agent, and there is no doubt that DeReign knew that Goff had only a life estate and had imparted that knowledge to plaintiffs by his conversation with Duane.

Plaintiffs’ assertion that they were mistaken about the title is based on testimony by Elmo to the effect that he believed “the bank had a good deed of trust,” after receiving Reeves’ letter of June 7, 1974. “With the storm signals up plaintiffs easily could have settled the uncertainty and ascertained the truth of the facts by having the property lines surveyed before making their bid but they did not do so. Equity will not relieve against mistake when the complaining party had within his reach the means of ascertaining the true state of facts and, without being induced by the other party, neglected to avail himself of his opportunities of information. Brown v. Fagan, 71 Mo. 563; Barrett, Fitch, North & Co. v. Hudson, Mo.App., 403 S.W.2d 944, 947[2].” Croy v. Zalma Reorganized School District R-V, 434 S.W.2d 517, 522[7] (Mo. 1968). See also S. G. Payne & Co. v. Nowak, 465 S.W.2d 17, 20[3] (Mo.App.1971).

Why did plaintiffs, having been warned by DeReign of the nature of Goff’s title, proceed to purchase? Perhaps the answer lies in evidence offered by the plaintiffs to the effect that Reeves, after informing Elmo that he had checked the title and it was all right, “voiced the opinion that Mr. DeReign’s refusal to comment upon the title or let anyone examine a copy of his title opinion was probably prompted, in Reeves’ opinion, by a desire to sell an abstract or require the services of an examining attorney to obtain a title opinion and not any effort to conceal a mistaken title opinion.” This mistake on the part of Reeves, as to DeReign’s motives in not permitting Reeves to have a copy of Exhibit A, was not a mutual one. The bank had no knowledge of it.

Exhibit A was written in 1972. Although its contents were literally correct, it could easily have been misleading, as DeReign testified. The fact that Exhibit A’s contents were true did not justify the conclusion that Goff had a fee simple. Indeed it is plaintiffs’ theory in this action that Goff had only a life estate and that Case No. 16106 and the opinion of the supreme court in 262 S.W.2d 851 did not have the legal effect of confirming a fee simple title in Goff. Yet those are the only material recitals in Exhibit A. Plaintiffs’ untenable position is that Reeves was entitled to reach the conclusion that Goff had a fee simple title based upon the contents of Exhibit A which Harper read to him, and at the same time plaintiffs are claiming that the recitals in Exhibit A, although literally true, do not justify that conclusion.

Exhibit A could mislead its reader and was probably calculated to do so. This court condemns Exhibit A and the type of draftsmanship it represents. “A true representation may not be used to create an impression substantially false for the purpose of deception.” Stone v. Hammons, 347 Mo. 129, 146 S.W.2d 606, 608[9] (1940). If Exhibit A had been the only information imparted to plaintiffs, or their banker and attorney, a different situation would be presented. The trial court, however, properly could have found that Exhibit A did not, directly or indirectly, induce plaintiffs’ purchase.

Plaintiffs and Duane and Reeves could not have been misled by Exhibit A for the reason that DeReign explained at length to Duane that Goff had only a life estate and gave him the various admonitions which in turn were relayed to Elmo and Reeves. Plaintiffs and their banker and lawyer knew that regardless of what Exhibit A, in 1972, said or purported to say with respect to Goff’s title, its author DeReign was of the opinion, in 1974, and prior to the foreclosure sale, that Goff had only a life estate. Reeves also knew that DeReign was the attorney and title examiner and that Harper, a layman, was merely reading to him DeReign’s opinion as set forth in Exhibit A. There was no mutual mistake and plaintiffs’ second point is without merit. Croy v. Zalma Reorganized School District R-V; S. G. Payne & Co. v. Nowak; both supra; Barrett, Fitch, North & Co. v. Hudson, 403 S.W.2d 944 (Mo.App.1966).

Plaintiffs’ third “point relied on” is that the trial court erred in not finding in their favor on Count III “because the undisputed evidence discloses unfairness and misconduct by the trustee in the foreclosure sale” in that the trustee rendered an erroneous title opinion (Exhibit A) but did not disclose the true facts to the bidders at the sale. Further, plaintiffs say, DeReign’s instructions to the bank not to let anyone see Exhibit A “denotes active concealment.”

In Nixon v. Franklin, 289 S.W.2d 82 (Mo. 1956), an action by the purchasers of land to rescind the transfer, defendant Franklin knew he had only a life estate. The contract provided that Franklin would convey to plaintiffs “merchantable title.” Franklin gave plaintiffs a warranty deed which included “grant, bargain, and sell.” The court held that the plaintiffs were entitled to rescission and were not limited to an action on the covenants.

The court said that “apart from any affirmative misrepresentation, C. H. Franklin was obliged to disclose any impairment of his title known to him.” Nixon, 289 S.W.2d at p. 88. On the same page the court said: “Courts of equity, in dealing with the subject of fraud in transactions between parties, have long since fully recognized that there are certain acts, when done willfully and intentionally respecting a transaction between the parties, would constitute actual fraud, and that the omission to do certain things, or the concealment of facts which are material to the party with whom you are dealing, by which an undue advantage is taken of your adversary in the deal, would also constitute a fraud, not upon the basis that the omissions or concealments were willful and intentional, but predicated upon the ground that it operated as a fraud upon the party with whom you are dealing.”

A trustee at a foreclosure sale “acts as the trusted agent for all parties and must protect all of them” and “where the trustee’s conduct in conducting a foreclosure sale is unfair and causes injury to one of the parties even though such conduct was unintentional, the sale is tainted.” Stone v. Hammons, supra, 146 S.W.2d at 608[5]. A foreclosure sale may be set aside for the misconduct of the mortgagee. Stone, 146 S.W.2d p. 608[7].

In Hayes v. Delzell, 21 Mo.App. 679 (1886), a trustee failed to disclose that a portion of the land mentioned in the foreclosure notice read at the sale had been previously released. The trustee was held liable, in an action for deceit, to the purchaser who was unaware of the prior release.

It is true that DeReign made no announcement at the sale concerning Goff's title. Whether or not he had a duty to do so need not be decided for the reason that plaintiffs are not in a position to complain about his silence at the sale. Prior to the sale DeReign made total disclosure to plaintiffs, through Duane, of the condition of Goff’s title. Plaintiffs’ third point has no merit.

The judgment is affirmed.

HOGAN, J.,

concurs.

BILLINGS, C. J., dissents in separate dissenting opinion filed.

BILLINGS, Chief Judge,

dissenting.

I dissent.

I would hold that in view of Exhibit A, which was read to Reeves by Harper, one could justifiably conclude that DeReign had approved the title and Goff had mortgaged a fee simple title to the bank. Further, that under the facts and circumstances outlined in the principal opinion the bank’s attorney, DeReign, serving as trustee at the foreclosure sale, had an affirmative duty at the sale to disclose the true condition of the title — in view of his prior title opinion and after thoughts. At the very least, in my opinion, the parties were mistaken as to Goff’s title and a court of equity should grant plaintiffs’ relief.

      . As a witness for defendant, DeReign testified that in his opinion Goff “had more than a life estate but less than a fee simple.”

      . Exhibit A is in error in stating that the docket number of the circuit court action was 10106. The correct number was 16106. The parties to this appeal make no mention of this discrepancy.
      The decree in Case No. 16106 contains the language quoted in Exhibit A. It is also true that in Hutchison v. Goff, 262 S.W.2d 851 (Mo. 1953) the judgment was affirmed. However, the only issue before the supreme court was the construction of a deed in which the grantees were Laura Goff and her husband. The opinion of the supreme court contains no statement defining George E. Goffs interest in the land — whether a life estate, a fee simple, or something else. The claim in the instant appeal that George E. Goff had only a life estate is based on the language contained in the will of Laura Goff in which she devised to George E. Goff the residue of her estate “to have and to hold for his natural life, with power to dispose of the personal property, but the real estate shall descend to the bodily heirs of the said George E. Goff, my grandson, upon his death.” The opinion of the supreme court dealt with the construction of the deed and not with the construction of the will, although the latter was quoted.

      . Although there are some discrepancies in the evidence with regard to the contents of the various conversations summarized, there was general agreement on the essentials of the conversations. The record is not clear with respect to the sequence of the conversations. This court believes that all of the witnesses for both sides were truthful and that the discrepancies, such as they are, are due to fallible memories.

      . “Presumably if any (only?) two of the three chief words in [§ 442.240] should be used, while the instrument would be effective as a conveyance, the grantor would not be bound by any statutory covenants. It has been so held in other states which have similar statutes. See Wheeler v. County of Wayne (1890) 132 Ill. 599, 24 N.E. 625; Gee v. Pharr (1843) 5 Ala. 586.” Simonton, Statutory Covenants for Title in Missouri, 28 U. of Mo.Bull.L.Ser. 3, 11. “One who knows the law can easily avoid the effect of the statute, either by using appropriate ‘restraining words’ or by refraining from the use of the complete magic formula.” Ibid, p. 17.

      . “A conveyance . is . good without a warranty or personal covenants. Covenants in a deed are not part of the conveyance, but are separate contracts, and title passes independently of them.” 26 C.J.S. Deeds § 22e p. 628.

      . “Real estate transactions, except for fixtures in relation to secured transactions, are not covered by the [Uniform Commercial] Code.” 15A Am.Jur.2d Commercial Code § 2, p. 457.

      . L.R. 17 Statutes 115-206. (44 & 45 Viet. Ch. 41, sec. 71)


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James Alvin HARRIS, Appellant.
    No. 38357.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 13, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Robert C. Babione, Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Ott, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

The state charged defendant, a second offender, with feloniously assaulting Dennis Washington by stabbing him with a knife. A jury found Harris guilty and the trial court imposed a three-year sentence.

Harris appeals, raising only two points, each related to the state’s cross examination of his character witness. He first contends the court erred in allowing the state to frame questions about his previous conviction and arrests as statements of fact for which the state vouched. Allied to this, defendant contends the court erred in denying a mistrial because the prosecutor referred to a document, inferentially defendant’s arrest records.

On direct examination character witness Frances Harris testified she had lived all her life in defendant’s neighborhood and had discussed his character with his acquaintances. She was aware of his reputation for peacefulness, stating, “He’s a friendly person, easy to get along with and always tries to make friends with everybody.”

On cross examination, to quote defendant’s brief, “The prosecutor asked Mrs. Harris if she thought the opinion of others in the community concerning Mr. Harris’ reputation for non-violence, truth and veracity would change if they knew defendant was convicted of carrying a concealed weapon, had been arrested for stealing over fifty dollars, had been arrested for violation of Missouri controlled substance law, had been arrested for gambling by dice, was arrested for ‘stealing under fifty,’ had been arrested for statutory rape.” The witness answered “No” except as to the last question.

On this appeal defendant contends these questions were framed to impart the impression the defendant was guilty of other crimes. We do not agree. The questions concerned the character witness’ knowledge of other facts that could bear upon her stated opinion that defendant bore a good reputation.

We accept defendant’s argument that jurors may misconstrue such questions about a defendant’s reputation as indicating facts of misconduct. That is a risk a defendant takes when he presents testimony of his good character. As said by Bennick, J., in State v, Carson, 239 S.W.2d 582[3-6] (Mo.App.1951): “When defendant elected to put his character in issue, he thereby subjected his witnesses to legitimate cross-examination upon the subject of inquiry, and himself to such disaster as might result therefrom.”

We adhere to the principle that “. . .on cross-examination of character witnesses, inquiry as to whether they have heard rumors of specific acts of misconduct which reflect upon the defendant’s character is permissible to test their knowledge, the trustworthiness and accuracy of their information, the basis for their judgment, their candor and their credibility.” State v. Slade, 338 S.W.2d 802[11] (Mo. 1960). We quote from State v. McCoy, 458 S.W.2d 356[1] (Mo.1970): “[where witnesses] were asked on direct examination to state their opinion of defendant’s reputation for quiet and peaceful manner, and each answered that it was good. The state, upon cross-examination, asked if their opinion would be the same if they were to consider former arrests or convictions for burglary, petty stealing, carrying concealed weapons, and robbery. Such questions were within the discretion accorded the trial court in its control of cross-examination.” On this issue of permissible cross examination of character witnesses, see also State v. Haven, 177 S.W.2d 625[12, 13] (Mo.1944), State v. Mitchell, 339 Mo. 228, 96 S.W.2d 341[2-4] (1936), and 47 A.L.R.2d 1258 (§§ 3, 5).

We hold the court properly overruled defense objections to the form of questions put to defendant’s character witness on cross examination.

Defendant also contends he was entitled to a mistrial when the prosecutor referred to a document, inferentially defendant’s arrest record. Considered out of context this would be erroneous as improper factual evidence of prior arrests. We consider the point in context.

On redirect examination of his character witness defense counsel referred to her previous answers about knowing of defendant’s previous conviction and arrests. He then asked her whether neighbors “had ever heard of any of those things” and she answered, “No.” Defense counsel then argumentatively said: “Then all those allegations are alleged things . . . .” The prosecutor interrupted: “I object to the form of the question. It’s argumentative. The state asked that question in good faith and has the record right here . . . .” The court sustained defendant’s objection to the remark but denied a mistrial, declaring: “Members of the jury, the court has sustained the defendant’s objection to the State’s attorney’s last statement, to-wit: And this, as I read it to you, is to be disregarded by the jury. ‘The State asked that question in good faith and has the record right here.' ”

The prosecutor’s remark was not uninvited. While the prosecutor was cross examining the character witness about arrests, defense counsel repeatedly objected to the prosecutor “attempting to say these are facts . . . which are untrue . ■ . it is a lie,” arguing erroneously that the prosecutor was equating arrests with convictions. Then, when defense counsel said “these allegations are alleged things,” the prosecutor responded by saying, “The state asked that question [about arrests] in good faith and has the record right here.” In denying a mistrial the trial court properly exercised its discretion because the objectionable remark was retaliatory and not patently prejudicial. It did not warrant the drastic action of a mistrial. Compare State v. Thompson, 531 S.W.2d 63[1, 2] (Mo.App. 1975).

Judgment affirmed.

DOWD and SMITH, JJ., concur.

      . The question should have been whether the opinion of the character witness herself, not the opinion of others, would be affected by knowledge of the defendant’s prior conviction and arrests. Compare State v. Wilson, 248 S.W.2d 857[7, 8] (Mo. 1952), and State v. Livers, 340 S.W.2d 21 [6] (Mo. 1960), and State v. Slade, post, and State v. McCoy, post. Defendant has not raised this issue.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry JOHNSON, Defendant-Appellant.
    No. 38569.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 13, 1977.
    Motion for Rehearing and/or Transfer Denied Oct. 11, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael L. Sullivan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
    Robert C. Babione, Public Defender, James W. Whitney, Jr., Asst. Public Defender, St. Louis, for defendant-appellant.
   DOWD, Judge.

Defendant Terry Johnson was convicted by a jury in the Circuit Court of the City of St. Louis of Robbery in the First Degree by means of a Dangerous and Deadly Weapon. §§ 560.120, 560.135, RSMo 1969. The court sentenced the defendant to ten years in the custody of the Missouri Department of Corrections. Defendant appeals. Defendant does not challenge the sufficiency of the evidence, therefore only a brief review of the facts is required.

On October 24, 1975, defendant and one Calvin Bronaugh were apprehended shortly after the robbery of Imo’s Pizza, an establishment in the City of St. Louis. The waitress who was held at gunpoint during the robbery identified both the defendant and Bronaugh. Both were charged with Robbery in the First Degree by means of a Dangerous and Deadly Weapon.

During the voir dire examination, the prosecutor made the following statement in questioning -the prospective jury panel,

“Okay. As I indicated to the first group, you heard me tell them why I asked that last question. It’s because if you, yourself, have been a victim of a crime and some of you folks have been a victim of a crime practically identical to this crime »

Defendant’s counsel objected on the grounds that the comment was on evidence which had not been given. The trial judge sustained the objection as “to the form of it.” Defendant’s counsel entered a motion to quash the entire jury panel on the grounds that the comment was prejudicial and would deny the defendant his right to a fair trial. The trial judge denied the request.

After a motion to suppress an out of court identification of the defendant was denied, the state presented its case. Defendant’s motion for acquittal was denied at the close of the state’s case. Defendant presented no evidence.

The jury returned a verdict of guilty and the defendant was sentenced as set out above. This appeal followed the denial of a post-trial motion.

Defendant raises one issue on appeal. Defendant contends the court erred in denying his motion to quash the entire jury panel after the prosecutor’s “prejudicial” comment during the voir dire examination. In essence, defendant contends he was denied his right to a fair trial due to the prejudicial nature of the prosecutor’s comment.

Examination of jurors as to their ability to render an impartial verdict is conducted under the supervision of the trial court, and the nature and extent of examination by counsel is largely within the discretion of the trial court. State v. Mudgett, 531 S.W.2d 275 (Mo. 1975), cert. denied, 426 U.S. 910, 96 S.Ct. 2234, 48 L.Ed.2d 835; State v. Scott, 515 S.W.2d 524 (Mo.1974). On review, appellate courts “will differ or interfere with the exercise of that discretion only when the record shows a manifest abuse of discretion and a real probability of injury to the complaining party, . such discretion applies also to control of specific questions.” State v. Scott (Supra at 527). This discretion extends to the granting of challenges for cause on grounds beyond those specifically set out in the statute. State v. Huffer, 424 S.W.2d 776 (Mo. App.1968). We fail to see an abuse of discretion in not granting defendant’s motion to quash the entire jury panel. Cf. State v. Kiner, 441 S.W.2d 720 (Mo.1969).

The statement made by the prosecutor makes no reference to the defendant. Its apparent purpose was to ascertain whether any veniremen had been victims of a crime. Absent further comment, a mere reference to the fact that some veniremen had been victims of a crime “practically identical” to the crime involved in this case did not inculpate the defendant. See State v. Watson, 511 S.W.2d 890 (Mo.App.1974); Humphrey v. State, 502 S.W.2d 251 (Mo.1973).

The fact that the trial judge sustained the defendant’s objection as to form is worthy of note. The trial judge recognized the statement may be misleading or possibly create a prejudicial inference, and was therefore improper. However, an improper statement on part of counsel during voir dire does not necessarily require declaration of a mistrial or discharge of a jury. M & A Electric Power Co-op v. True, 480 S.W.2d 310 (Mo.App.1972). The trial judge is in a superior position to measure the overall effect of a statement on the jury’s ability to render an impartial verdict. Absent a more flagrant outburst on the part of the prosecutor, we are unable to say the failure to grant defendant’s motion to quash the entire jury panel was an abuse of discretion. See State v. Johnson, 534 S.W.2d 844 (Mo.App.1976).

For the reasons stated above, the judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . This statement is set forth in the transcript as an “excerpt taken from voir dire examination.” This is the only portion of the voir dire examination contained in the transcript. The “last sentence” is not included.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmy Lee JONES, Defendant-Appellant.
    No. 10346.
    Missouri Court of Appeals, Springfield District.
    Sept. 15, 1977.
    Motion for Rehearing or to Transfer Denied Oct. 5, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Theodore A. Strecker, LeCompte & Strecker, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

A Greene County jury found defendant Jimmy Lee Jones guilty of second degree murder of Carol Jean Wiles and fixed his punishment at life imprisonment. His assignments of error in this appeal involve the trial court’s rulings on the admissibility of testimony of three witnesses. We affirm.

The sufficiency of the evidence to support the jury’s verdict is not questioned. Defendant, a procurer for the deceased, testified he fatally stabbed Carol but claimed he did so in self-defense.

Defendant’s first point is that his objection to the testimony of witness Bryan should have been sustained because it “showed difficulties between defendant and third persons and attempted to show a turbulent nature of the defendant.”

We find no merit in defendant’s attack on Bryan’s testimony. Bryan, the defendant, and others were in the Blue Ribbon Bar in Springfield the night of, and several hours before, Carol’s slaying. Two men in the bar wanted Bryan to leave and asked him “to step outside.” The three men went outside the bar. There was no altercation or fight. The defendant then came out of the bar and after the two men had left Bryan, the defendant told Bryan that if the twosome had jumped him, he, the defendant, was going to help him. Defendant told Bryan he was his friend. He advised Bryan he should forget Sheila Cooper so Bryan would not get involved with Sheila like defendant was with Carol. He told Bryan he was Carol’s pimp, and in love with her but she did not love him.

Bryan’s testimony was evidence of defendant’s relationship with and feelings toward Carol. This was proper. State v. Johnson, 349 Mo. 910, 163 S.W.2d 780 (1942). The state was entitled to show the entire conversation between defendant and Bryan, State v. Stewart, 542 S.W.2d 533 (Mo.App. 1976), and the initial part of Bryan’s testimony was merely explanatory of the circumstances which brought on the conversation. There was no evidence whatsoever that defendant was involved in any “difficulty” that Bryan and the two men may have had that night. Defendant’s statement in his brief that the defendant was involved in the “difficulty” is not supported by the record. The trial court did not err in overruling defendant’s objection and denying his motion for a mistrial.

Defendant’s remaining point avers the trial court was guilty of an abuse of discretion in permitting, over objection, the victim’s daughters, ages 8 and 10, to testify. Both children were asleep in their mother’s hotel room in the early morning hours when they were awakened by voices of defendant and their mother.

Vanessa, age 8, said she was awakened by her mother and the defendant talking. She next observed her mother and sister [Nond-ice] running out of the door of the room and she followed them, but was prevented from leaving by the defendant who grabbed and dragged her on the carpet. She escaped by kicking the defendant and followed her mother and sister. She saw her mother was bleeding.

Nondice, age 10, was awakened by her mother’s screams. The defendant was standing behind her mother with a knife in his raised hand. Nondice said she jumped and screamed, and that defendant turned and hit her in the mouth with the knife. Her mother ran from the room and Nondice followed her.

The St. Louis District reviewed at length, in an opinion by Dowd, J., in State v. Ball, 529 S.W.2d 901 (Mo.App.1975) the rules and principles governing the admissibility of testimony by children of tender years. “Qualification of a child witness is not an abuse of discretion when it appears that the child has: (1) present understanding of or intelligence to understand on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.” State v. Ball, supra, at 904-905.

Here, the trial judge presided over a complete voir dire of both witnesses, after which he determined that each possessed the elements expressed in Ball and were competent to testify. Defendant claims that internal inconsistencies in the children’s testimony rendered them incompetent to testify. We disagree. The alleged inconsistencies, in the main, related to collateral matters. The phrasing of several of the questions may have contributed to seemingly contradictory answers. The daughters’ testimony was not so inconsistent as to be impossible. State v. Jones, 360 Mo. 723, 230 S.W.2d 678 (1950). The inconsistencies referred to by defendant in his brief merely affected the credibility of Vanessa and Nondice and did not render them incompetent as witnesses. State v. Obie, 501 S.W.2d 513 (Mo.App.1973).

The defendant admitted he stabbed Carol following her advising him she was in love with another man and the argument which ensued. The jury rejected his claim he was acting in self-defense. The record reflects the defendant received a fair trial and we find no error.

The judgment is affirmed.

All concur.


author: SIMEONE, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Edward TIPPETT, Defendant-Appellant.
    No. 38568.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 20, 1977.
    Motion for Rehearing or for Transfer Denied Oct. 13, 1977.
    Application to Transfer Denied Nov. 14, 1977.

      Karl P. Lang, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SIMEONE, Chief Judge.

Appellant, James Edward Tippett, was charged, tried, found guilty by a jury and sentenced under the Second Offender Act to five years for the offense of carrying a concealed weapon, §§ 564.610, 556.280, RSMo. He appeals. We affirm.

On April 1, 1976, an officer of the St. Louis Police Department received a telephone call from an informant who had given him information previously. The officer arranged to meet the informant. The informant met two officers and gave information that three men, including appellant, were enroute to a local lounge in an automobile which he described (including the last three digits of the license), that there were handguns in the car and that the men were enroute to obtain a sawed-off shotgun for the purpose of shooting someone. The informant was not identified but had given information in the past which led to several arrests and one conviction. A short time later, at about 1:05 a. m., the two officers proceeded to the lounge and soon an automobile fitting the description pulled up in front of the lounge. The officers observed appellant and another man get out of the car and walk to the window of the lounge. Appellant peered in the window and engaged the other man in brief conversation. Appellant returned to the automobile, opened the door, reached beneath the seat and handed “some type of small dark object” to the other man. Appellant then reached again beneath the seat and removed another object and placed it in his jacket pocket. The officers came up to the men and informed them that they were being investigated. One of the officers then conducted a pat down search of appellant’s outer clothing. “. . .1 felt an object which I believed to be a revolver in his right jacket pocket. I then entered the pocket and retrieved what was later identified as a Colt .38 revolver.” Appellant was then placed under arrest and charged with carrying a concealed weapon.

Appellant filed a pre-trial motion to suppress the revolver which was overruled. The trial was held and the jury found him guilty of carrying a concealed weapon. After allocution and after overruling a motion for new trial, appellant appealed.

Appellant’s only contention on appeal is that the trial court erred in overruling the motion to suppress the gun because the seizure was “unlawful” and “violated” his “constitutional rights.” He argues that the information obtained from the unnamed informant, together with the observations of the officers, did not give reasonable grounds to search appellant. He reasons that before the information given by the informant “will suffice as a basis for probable cause in which an arrest can be made or a search warrant issued, it is necessary to establish the basis for the officer’s belief that the informer’s information is reliable” and that in this case the informant was not proven reliable because (a) the officers could not identify some person who had been convicted on the basis of previous information given by the informant and (b) there was no underlying factual basis for the reliability of the information furnished. The State argues that the court did not err because the seizure was made incident to a limited pat down search after the officers concluded that criminal activity was afoot.

We find appellant’s point to be without merit. The facts and circumstances, based upon the information furnished and the officers’ own observations, were sufficient to give the officers sufficient grounds to approach appellant for purposes of investigating criminal behavior and conduct a limited search to discover weapons under the principles established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); and State v. Sanders, 530 S.W.2d 749 (Mo.App.1975). The circumstances here and the arguments made are closely akin to the decision in Adams v. Williams.

The appellant contends that, before the information from the informant will suffice as a basis for probable cause in which an arrest can be made or a search warrant issued, it is necessary to establish a basis for the officer’s belief that the information is reliable. There is no absolute requirement that the informant be one of previous reliability. The true inquiry is whether the informant’s information is reliable and whether the information is corroborated through other sources even though hearsay. State v. Wiley, 522 S.W.2d 281, 288 (Mo. banc 1975). Here the informant named the suspects, described the car, reported part of the license plate, the plans, destination and contents of the car. The information was corroborated by the personal observations of the officers which gave rise to a reasonable conclusion that criminal activity was afoot. That the officer did not inquire into the source of the informant’s information did not make reliance on it unjustifiable. The informant was known to the officers; he had previously supplied them with reliable information; the informant was reliable and the information was verified. State v. Boyd, 492 S.W.2d 787, 789-790 (Mo.1973). The officers’ failure to remember the name of the person who had been convicted on the basis of previous information given by the informant is not material.

The appellants reliance on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and his argument that there was no explanation as to why the information was reliable are misplaced. Aguilar and Spinelli deal with warrants to search. They do not deal with the situations found in Terry and Adams. The requirements of “probable cause” and the standards relating thereto are not identical to the standards of a limited intrusion under the principles of Terry v. Ohio. In justifying the particular intrusion the officer must be able to point to “specific and articulate facts” which, taken together with rational inferences from those facts, reasonably warrant that intrusion. “. . . [A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 88 S.Ct. at 1880.

There were present here sufficient facts, based both on information furnished by the informant and on the officers’ personal observations, to provide reasonable grounds for further investigation and grounds for a limited search of the appellant for a weapon. As in Adams v. Williams, the policeman found the appellant in possession of a gun in the place predicted by the informant. And, as in Terry v. Ohio, defendant was convicted of carrying a concealed weapon.

We have read the transcript, the briefs of the parties and the authorities relied upon therein. We find no error.

The judgment is affirmed.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.

      . The facts in Adams v. Williams are remarkably similar to the facts at bar. In Adams, the respondent was convicted of illegal possession of a handgun found during a “stop and frisk.” A policeman was informed by a known informant that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. The policeman approached the vehicle, tapped on the window and seized a gun from defendant’s waistband. Once the policé-man found the gun there was cause to arrest. The court rejected defendant’s argument that reasonable cause for a stop and frisk can be based only on the officer’s personal observation. The information supplied by the known informant was sufficient in this instance and . . the subtleties of the hearsay rule should not thwart an appropriate police response." Adams v. Williams, 92 S.Ct. at 1924.


author: REINHARD, Judge.

text:
    In the ESTATE of Ollie Edith SHEETS, Jo Ann Griffin and Carolyn Kittleson, Plaintiffs-Respondents, v. Martin E. SHEETS, Jr., Defendant-Appellant.
    No. 37889.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.

      Steiner & Fenlon, Joseph A. Fenlon, Jr., St. Louis, for defendant-appellant.
    Richard M. Marshall, Clayton, Phillip M. Sestric, St. Louis, Patrick Fiandaca, Pub. Adm., Clayton, for plaintiffs-respondents.
   REINHARD, Judge.

This is an appeal by Martin E. Sheets, Jr. from a decree declaring title to a certificate of deposit and a savings passbook to be in respondents Jo Ann Griffin and Carolyn Kittleson, respectively. The certificate of deposit was issued by United States Postal Savings Association on February 6, 1974, in the amount of $20,000.00, to Edith Sheets and Jo Ann Griffin, as joint tenants with right of survivorship. The passbook savings account, in an amount in excess of $20,000.00, originally was established as an individual account by Edith Sheets and then changed to a joint account on September 19, 1973, in the names of Edith Sheets and Carolyn Kittleson, as joint tenants with right of survivorship. Based upon the standard of review in a court-tried case established in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), we affirm.

Edith Sheets died on January 25, 1975. Martin Sheets, Jr., as executor of her will, discovered the certificate and passbook while conducting a will search and subsequently delivered same to the administrator pendente lite. Thereafter, respondents petitioned the probate court, seeking a declaration of title to said property. From a ruling in favor of respondents, Martin Sheets, Jr. appealed to the circuit court. In his amended answer appellant claimed that the title to the funds in the separate joint accounts belonged to the descendants of his father, Dr. Martin Sheets, based on a theory of constructive trust. What follows is a summary of the evidence pertinent to appellant’s claim.

In 1942, Dr. Martin E. Sheets, a widower, and Miss Ollie Edith Ellis, Dr. Sheets’ housekeeper and then a recent divorcee, were married. No children were born of the marriage. Dr. Sheets died on September 17, 1970, and was survived by his wife, Edith, his son by the previous marriage, Martin E. Sheets, Jr., and the children of Dr. Sheets’ deceased daughter, Lowell Frei and Doris McMenamy. Respondents Jo Ann Griffin and Carolyn Kittleson are nieces of Edith Sheets.

Martin Sheets, Jr. testified that, while his father was alive, he assisted Edith and Dr. Sheets with their financial affairs and property investments. On numerous occasions, Sheets testified, the doctor and Edith spoke with appellant concerning the couple’s agreement, reached after they were married, to dispose of their property. To quote appellant: “The agreement was that the estate which he acquired while he and my mother were married, that was to go to my father’s family [at his death], and the estate he acquired after he married Edith, after his death it would go to Edith, and after her death it would go back to my father’s family.”

Appellant stated his belief that Edith was aware of what property the doctor acquired before and after their marriage since Edith “took care of the books” for the doctor. He was uncertain as to when, during their years together, the doctor and Edith first agreed upon the disposition of their property, nor was he aware of the circumstances surrounding the agreement, or whether Edith received money or other property as consideration for her consent to the arrangement.

While appellant testified that the funds in the two savings accounts came from his father, no evidence was presented tracing the funds from his father to the accounts. Sheets admitted that he did not know what property Edith owned before her marriage, what property she acquired independent of his father after the marriage, or what, if any, insurance benefits she received upon his death.

The deposition of Dr. Robert D. Brookes, a psychiatrist who treated Edith Sheets for a mental condition from October, 1966, until her death in 1975, was admitted in evidence. In Dr. Brookes’ opinion, Edith was capable of managing her financial affairs and was not prone to being easily influenced despite her mental problem, described as manic-depressive illness. On one occasion in 1969, Edith informed Dr. Brookes of plans to move to New Mexico with Dr. Sheets, and of the fact that they had made a settlement with Martin, Jr. by which the latter would receive the property he otherwise would acquire upon Edith’s death.

On another occasion in 1971, a year following her husband’s death, Edith explained to Dr. Brookes her decision to make a new will giving to Martin, Jr. the property she acquired from Dr. Sheets. At the time, Edith was experiencing depression and believed her relatives were seeking to take advantage of her.

The evidence shows that Dr. Sheets and Edith Sheets executed several documents involving disposition of their property. On October 19, 1969, Dr. and Mrs. Sheets executed a written trust instrument conveying to Martin Sheets, Jr. and his wife a one-half interest in designated real property, and conveying the remaining one-half interest to Martin Sheets, Jr. as trustee for the benefit of Lowell Frei and Doris McMena-my. According to Martin Sheets, Jr., this property was acquired by Dr. Sheets prior to his marriage to Edith. Approximately one month later, on November 18, 1969, Edith Sheets executed her last will and testament by which the bulk of her estate would pass to certain relatives on her side of the family, including her nieces, Jo Ann Griffin and Carolyn Kittleson. Subsequently, on March 5, 1970, Dr. Sheets executed his last will and testament by which he devised the bulk of his estate to his wife, Edith Sheets. Article IV of the will states: “Whereas I have previously hereto made provision for Martin Sheets, Jr., Lowell Lee Frei and Doris McMenamy by means of certain deeds delivered and duly recorded in the City and County of St. Louis, I intentionally make no further provision herein for any of said persons.”

Sometime prior to 1969 Dr. Sheets received approximately $30,000.00 from the sale of an apartment building in University City. $24,000.00 of this amount was distributed to Martin Sheets, Jr., Lowell Frei and Doris McMenamy. We note that in his testimony, appellant identified receipt of the proceeds of this sale and the trust instrument as evidence of partial performance of the alleged agreement between Dr. and Mrs. Sheets.

Within two months of Dr. Sheets’ death in September, 1970, appellant, a lawyer, prepared a new will for Mrs. Sheets. By the terms of her second will, Edith Sheets devised her property to appellant, Martin E. Sheets, Jr., Lowell Frei and Doris McMena-my. In addition, the following land transactions occurred subsequent to Dr. Sheets’ death. By general warranty deed dated October 31,1972, St. Mark United Presbyterian Church conveyed to Edith Sheets and Daniel M. Sheets, the son of appellant, as joint tenants with right of survivorship, certain property in Ballwin, Missouri. By general warranty deed dated June 16, 1971, Edith Sheets conveyed to herself, appellant, and his wife, Mary Ann, as joint tenants with right of survivorship, designated property on North wood and DeMun Avenues.

Based on the aforegoing evidence, appellant argues that creation of the separate joint accounts breached the oral agreement between Dr. and Mrs. Sheets and that the funds therefore should be impressed with a constructive trust enforceable against respondents and for the benefit of appellant and his niece and nephew. The trial court rejected appellant’s view and held that title to the savings account was vested in Carolyn Kittleson, subject to a $2,828.02 lien in favor of the administrator pendente lite, and that title to the certificate of deposit was vested in Jo Ann Griffin, subject to a $2,827.97 lien in favor of the administrator pendente lite.

The law governing creation and effect of joint tenancy accounts such as these is specific and unqualified. Section 369.174(1), RSMo.1971 Supp., provides:

“When a savings account is opened or maintained in an association in the names of two or more persons, whether minor or adults, as joint tenants or in form to be paid to any of them or the survivors of them and whether or not the names are stated in the conjunctive or the disjunctive or otherwise, the savings account and all additions thereto shall be the property of such persons as joint tenants. * * * The opening or maintenance of the account in such form, in the absence of fraud or undue influence, shall be conclusive evidence in any action or proceeding to which either the association or any survivor is a party of the intention of all the parties to the account to vest title to the account and the additions and earnings thereto in the survivor.”

If in this case joint tenancies were created in compliance with the statute, in the absence of fraud or undue influence, respondents Kittleson and Griffin, as the survivors, became the owners of the accounts. See Matter of Estate of Parker, 536 S.W.2d 25 (Mo. banc 1976); In re Estate of La-Garce, 487 S.W.2d 493 (Mo. banc 1972).

There is no question but that the accounts complied with the statutory form since both signature cards displayed the words “as joint tenants with right of sur-vivorship and not as tenants in common.” Furthermore, appellant Sheets admitted in his pleadings that the joint accounts were created in the names of Edith Sheets and respondents Griffin and Kittleson. This constituted a judicial admission and obviated any requirement of proof of authenticity of the signatures appearing on the signature cards creating the accounts. Wehrli v. Wabash Railroad Co., 315 S.W.2d 765, 773 — 4 (Mo.1958).

Appellant contends, however, that the admission is not conclusive in the light of testimony that there were differences in the signatures appearing on two of the cards and the testimony of one witness that, in his opinion, the same person did not sign the name “Edith Sheets” on the cards. However, apart from the judicial admission, there was considerable evidence upon which the trial court could base a determination that both signature cards were signed by Edith Sheets. We reject appellant’s contention on this point.

Because the evidence of compliance with § 369.174 is clear, the joint accounts are to be given their proper effect under the statute, and title to the accounts should be declared in respondents unless appellant proves facts constituting fraud within the purview of § 369.174, and sufficient to give rise to a constructive trust. We therefore turn to appellant’s principal contention that the trial court erred in failing to find a constructive trust with respect to the funds deposited in the joint accounts.

“[A] constructive trust is the method or formula used by a court of equity as a means of effecting restitution or of rectifying a situation where, as a result of the violation of confidence or faith reposed in another, or fraudulent act or conduct of such other, the [party], who seeks the aid of equity, has been wrongfully deprived of, or has lost, some title, * * * in the property which, otherwise and but for such fraudulent or wrongful act or conduct, he would have had.” Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8, 15 (1938).

Availability of the remedy of constructive trust derives from proof of fraud, whether it be actual or constructive. Appellant neither alleged nor proved actual fraud. In the absence of actual fraud, Missouri courts will find constructive fraud and impress a constructive trust under circumstances resembling those allegedly present in this case. Neither an agreement to transfer to a third person nor the violation of said agreement, standing alone, gives rise to a constructive trust. Etheridge v. Hammer, 450 S.W.2d 207, 210 (Mo.1970). When one person transfers property to a second person who stands in a confidential relationship with the transferor, relying upon the transferee’s oral agreement to transfer to a third person, and the transferee subsequently transfers to a fourth person and thereby fails to perform in accordance with the agreement, such failure may constitute constructive fraud, in which case the fourth person may be said to hold the property, as a “trustee ex maleficio”, upon constructive trust for the third person. Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688, 691 (1944); Swon v. Huddleston, 282 S.W.2d 18, 25-26 (Mo.1955); Restatement, Restitution, § 183, pp. 737-38, § 186, p. 757; Coffey v. Coffey, 485 S.W.2d 167, 174 (Mo. App.1972); Mahler v. Tieman, 550 S.W.2d 623 (Mo.App.1977). A constructive trust will be impressed whether the property remains in specie or has been converted to another form, if it can be traced, and if in the hands of a third party, unless it passes to a bona fide purchaser for value and without notice. 89 C.J.S. Trusts § 146, pp. 1033-34.

The definition of confidential relationship includes not only those relationships technically fiduciary — such as attorney and client, principal and agent — but extends to other instances wherein special confidence exists. Service Life Insurance Co. of Fort Worth v. Davis, 466 S.W.2d 190, 196 (Mo.App.1971). It has been said that no more confidential relationship is known to the law than that of husband and wife. Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 232 (1947).

In seeking the creation of a constructive trust, appellant carries a great burden. An extraordinary degree of proof is required; the proof must be so clear, cogent and convincing as to exclude all reasonable doubt from the mind of the chancellor. Service Life Insurance Co. of Fort Worth v. Davis, supra at 197; cf. Skidmore v. Back, 512 S.W.2d 223, 230 (Mo. App.1974). In this case, appellant’s proof must consist of clear, cogent and convincing evidence: 1) of a confidential relationship between Dr. Sheets and Edith, a fact which may be inferred from the marriage relationship itself; 2) of an agreement between Dr. Sheets and Edith that property Dr. Sheets obtained during their marriage would be transferred to his family upon her death, and his reliance thereon; 3) of a breach of that agreement by Edith’s establishing the joint accounts; and 4) tracing property of Dr. Sheets to the funds in the joint accounts.

Evidence of an agreement was grounded almost entirely on the testimony of appellant. The testimony of Dr. Brookes, while making general reference to an agreement or arrangement involving Dr. Sheets’ property, was unspecific as to the alleged terms of the agreement. In this regard, the court, sitting as the trier of the facts, has leave to disbelieve all of the testimony of any witness, Southwestern Bell Tel. Co. v. Crown Insurance Co., 416 S.W.2d 705, 711 (Mo.App.1967); Edmonds v. Stratton, 457 S.W.2d 228, 234 (Mo.App.1970), or to believe part of a witness’ testimony and reject the rest, North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894 (Mo.App.1935). Moreover, appellant’s evidence can be un-contradicted and still not satisfy his burden of proof. Etheridge v. Hammer, supra. In addition to the above, we attach some significance to that part of Dr. Sheets’ will expressing his intention to make no further provision for appellant, Martin Sheets, Jr., Lowell Frei and Doris McMenamy beyond certain property dispositions which had occurred prior to the time of execution of the will, a statement which belies any further obligation of Edith to ensure a particular disposition of the doctor’s property upon her death.

Since appellant had the burden of producing clear, cogent and convincing evidence necessary for the establishment of a constructive trust, we agree with the trial court and hereby affirm its decision.

McMILLIAN, P. J., and STEWART, J., concur. .

      . Counsel for respondents objected to the testimony of Martin Sheets, Jr. regarding the alleged oral agreement between Dr. and Mrs. Sheets, contending it was hearsay. The trial court withheld its ruling on admissibility of this evidence until it rendered judgment in the case. Declaring the evidence inadmissible as hearsay, the court nevertheless considered the evidence in reaching the conclusion that there was insufficient proof of a valid post-nuptial agreement. While we agree the evidence constitutes hearsay, appellant’s testimony as to statements by Edith Sheets and Dr. Sheets in her presence, in which she acquiesced, concerning the alleged agreement, constitute admissions against interest by Edith and fall within a recognized exception to the hearsay rule. Hood v. Heppier, 503 S.W.2d 452 (Mo.App.1973); Carpenter v. Davis, 435 S.W.2d 382, 384 (Mo. banc 1968); 4 Wigmore, Evidence, §§ 1049, 1076, 1081 (Chadbourn rev. 1972).


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Connie BIVENS, Defendant-Appellant.
    No. 38527.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Nov. 14, 1977.

      Mary Elizabeth Dockery, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted by a jury of first degree robbery with a dangerous and deadly weapon. Section 560.135 RSMo Supp.1975. Under the Second Offender Act the trial court sentenced him to 35 years imprisonment. Defendant’s appeal charges that the pretrial identification procedure was so unduly suggestive as to deny him due process of law and that the subsequent in court identification of him was not shown to have an independent basis from the alleged maculated pretrial identification. Defendant also asserts that there was improper prosecutorial cross-examination of one of the defense witnesses. Defendant’s charges are devoid of merit; we affirm the conviction.

Defendant was positively identified as the perpetrator of a sawed-off shotgun robbery at a St. Louis office of the Missouri Department of Revenue. In the early afternoon of February 13,1976, two men armed with sawed-off shotguns entered the crowded Revenue office. The two men, one identified as the defendant, unobtrusively approached the bank of cashiers’ windows and in a well synchronized gambit absconded with nearly $6,000 of State funds within a time period lasting from one to four minutes. Due to the celerity with which the robbers performed their evil task, they were able to escape before the long queues of people realized that a crime had been committed. However, at least one customer and three Revenue employees clearly observed the defendant wield and thrust his lethal weapon as he forced cashiers to give money to him.

The three Revenue Department employees, who were the victims of defendant’s actions and who had undergone the frightening experience of having defendant’s ugly weapon thrust at them, had a clear and unobstructed view of defendant as he performed his unlawful activities. Two employees identified defendant at a police lineup two days after the robbery. The third employee identified defendant at a police lineup about one week after the robbery. Approximately four months after the robbery, the customer was asked by the Circuit Attorney’s office to view a photograph of a police lineup composed of five men. Upon seeing the photograph, the customer unhesitatingly and unequivocally identified the defendant as the robber he had observed in the Revenue office.

All four eyewitnesses positively identified the defendant at trial, even though at his counsel’s request defendant was seated among the spectators in the courtroom rather than at the counsel table.

Defendant’s defense was alibi that he was elsewhere at the time of the robbery — a defense which the jury refused to believe.

Defendant argues that the trial court erred in denying his motion to suppress identification testimony, because, under the circumstances, the pretrial identification procedures were so unduly suggestive as to deny him due process of law; that the trial court erred in permitting the subsequent in court identifications, because they were the product of the suggestive pretrial confrontations. Defendant asserts as the basis for his charge of undue suggestiveness the following:

“a. There was not a very good or long opportunity to view the robber;
b. The witnesses did not have their attention focused on the person of the robber at the time of the crime;
c. None of the witnesses gave a description of the robber to the police at the scene of the crime;
d. In at least one instance, several months passed between the time of the crime and the confrontation;
e. In all cases witnesses viewed the lineup believing that the line-up would contain the robber.”

It is obvious that none of these factors, except the last, is in any way related to the suggestiveness of the lineup procedure. Rather, factors (a) through (d) relate to the opportunity of the identifying witnesses to observe and remember the physical features of the robber — the certainty of the identification. Circumstances relating to the certainty of the identification affect only the credibility of the witnesses’ testimony and not the admissibility. State v. Bevineau, 552 S.W.2d 67 (Mo.App.1977); State v. Davis, 529 S.W.2d 10 (Mo.App. 1975). Such factors are, however, relevant in determining whether the witnesses’ in court identification has an independent basis once it is shown that the pretrial confrontation was unconstitutionally tainted. See Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972). State v. White, 549 S.W.2d 914 (Mo.App.1977); State v. Davis, 547 S.W.2d 482 (Mo.App. 1976). We must first, therefore, examine the pretrial confrontations to determine if they were so suggestive that an independent basis must be shown to support the in court identifications. State v. Barnes, 537 S.W.2d 576 (Mo.App.1976).

We have reviewed the testimony of the identifying witnesses regarding the circumstances surrounding the pretrial confrontations, as well as the color photograph of the questioned lineup, and we find that there was no undue suggestiveness.

In determining whether a pretrial confrontation between the accused and the identifying witnesses is so tainted by suggestive factors as to violate the accused’s right to due process of law, we view the totality of circumstances surrounding the confrontation. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Macon, 547 S.W.2d 507 (Mo.App.1977); State v. Murphy, 508 S.W.2d 269 (Mo.App.1974). Each case must be judged on its own facts to ascertain if the confrontation was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Neil v. Biggers, supra; State v. Parker, 458 S.W.2d 241 (Mo.1970); State v. Davis, supra.

Defendant makes no claim that the police, the prosecutor or anyone else tried to prompt, cajole or otherwise influence the identifying witnesses at the lineup or at the subsequent photographic viewing by the customer. It is clear from the testimony of the identifying witnesses regarding the circumstances of the pretrial confrontations that such a claim would be totally unavailing. It is evident from ocular examination of the color photograph of the lineup that each participant, though not identical to each other, is very similar in appearance. Each man is of medium build and dressed in casual clothing. Each has facial hair, and three have beards. All appear to be of approximately the same age. It is true that defendant is the shortest of the five participants, however,. the disparity in height is neither great nor obvious and affords no basis for relief for defendant. See State v. Proctor, 535 S.W.2d 141 (Mo.App. 1976); State v. Jones, 528 S.W.2d 14 (Mo. App.1975).

Mere showing of minor dissimilarities in physical appearance of lineup participants is insufficient to establish impermissible suggestiveness. State v. Gillum, 540 S.W.2d 167 (Mo.App.1976). Persons in a lineup will never be identical to one another. The law does not require exact conformity to ensure an untainted identification procedure. State v. Proctor, supra. The participants in a lineup need only be reasonably similar to one another so that no one individual clearly stands out from the rest. State v. Davis, supra; State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). “Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.” United States v. Lewis, 547 F.2d 1030, 1035 (8th Cir. 1976). And here, the individuals comprising the lineup tableau were rather uniform in appearance; the lineup was fair and comported with necessary standards, State y. Davis, supra.

Defendant’s claim that the lineup was tainted because “(e) [i]n all cases witnesses viewed the lineup believing that the lineup would contain the robber,” does not provide a basis for finding the lineup to be improper. It is only natural that victims of a crime asked to view a lineup would suspect it would contain the criminal. Such suspicion or expectation in the absence of other suggestive factors will not render the lineup constitutionally infirm. See State v. Armbruster, 541 S.W.2d 357 (Mo.App.1976).

Even if we were to assume there had been some undue suggestiveness in the pretrial confrontation, the in court identifications of the four eyewitnesses were shown to be firmly grounded on their observation of defendant at the time of the robbery. Where an in court identification is based on personal observation independent from any pretrial confrontation, such in court identification is proper and admissible. State v. Taylor, 456 S.W.2d 9 (Mo. 1970); State v. Johnson, 522 S.W.2d 106 (Mo.App.1975). Each identifying witness had an unobstructed view of the robber for periods ranging from fifteen seconds to over one minute, from a distance of only three feet or less. Under these circumstances there was ample time for the robber’s appearance to be impressed upon the witnesses’ memory. See e. g., United States v. Mooney, 417 F.2d 936 (8th Cir. 1969) (witness observed criminal for 15 seconds on 14 inch television screen); State v. Young, 534 S.W.2d 585 (Mo.App.1976) (witness observed criminal for 3 seconds at a distance of 30 feet); State v. Davis, 530 S.W.2d 709 (Mo.App.1975) (witness observed criminal for 10 seconds at a distance of 8 feet).

The fact that the victims of the crime were affected emotionally by the robber’s assault on their persons with a deadly weapon does not render their identification inadmissible so long as the emotional reaction was not of “such a degree as to impair (their) testimonial competency as a matter of law,” State v. Armbruster, supra at 361. The record gives no indication of such impairment, and, in fact, all testimony by the eyewitnesses is to the contrary. Both the pretrial and the in court identifications were properly admitted into evidence.

Defendant’s second allegation of error is that the trial court improperly denied his motion for a mistrial after allegedly improper and prejudicial cross-examination of one of his alibi witnesses, Rose Nance. On direct examination, the witness testified that defendant was at her apartment on morning and afternoon of the robbery. On cross-examination the Assistant Circuit Attorney asked if one week prior to the trial she had spoken to his investigator and told him she did not want to testify. Her response was:

“A. I did tell him that. I did not want to be involved, I did not want to testify.
“Q. Did you mention a specific reason?
“A. Yes, because I told him I don’t like to be involved in things like that, and when you testify sometimes it causes a lot of trouble, and I don’t want to be involved because I have to raise four children.
“Q. Did you tell him that you didn’t want to testify because you knew that Connie Bivens was good for this robbery?
“MR. COFMAN: [Defendant’s counsel] I will object to that.
“THE WITNESS: No, I didn’t.”

At this juncture, defendant’s counsel moved for a mistrial. His objection to the testimony was sustained, and the jury was instructed to disregard the question. The motion for a mistrial was denied. Immediately prior to the objection the Assistant Circuit Attorney in response to a similar objection explained out of the hearing of the jury that the witness “told my investigator she didn’t want to testify because everybody knew he was good for the robbery and she was going to try to avoid it and try to be gone so she wouldn’t have to testify.” The prosecutor explained that he was offering the testimony to show interest, bias and prejudice and that the testimony was elicited to test the witness’ Credibility-

Defendant asserts that the logical inference from the line of questioning was that “in light of the witness’ earlier statement that she did not want to testify because testifying might cause trouble for herself and her children, was that someone on appellant’s behalf had threatened the witness.” We believe that such an inference is remote and not the sort of direct, improper and prejudicial comment that would require declaration of a mistrial. See State v. Hicks, 535 S.W.2d 308 (Mo.App.1976).

Judgment affirmed.

KELLY, P. J., and WEIER, J., concur.