text:
    Nolan B. JACKSON, Appellant, v. STATE of Missouri, Respondent.
    No. 39194.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 19, 1978.

      Elbert Dorsey, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Presiding Judge.

Movant, in this Rule 27.26 appeal, bases his complaint on ineffective assistance of counsel leading to his plea of guilty on three charges of armed robbery. He alleges that his trial counsel conferred with him only twice before day of trial and had failed to interview State witnesses.

Effectiveness of counsel goes only to the issue of whether or not the plea was voluntarily and knowingly made. Blade v. State, 558 S.W.2d 352 (Mo.App.1977). In Keller v. State, 566 S.W.2d 260 (Mo.App.1978), the issue relating to this case was stated, thus:

. once a plea of guilty has been entered the question of effective assistance of counsel is immaterial except to the extent that counsel’s ineffectiveness affected the issue of voluntariness and understanding, (cites omitted) Volun-tariness is considered merely as a limit on the issue of counsel’s effectiveness, so that if a guilty plea is voluntary then counsel cannot be charged with not affording effective assistance.

Also, in Rogers v. State, 564 S.W.2d 576 (Mo.App.1978), it was said 1. c. 577:

Inasmuch as the judgment and sentence are based upon a plea of guilty, the issue of counsel’s adequacy is material only to the extent that it bears on the voluntariness and understanding of the plea.

In this case, we can reach no conclusion other than that movant’s plea of guilty was absolutely voluntary and made with total understanding of the consequences. The trial judge allowed movant a 40 page transcript trek to recite in meticulous detail his nefarious activities in committing the robberies. Movant even described the items he took, the clothes he was wearing and the victims he robbed. The record is without any doubt as to the fact that movant’s guilty plea was knowingly and voluntarily made, and under the circumstances here, no error occurred in denying movant’s Rule 27.26 motion. Blade v. State, supra.

Further, the record belies ineffective preparation or representation of movant by his trial counsel.

Judgment affirmed.

KELLY and REINHARD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    FIRST NATIONAL BANK AND TRUST COMPANY OF JOPLIN, Executor of the Estate of Gertrude M. Hemphill, Deceased, Plaintiff-Appellant, v. Jeannette Kay PITTOCK and John William Gardner, Executor of the Estate of Mary Loomis Gibson, Deceased, and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.
    Nos. 10980 and 11008.
    Missouri Court of Appeals, Springfield District, En Banc.
    Sept. 25, 1978.

      William H. Burden, Jr., Joplin, for plaintiff-appellant.
    Karl W. Blanchard, Joplin, for defendant-respondent John William Gardner.
    David W. Bernhardt, Springfield, for defendant-respondent State Farm Mut. Auto. Ins. Co.
   PER CURIAM:

These appeals stem from a suit for the alleged wrongful death of Gertrude M. Hemphill. Plaintiff’s decedent was a passenger in an auto being operated by Mary Loomis Gibson which collided with another auto driven by defendant Jeannette Kay Pittock. Defendant State Farm Mutual Automobile Insurance Company was the purported insurer of Mary Loomis Gibson, deceased. Plaintiff directed one count of the three count petition respectively to defendants Jeannette Kay Pittock; John William Gardner, executor of the estate of Mary Loomis Gibson, deceased; and State Farm Mutual Automobile Insurance Company.

Thereafter, on February 9, 1978, the circuit court entered summary judgment in favor of defendants Jeannette Kay Pittock and State Farm Mutual Automobile Insurance Company. On March 18, 1978, plaintiff filed a notice of appeal from said summary judgment and it was assigned our docket number 10980. On March 6, 1978, the circuit court entered summary judgment in favor of defendant John William Gardner, executor of the estate of Mary Loomis Gibson, deceased. Plaintiff filed a notice of appeal from said second summary judgment on April 14, 1978, and it was assigned our docket number 11008.

These appeals present the anomaly of having two judgments, albeit interlocutory in nature, entered in the same action. Ordinarily, only one final judgment may be entered in an action. 1 Freeman on Judgments, § 101 (5th ed. 1925). In Missouri, the right to appeal is created and governed by statute. V.A.M.S. § 512.020. One of the statutory prerequisites to the right of review and this court’s power to review is that a judgment has been entered which possesses sufficient finality to dispose of all the parties and all issues framed by the pleadings. Further, this court must, sua sponte, examine the files and records of each case to assure that this court has jurisdiction to entertain the appeal. Wile v. Donovan, 514 S.W.2d 177, 178[2] (Mo.App. 1974).

One may argue that the composite effect of the two summary judgments is a judicial determination as to all the parties and issues. However, the Supreme Court of Missouri has ruled in a similar situation that such interlocutory pronouncements do not constitute a judgment from which an appeal may be taken. Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886 (Mo. banc 1977). There, the trial court entered summary judgment in favor of one defendant and subsequently sustained a motion to dismiss the remaining defendant. The court held that appellate courts should not be obliged to seine the transcript to piece together interlocutory judgments sufficient to dispose of the parties and issues. The court suggested that the last such order might incorporate the prior summary judgment by reference with the result that said order would be a final appealable judgment. Bolin v. Farmers Alliance Mut. Ins. Co., supra, at 891[4-6]. We deem the situation in Bolin sufficiently similar to control the case at bar.

The instant appeals must be and hereby are, dismissed.

All concur.

BILLINGS, C. J., did not participate.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Dean BLEVINS, Defendant-Appellant.
    No. 10580.
    Missouri Court of Appeals, Springfield District, Division Two.
    Oct. 2, 1978.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Jerry L. Reynolds, Bonacker & Reynolds, Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant was convicted of stealing a tape player and tapes and sentenced as a habitual criminal to a three-year prison term. In this appeal he contends the trial court erred in not excluding certain evidence because he was induced to produce it by an implied promise he would not be prosecuted, his arrest was illegal, and he was not given the Miranda warnings. We affirm.

The tape player and tapes were stolen from an automobile owned by Forest Finders. Defendant and Dean Edwards had been at Finders’ house in Springfield, Missouri, and shortly after they left, Finders discovered the articles missing from his car. He reported the theft and events of the evening to police. Defendant was arrested and questioned by an officer the next day. He denied any knowledge of the theft but indicated he knew where the stolen property was located and might be able to recover the articles. The questioning detective told defendant that Finders was only concerned about getting the player and tapes back and was not interested in pressing charges. Defendant was released from custody.

Several days later defendant told Finders that a person at Brighton, Missouri, had purchased the tape player and tapes. Finders located this individual and learned this person, Mr. Pierce, had purchased the tape player and tapes. Finders reported this information to Springfield police. An officer went to Brighton and recovered the stolen property from Mr. Pierce who advised him he had purchased the items from defendant. Defendant was arrested and charged.

Prior to trial defendant filed a motion to suppress any oral statements he made to the police, the tape player and tapes, and the identity of Mr. Pierce. He claimed these matters were the product of his arrest without a warrant and without probable cause, his initial questioning was conducted without his having been given the Miranda warnings, and the officer’s implied promise that no charges would be filed if the stolen property was returned to its owner. An evidentiary hearing was conducted. The questioning officer could not recall whether defendant was read the Miranda warnings before he was asked about the theft. The trial court sustained defendant’s motion as to his statements but overruled the remainder of his motion.

At trial Finders identified the tape player and tapes. They were received in evidence after defendant’s objection as to their identification was overruled. Finders also stated that after the tape player and tapes had been returned to him the defendant told him he was sorry he had taken them. There was no objection to Finders’ testimony. No objection was made to Mr. Pierce testifying and he identified defendant as the person who sold him the tape player and tapes.

Defendant urges that the physical evidence, defendant’s inculpatory statement to Finders, and the testimony of Mr. Pierce [and Mrs. Pierce] were unconstitutionally tainted by reason of the detective's implied promise no prosecution would result if the stolen property was returned to Finders.

We need not determine the validity of defendant’s contentions because the alleged errors of which he complains have not been preserved for appellate review. “Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions.” State v. Holt, 415 S.W.2d 761 (Mo.1967). He must also keep the question alive by timely objection and by preservation of the issue in a motion for new trial. State v. Yowell, 513 S.W.2d 397 (Mo.banc 1974). As in Yowell, defendant raised the unconstitutional taint issue in his motion to suppress and motion for new trial but failed to object to those matters at his trial. The reasons for requiring such objection at trial are fully set out in State v. Bryson, 506 S.W.2d 358 (Mo.1974), and supplemented in State v. Yowell, supra.

Defendant suggests we undertake review under Rule 27.20(c), V.A.M.R., the plain error doctrine. We decline to do so because the evidence is overwhelming as to defendant’s guilt and we do not find “manifest injustice” resulting from the admission of the evidence.

The judgment is affirmed.

HOGAN, J., and RAGLAND, CONLEY and YEAMAN, Special Judges, concur.

      . At trial the officer stated he had in fact read the Miranda warnings to defendant; that he had found the “rights waiver” read to and signed by defendant.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald Dean BARKER, Defendant-Appellant.
    No. 10678.
    Missouri Court of Appeals, Springfield District, Division Two.
    Oct. 2, 1978.

      John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Richard D. Bender, Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Ronald Dean Barker was convicted of burglary and stealing and in this appeal questions the sufficiency of the evidence to support the convictions and avers the failure of the state to timely comply with discovery rules tainted his trial. We affirm.

The B. F. Goodrich tire store in Springfield, Missouri, was burglarized at night and 38 new tires stolen. The break-in and theft were discovered by employees the morning of January 21, 1977. Tracks from a vehicle equipped with four mud and snow tires were observed near the freight door of the tire warehouse.

Defendant and Donnie Vinyard went to Richard Trotter’s house in Springfield about noon January 22. They wanted Trotter’s help in disposing of tires they and Frostie Duncan had stolen from B. F. Goodrich. Trotter accompanied the two men to Lebanon and found a prospective buyer for some of the tires. When the trio returned to Springfield, Trotter contacted police officers who advised him to stall the moving of the tires. The next morning, January 23, defendant and Vinyard came by Trotter’s house to discuss transporting the tires to Lebanon. Before meeting defendant and Vinyard at the latter’s mother’s house, Trotter notified police. The tires were in a garage and defendant, Vinyard and Trotter loaded 13 of them into a pickup truck which was equipped with four mud and snow tires. Officers stopped the truck as it was en route to Lebanon and arrested Vinyard, the driver, and Barker.

The evidence was sufficient. Possession of recently stolen goods will support an inference of guilt and this may be a joint possession of a defendant and another. State v. Webb, 432 S.W.2d 218 (Mo.1968). Additionally, the conversations with Trotter provide independent evidence of defendant’s participation in the crimes. If defendant made the statements that “they” had stolen the tires this would constitute an admission of criminal participation by the defendant. If we assume that Vinyard made the statements, then defendant by his silence under the circumstances adopted and assented to Vinyard’s statement and this would constitute an implied admission against the defendant. State v. Thomas, 440 S.W.2d 467 (Mo.1969). Defendant and Vinyard were together when they went to Trotter’s house on both occasions and both accompanied him to Lebanon to find a buyer for the purloined tires. Defendant’s admissions, actual or implied, coupled with his participation in finding a buyer for the tires, loading the tires into the truck, and assisting in transporting the stolen merchandise, along with joint possession at time of arrest, demonstrates sufficient evidence to support the jury’s verdicts.

Defendant’s complaint that the trial court erred in permitting the state to endorse three witnesses the morning of the trial is without merit. True, defendant had filed a request for disclosure of witnesses to be used by the state at trial pursuant to Rule 25.32, V.A.M.R. And, under Rule 25.-37, V.A.M.R., the state had a continuing duty to disclose the names of witnesses it intended to call as witnesses. But this does not mean, as defendant suggests, that he was prejudiced by the court’s permitting the late endorsement of the three witnesses.

When defendant objected to the endorsement of the three witnesses, the trial judge leaned over backwards to accommodate the defendant. He granted the defendant’s counsel time to talk to each of the witnesses and repeatedly offered defendant a continuance. The defendant rejected the offers of a continuance and objected to the state’s request for a continuance for the purpose of providing defendant with ample time in which to interview the three witnesses.

Defendant has not been able to demonstrate any prejudice by the late endorsement of the witnesses. He made no request for continuance and in fact rejected offers of a continuance. He was granted ample time to interview the witnesses and did interview them. Moreover, Rule 24.17, V.A.M.R., specifically authorizes the endorsement of names of other witnesses at any time upon order of court. Consequently, the trial court is vested with broad discretion in permitting the endorsement of additional witnesses. State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969). The trial judge exercised his discretion in the instant case and we find no abuse of that discretion. State v. Webb, supra at 221.

Defendant’s final assignment is an attack on permitting Trotter to testify because of the state’s failure to “timely and substantially comply” with the rules of discovery concerning Trotter’s record of convictions.

First of all, defendant made no objections when Trotter was called as a witness. A point in a motion for new trial and appellate brief must be based on objections made and reasons assigned at trial and cannot be raised for the first time in the after trial motion or brief. State v. Brookshire, 353 S.W.2d 681 (Mo.1962), cert. denied, 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119 (1962).

Secondly, a list of Trotter’s convictions was given to defense counsel at the trial by the prosecution and on direct examination he was examined at length regarding his prior criminal convictions. The point is denied.

The judgment is affirmed.

HOGAN, J., and RAGLAND, CONLEY and YEAMAN, Special Judges, concur.

      . Trotter, later in the day, met with officers and talked to them further. The next day Vinyard and Duncan were shot to death by Trotter when they came to his house. The transcript indicates they knew Trotter had “snitched” on them. Defendant was in jail at the time. Trotter was not charged by state authorities for the killings but was prosecuted by federal officials for illegal purchase of a firearm.

      . One of the three was an employee of the tire store and his testimony was cumulative of testimony of two other employees concerning the break-in and theft of the tires. The other two witnesses were two police officers. One saw the truck at Vinyard’s mother’s house shortly before it departed for Lebanon. The other officer went to the scene of the arrest and took photographs of the truck and contents and assisted in unloading the tires when the truck was returned to Springfield.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. James DODSON, Appellant.
    No. KCD 29048.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Charles A. Gallipeau, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

James Dodson was convicted of distributing a controlled substance, § 195.020, RSMo 1975 Supp. The jury was unable to agree on punishment and the court assessed a term of ten years confinement.

On this appeal Dodson claims the court erred in (1) allowing the endorsement of a witness fifteen minutes before trial, (2) allowing the State to substitute an information for an indictment, and (3) allowing the State to display various bottles of pills to the jury. Affirmed.

Dodson does not question the sufficiency of the evidence to sustain his conviction. The jury could reasonably have found that Dodson delivered to an undercover police officer 1,970 pills containing LSD. Dodson was charged first by information but thereafter a grand jury indictment was returned charging him with transferring a quantity of LSD, a controlled substance. On the date the trial began the State apparently discovered the word “transfer” does not appear in § 195.020. The State requested leave, which was granted by the court, to substitute an information for the indictment which charged that Dodson did distribute a controlled substance. The State was also granted leave to endorse the name of Gary Bafus on the information as a witness.

Dodson’s first point complains of the action of the court in allowing the State to endorse the name of Gary Bafus as a witness on the information as the trial was beginning. The information contained a-notation of “Chemist — Regional Lab” as a witness. Bafus was a chemist from the Regional Lab. Dodson contends he was surprised and the court erred in allowing the State to endorse the name of this witness and thereafter refusing to grant a continuance to allow Dodson’s counsel time to prepare for cross examination. In State v. Strawther, 476 S.W.2d 576, 579[3, 4] (Mo.1972) it is stated the late endorsement of a witness is a matter of judicial discretion. The court stated a “conviction will not be reversed because the name of a witness was endorsed on the information during trial unless it is shown that defendant was thereby prejudiced.”

Strawther also mentions the factors to be taken into consideration when a claim of error is predicated on the late endorsement of a witness. The factors mentioned here which are applicable to this case involve whether in fact the defendant was surprised and suffered some disadvantage and whether the type of testimony given might readily have been contemplated. Dodson knew the charge involved drugs and knew the indictment contained a notation that a chemist from the Regional Lab would be a witness. In a case such as this Dodson knew the State would have to prove the tablets delivered to the undercover officer contained a controlled substance. Dodson knew the only way to do this would be by chemical analysis. It is difficult to imagine how Dodson could have been surprised by the appearance of a chemist to testify.

Dodson does not demonstrate in what way his preparation for cross examination was impaired. Rather, he simply draws the conclusion that he was surprised and his preparation was impaired. Dodson’s counsel, who was different from counsel on appeal, did in fact cross examine Bafus rather extensively. Under these circumstances it cannot be said the court abused its discretion in allowing the State to endorse the name of the chemist and in failing to grant a continuance.

Dodson next contends the court erred in allowing the State to substitute an information for the indictment. Dodson primarily contends the indictment in fact did not charge any crime because it used the term “transfer” when this term is not found in § 195.020, and further, that the substitution allowed the State not only to charge a new and different crime but in fact to charge the commission of a crime for the first time. The rules under which an amendment or substitution of an indictment or information is permitted are fully set out in State v. Wilson, 544 S.W.2d 859, 862[1-3] (Mo.App.1976), where this court held under Rule 24.02 that no different offense is charged and if substantial rights of the defendant are not prejudiced, the amendment or substitution may be made. This court stated the ultimate question is one of prejudice. This court further said the test of prejudice “is whether a defense under the charge as originally made would be equally available after the amendment and whether defendant’s evidence would be equally applicable after, as well as before, the amendment.”

Section 195.020 makes it unlawful for any person to distribute a controlled substance except as authorized in Chapter 195. Section 195.010(12), RSMo 1975 Supp. defines “distribute” as to deliver. Section 195.-010(8) defines “deliver” as the actual, constructive or attempted transfer from one person to another of a controlled substance. By these definitions “distribute” means to deliver and “deliver” means to transfer. Thus, the indictment did in fact charge Dodson with a violation of § 195.020 when it charged that he transferred a controlled substance. This is the view adopted in State v. Gordon, 536 S.W.2d 811, 817 (Mo.App.1976) when the court held a charge of distribution of a controlled substance would authorize a conviction upon the transfer from one person to another of a forbidden narcotic. No abuse of discretion or prejudice has been shown in allowing the State .to substitute an information for an indictment.

Dodson finally contends the court allowed the State to present evidence of other crimes when it permitted the State to display various bottles of pills not germane to the case and which were never admitted in evidence. This claim of error arises from the following events: Chemist Bafus was handed a large envelope which he identified as having been given to him by the Kansas City Police Department. He stated it was sealed when delivered to him, that he opened the envelope and sealed it after his tests were completed. At the request of the prosecutor he opened the envelope and removed seven items, consisting of containers of various pills, capsules, liquids and seeds. The State requested all seven items to be marked as exhibits. At this point counsel objected to the introduction in evidence of any of the items except that containing the 1,970 tablets Dodson was charged with delivering to the police officer. The court sustained this objection and there is nothing in the record to indicate the items excluded from evidence were again shown to the jury nor was there any mention of these items made by the prosecutor.

Dodson contends the court committed error in this incident because the other items were seen by the jury and that somehow this was evidence of the commission of other crimes. In support of this argument, Dodson makes the contradictory statement that no attempt was ever made to show the other items contained any controlled substances.

The answer to Dodson’s contention is found in the fact the court granted all of the relief requested. No objection was made until the items had been taken from the envelope and the reporter had been requested to mark them. As soon as the objection was made, the court sustained it and the items were not received in evidence. The only relief requested was that the items not be received in evidence and such relief was granted. Therefore, Dodson is in no position to complain. State v. Lafferty, 415 S.W.2d 792, 795[4] (Mo.1967).

The judgment is affirmed.

All concur.


text:
    REGIONAL INVESTMENT COMPANY, Respondent, v. John K. WILLIS et al., Appellants.
    No. KCD 29135.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Cenobio Lozano, Jr., Harrisonville, for appellants.
    George T. O’Laughlin, Mitchell, O’Laugh-lin, Meier, Kristi & Morrison, P. C., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

John Willis and his wife, Pansy, appeal from a summary judgment granted in favor of Regional Investment Company for a deficiency following a trustee’s sale of real estate. Willis contends an affidavit filed in response to the motion for summary judgment revealed the existence of a material issue of fact which precluded summary judgment. Reversed in part and remanded.

In March, 1974, Willis and his wife obtained a loan from Regional in the amount of $27,750 for which they executed a promissory note secured by a deed of trust on a lot in Cass County referred to as Lot 45. In December, 1974, Willis and his wife and John Willis Construction Company obtained a second loan from Regional, also in the amount of $27,750, for which they executed a promissory note secured by a deed of trust on a lot referred to as Lot 44.

In January, 1976, Regional filed suit against the Willises and Willis Construction Company. Count I alleged that Lot 45 was sold at a trustee’s sale, resulting in $21,-083.94 being credited toward the note and leaving a balance due of $6,666.06 plus attorney fees and costs.

Count II alleged that Lot 44 was sold at a trustee’s sale, resulting in $20,788.99 being credited on the note and leaving a balance of $6,691.01 plus attorney fees and costs. Regional was the purchaser at both trustee’s sales.

Willis filed an answer generally denying the petition and asserting a counterclaim. The counterclaim sought actual and punitive damages, alleging that prior to the trustee’s sale of Lot 45 Regional entered into a private contract of sale for an amount greater than the balance due on the note with completion of the sale and conveyance of the lot pursuant to the contract following the foreclosure sale.

Regional filed a motion for summary judgment on Counts I and II, alleging the Willises admitted execution of the promissory notes, the defaults, the trustee’s sales, the resulting deficiencies and the absence of any genuine issue as to any material fact.

In response to the motion for summary judgment Willis filed an affidavit stating that prior to the trustee’s sale of Lot 45 Regional had entered into a contract agreeing to sell Lot 45 for $29,000, subject to Regional obtaining title at the foreclosure sale. The affidavit stated that Regional, after entering into this contract and accepting payment of earnest money, made the successful bid at the trustee’s sale of $21,-083.94, a bid which was substantially less than the amount due on the note, for the express purpose of securing a default judgment. The affidavit further stated that Regional conveyed the property after the foreclosure sale to the buyers named in the contract for $29,000. The affidavit concluded that Willis was unable to pay the note secured by Lot 44 because of the trustee’s sale of Lot 45 and the inability to secure financing.

The court entered summary judgment for Regional on Counts I and II in the amount claimed but severed such judgment for purposes of appeal, thus leaving the Willis counterclaim pending.

On this appeal Willis urges the facts stated in his affidavit show the existence of an issue of material fact which precluded summary judgment. Regional contends there was no issue as to any material fact because Willis admitted, by his answer and by failure to respond to requests for admissions, the execution and non-payment of the promissory notes and the sale of the secured property under the deed of trust. Regional argues that if Willis has any claim against Regional, as stated in his counterclaim, such claim is still pending and may be pursued.

Rule 74.04(c) provides for summary judgment “ ‘if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ Schoen v. Kerner, 544 S.W.2d 43 (Mo.App.1977). A material issue of fact exists whenever there is the slightest doubt as to the facts. Seliga Shoe Stores v. City of Maplewood, 558 S.W.2d 328, 331[1-3] (Mo.App.1977).

Willis did not deny the execution and non-payment of the promissory notes, nor did he deny the fact the trustee’s sale was conducted. The facts stated in Willis’s affidavit do raise a question of fact as to-the existence of a deficiency because of the inadequacy of Regional’s bid and the fairness of the sale in light of the prior contract for an amount greater than the debt.

Generally, the price for which property is sold at a trustee’s sale is the basis for measuring a deficiency, provided the sale was fairly conducted. Drannek Realty Company v. Nathan Frank, Inc., 346 Mo. 187, 139 S.W.2d 926, 928[1, 2] (1940).

Counsel has not cited any case in which the right to a deficiency judgment was questioned on facts similar to those stated in Willis’s affidavit. However, in Union Joint Stock Land Bank v. Knox County, 20 Tenn.App. 273, 97 S.W.2d 842 (1936) the court discussed a similar situation. In that case the Bank had allowed Knox County to pay the owners of land covered by a deed of trust held by the Bank for a right of way to the County. After the County had paid the owners, and after the owners had paid an installment with part of the proceeds, the note became delinquent. The Bank foreclosed on the deed of trust and was the successful bidder at the sale. The court found the evidence of the Bank’s actions reflected that the Bank foreclosed with a secret intention of bidding a sum which would leave a deficiency for which the Bank would hold the County. After the foreclosure sale the Bank sold the property for an amount sufficient to cover the balance due on the note. The court held that under the circumstances, the bid of the Bank at the foreclosure sale was not made in good faith and since the sale was not conducted in strict fairness, the price for which the property was sold at the sale was not a conclusive measure by which to establish a deficiency on the note. The court concluded the Bank was not entitled to recover the deficiency when it was guilty of unfairness in foreclosing the property and in buying it at an inadequate price and thereafter selling it for a sum sufficient to cover the deficiency with the intention of creating a profit at the expense of the County. The facts stated in Willis’s affidavit, if believed by the trier of fact, would bring this case squarely within the observations made in Union Bank.

If the trier of fact found that Regional bid the sum of $21,083.94 on Lot 45 after binding itself to a contract by which it would receive $29,000 immediately after the foreclosure sale, and if the bid was made for the purpose of creating a deficiency, then a sufficient factual basis could be established on which to deny Regional recovery for such deficiency. The basis of such a denial would be the legal conclusion that the sale was rendered fundamentally unfair to Willis and as such, the trustee’s sale price could not be the basis by which to measure a deficiency.

The facts stated in Willis’s affidavit show there is a doubt as to the fairness of the trustee’s sale because of the conduct of Regional. A trial will be required to determine the factual dispute surrounding the conduct of Regional and its bid before the true purchase price can be determined by which deficiency can be. measured. The entry of summary judgment on Count I was barred by the facts stated in Willis’s affidavit.

As to Count II and the note secured by the deed of trust on Lot 44, Willis has not stated any facts which show a material issue of fact. He has stated only conclusions which do not suffice to defeat summary judgment. Waltz v. Cameron Mutual Insurance Co., 526 S.W.2d 340, 343[2] (Mo.App.1975).

The summary judgment as to Count I is reversed and the cause is remanded for further proceedings. The summary judgment as to Count II is affirmed. The costs are divided equally between the parties.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jeffery Craig CHARLES, Appellant.
    No. KCD 29276.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Lee M. Nation, Kevin R. Locke, Asst. Public Defenders for the 16th Judicial Circuit, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Crim. Div., Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Defendant was charged by a two count information with murder in the second degree (Sec. 559.020, RSMo 1969) and robbery in the first degree by means of a dangerous and deadly weapon (Sec. 560.120, RSMo 1969 and Sec. 560.135, RSMo Supp.1975). A jury found him guilty of both offenses and his punishment as to each was fixed at life imprisonment. The trial court ordered the life sentences to run concurrently.

Two points of error are presented by defendant on appeal: (1) Error on the part of the trial court in overruling defendant’s motion to quash the jury panel because the automatic exemption given women from jury service resulted in a panel which was not representative of a cross-section of society, all in violation of the Sixth Amendment to the Constitution of the United States; and (2) error on the part of the trial court in admitting into evidence, at the state’s behest, a .38 caliber revolver and a .38 caliber cartridge which were wholly unrelated to any of the offenses for which defendant was standing trial, and in permitting the state to make repeated references thereto during closing argument.

As none of the points relied upon question the sufficiency of the evidence, the facts may be rather tersely summarized. During the twilight hours of February 28, 1976, two acquaintances of defendant were in the immediate vicinity of the checkout counter of a Seven-Eleven Store in Kansas City, Missouri. They testified that they observed defendant, armed with a handgun, approach the checkout counter and shoot the store employee who was in charge of the cash register. As the two acquaintances fled the store in fright, they observed defendant jumping over the counter where the cash register was located. One of the two persons acquainted with defendant testified that defendant later admitted to her that he took approximately $57.00 from the cash register. The store employee who had been in charge of the cash register died of a gunshot wound in the stomach. Defendant took the stand in his own behalf and vehemently denied that he committed the offenses in question. He testified that he was elsewhere at the crucial time in question and produced a number of witnesses who confirmed his alibi.

Defendant’s first point, questioning the gender of the jury panel, virtually lends itself to a summary disposition. State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), State v. Lee, 556 S.W.2d 25 (Mo. banc 1977), and State v. Davis, 556 S.W.2d 45 (Mo. banc 1977), heretofore concurrently decided by the Supreme Court of Missouri, ruled this very issue adversely to defendant. Defendant has not presented any statistical data which would suggest that the selection and composition of the jury panel in the instant case was substantially different from the selection and composition of those dealt with in Duren, Lee and Davis.

Defendant’s second and final point, admission of and reference to prejudicial evidence, is not so easily resolved. In view of its procedural background, serious questions are raised concerning the inviolacy of jury verdicts in criminal cases vis-a-vis adherence to the rule of law in the administration of criminal justice. As originally noted, defendant took the stand in his own behalf. Before doing so he presented a number of alibi witnesses, three of whom, during cross-examination by the prosecutor, were asked if they “had ever known” defendant “to carry a gun”. When defendant took the stand, like any other witness, he put his credibility in issue. On cross-examination the prosecutor asked him if he had previously been convicted of burglary, second degree, and defendant admitted that he had. Knowing that defendant had been arrested on December 12,1975, for carrying a concealed weapon, and with that thought obviously in mind, the prosecutor then asked defendant if he ever had “possession of a handgun”, which defendant denied. The prosecutor was acutely aware of the fact that the handgun which he was questioning defendant about was wholly unrelated to the offenses for which defendant was standing trial. In fact, the handgun which was the subject of the prosecutor’s cross-examination was in the “property room” of the Kansas City Police Department on February 28, 1976, the date of the offenses for which defendant was standing trial. Moreover, there is not one iota of evidence in the record that defendant was ever convicted of carrying a concealed weapon, although the subsequent course of the prosecutor’s cross-examination sought to erroneously imply otherwise. Defendant’s negative answer to the prosecutor’s inquiry as to whether he ever had “possession of a handgun” should have ended the matter as it is well established in this state that a cross-examiner is bound by a witness’ answers to questions involving collateral offenses bearing solely upon the witness’ credibility, and except for proof of criminal convictions as prescribed by Sec. 491.050, RSMo 1969, the cross-examiner is precluded from offering contradictory evidence. State v. Johnson, 486 S.W.2d 491, 496 (Mo.1972); State v. Lee, 486 S.W.2d 412, 414-15 (Mo.1972); State v. Cox, 263 S.W. 215, 219 (Mo.1924); and State v. Diamond, 532 S.W.2d 873, 875 (Mo.App.1976). Notwithstanding defendant’s negative answer and existence of the well established principle mentioned, the prosecutor vigorously pressed defendant for specific details concerning an event occurring on December 12, 1975, which led to defendant’s arrest for carrying a concealed weapon. Incongruous as it may sound, no objections were ever lodged by defense counsel to the highly improper line of questioning pursued by the prosecutor. Seizing upon this unexplainable inadvertence or tranquilization besetting defense counsel, the prosecutor pressed hard and long at the collateral and highly prejudicial issue which he had injected into the case, even to the extent of calling as the state’s only rebuttal witness a police officer who testified as to events leading up to and including defendant’s arrest on December 12, 1975, for carrying á concealed weapon. The police officer also testified that a .38 caliber cartridge was taken from defendant’s “right trouser pocket” at the time of his arrest on December 12, 1975. Throughout the prosecutor’s extended cross-examination of defendant concerning the handgun, defendant steadfastly denied any connection or involvement with it. At virtually the close of all the evidence, the state moved that the controversial handgun (a .38 caliber Smith and Wesson) and .38 caliber cartridge be admitted in evidence. Defense counsel’s previous state of lethargy surrounding these totally foreign and unrelated exhibits was finally shaken and an objection was interposed that said exhibits were “irrelevant and immaterial to the case at hand” and that they constituted “attempted impeachment and totally collateral matter.” The trial court overruled defense counsel’s objection to the exhibits and the same were admitted in evidence. Anomalously, the weapon which caused the death of the Seven-Eleven Store employee was never offered or introduced in evidence. The only inkling as to the trial judge’s rationale for admitting the handgun and cartridge which were wholly unrelated to the offenses for which defendant was being tried lies in the following statement which he concurrently made when he overruled defense counsel’s objection to them: “I think it should be noted that this has been opened up a good deal by the testimony on the part of defense witnesses as to whether this defendant ever carried a gun.” This statement can only have reference to three of defendant’s alibi witnesses who were asked on cross-examination if they “had ever known him [defendant] to carry a gun.” In each instance, the respective witnesses answered in the negative. Although defense counsel did not object to this line of questioning when pursued by the prosecutor during his cross-examination of defendant’s alibi witnesses, the prosecutor nevertheless elicited the negative answers and it is difficult to perceive how defendant can be said to have “opened” the matter up, as implied by the trial judge.

Immediately prior to the state’s closing argument defense counsel orally moved for “a protective order upon the State to enjoin them from using the evidence, the pistol or the bullet, which has been marked State’s Exhibits Twenty-four and Twenty-five for the reason that they are irrelevant and immaterial to any issue in this case, highly prejudicial, only related to a collateral matter; and therefore, should not be used as evidence in the argument of this case.” When asked what the state’s position was, the prosecutor replied that “I intend to refer to them for the same reason they were introduced into evidence, to impeach the credibility of the defendant and the defendant’s witnesses.” In overruling defense counsel’s motion for a “protective order”, the trial court stated, inter alia, as follows: “I think it is possible that they are considerably more than collateral matters at this point, having been injected into the case by the examination on the part of the defendant into these areas. However, I believe — counsel, I shall not make an order as requested — I think, however, counsel would be well advised, counsel for the State, to give serious consideration to minimizing what might be claimed to be any prejudicial effect. The Court has allowed them in evidence, and believes the ruling was correct, adheres to it, and will not direct counsel — however, there have been cases in which items have been in evidence that were somewhat borderline that their use in closing arguments and presentation throughout the trial to the jury caused complications. So I will leave it to the wide discretion, and wise discretion of the Prosecutor.” The prosecutor accepted this invitation to exercise his “wide discretion, and wise discretion” by referring to the controversial handgun, sometimes directly and sometimes by innuendo, on nine separate occasions over defense counsel’s objection during both phases of the state’s closing argument. The thrust of the prosecutor’s reference to the handgun is exemplified by two particular instances. After physically displaying the weapon to the jury, the prosecutor immediately argued to the jury as follows: “This gun which is in evidence is the one that this defendant said, ‘Yeah. That is my gun, but the cops planted it on me. I never saw it until they picked it out of the bushes.’ It is cops against robbers. If you believe the police did that — if you believe the police did that, let him go. Don’t shop in any Seven-Eleven Stores. I am telling you that the police did have an impact in this case. You have got to believe that they did plant that gun on him, if in fact Jeffery Charles is a believable witness; and if, in fact, the policeman is lying.” Shortly afterwards, the prosecutor argued as follows: “Can you believe Jeffery Charles and those guys when we have proved that he does carry a gun. When after we have proved that he carries a gun, he tries to say the police planted it on him. And when after he says they planted it on him, we proved he had a bullet to that very gun in his right front pocket? Can you believe that? This is not believable.” There is no escape from the conclusion that the state persistently attempted to convey to the jury that defendant, notwithstanding his denial and lack of a conviction by plea or trial, was guilty of carrying a concealed weapon. Doing so was wholly inconsistent with the strick admonishment voiced by the court in State v. Lee, 486 S.W.2d 412, 414 (Mo.1972), citing State v. Spray, 174 Mo. 569, 576, 74 S.W. 846, 848 (1903), that “[t]he state cannot prove any crime not alleged, either as foundation for a separate punishment or as aiding the proofs that . [defendant] is guilty of the crime charged, even though he has put his character in issue.”

The state attempts to vindicate admission of the objectionable exhibits into evidence, and the prosecutor’s rampant and unbridled reference to them during closing argument, on two grounds. The state appears to argue that it was justified in initially questioning defendant about having previously possessed a handgun (carrying a concealed weapon) under authority of a line of cases in this state holding that the credibility of a witness (including an accused who takes the stand in his own behalf) may be attacked not only by making inquiry as to previous criminal convictions but also by asking whether or not he committed or admits that he committed a specific crime. The following are illustrative of the line of cases just mentioned. State v. Foster, 349 S.W.2d 922, 925 (Mo.1961); State v. Summers, 506 S.W.2d 67, 73 (Mo.App.1974); and State v. Williams, 492 S.W.2d 1, 6 (Mo.App.1973). The state tangentially argues that its right to initially question defendant about having previously carried a concealed weapon, coupled with defendant’s denial that he had done so, opened the door for the extensive, in depth interrogation of defendant with respect thereto, the calling of the police officer who arrested defendant for carrying a concealed weapon as a rebuttal witness, and the admission of the handgun and cartridge as exhibits in the case. This highly convoluted argument does violence to the firmly established rule in this state that a cross-examiner is bound by a witness’ answers to questions involving collateral criminal offenses bearing solely upon the witness’s credibility and, except for the right to prove prior convictions as prescribed in Sec. 491.050, supra, the cross-examiner is precluded from offering contradictory evidence. State v. Johnson, supra; State v. Lee, supra; State v. Cox, supra; and State v. Diamond, supra.

Next, the state argues that the handgun and cartridge were properly admitted into evidence as exhibits, and that the prosecutor was free of any restraint or limitations regarding reference to them during closing argument, because defendant waived any right to presently object thereto by reason of his failure to object to the controversial subject matter to which they related when it was first opened up on cross-examination.

Disposition of defendant’s second and final point on the state’s theory of waiver would require this court to indirectly condone and stamp with approval a trial which in many respects was the very antithesis of a fair trial. Without being hyperbolic, this result was primarily brought about by the state’s unrestrained zeal to prosecute a heinous offense and an indifferent or tranquil attitude on the part of defense counsel which delayed any objection to certain highly prejudicial and otherwise inadmissible evidence until after the prosecutor relentlessly paraded it before the jury during cross-examination and on rebuttal. The effect of defense counsel’s delay in lodging an objection now becomes the focal point of this case. The Supreme Court of this state recognized in Smith v. Sovereign Camp of Woodmen of the World, 179 Mo. 119, 77 S.W. 862, 866 (1903), and held in State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130, 133-34 (1929), that the admission of improper testimony without objection did not render the subsequent admission of like testimony over objection proper, and cognately, that an objecting party was not precluded from objecting to subsequent testimony on the theory that he waived his right to do so by failing to object when objectionable testimony of like effect was first adduced. See also Carrel v. Wilkerson, 507 S.W.2d 82, 87 (Mo.App.1974), applying the same principle to improper argument of counsel. No reason comes to mind why this rule or principle should not apply with equal vigor in criminal cases, especially ones involving procedural and testimonial events comparable to those in the instant case. As a matter of fact if sound reasons exist for holding such a rule or principle applicable in civil cases, even more compelling reasons exist for holding it applicable in criminal cases where man’s most precious asset, liberty, is at stake. Lethal weapons completely unrelated to and unconnected with the criminal offense for which an accused is standing trial have a ring of prejudice seldom attached to other demonstrative evidence, and the appellate courts of this state have been quick to brand their admission into evidence, and any display of or reference to them during closing argument, as prejudicial error. State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Smith, 357 Mo. 467, 209 S.W.2d 138 (1948); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); and State v. Williams, 543 S.W.2d 563 (Mo.App.1976).

Arrest and guilt are not synonymous. Evidence that defendant was arrested for carrying a concealed weapon and admission of the lethal weapon he purportedly concealed did not prove his guilt or innocence of the murder or robbery charge for which he was standing trial, his strength or lack of character, or any propensity on his part for regard or disregard of the truth. To the contrary, they injected a totally false issue into the case which every natural instinct says was highly prejudicial to defendant’s basic and inalienable right, guilty or innocent, to the rudiments of a fair trial. Pragmatically viewed, defendant was subjected to a trial within a trial, one of which was unsupported by any formal charge and which, at best, was predicated on nothing more than a tactical advantage sought by the state. Defense counsel’s unexplained lapse in not objecting to highly prejudicial and legally inadmissible evidence of the same general tenor as the controversial exhibits was no antidote to the state’s inundation of the case with prejudice in almost unheard of proportions.

Although “harmless error” is frequently seized upon as a panacea for,the improper admission of evidence, the exhibits in question cannot be lightly brushed off on that basis. This court firmly subscribes to the dual proposition that error associated with the improper admission of evidence should never be declared harmless unless it can be said to be so without question, and that in order to declare so the record should demonstrate that the jury disregarded or was uninfluenced by the improper evidence. State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); State v. Wynne, supra; and State v. Garrett, 564 S.W.2d 347 (Mo.App.1978). After carefully reviewing the record in the instant case it cannot be said “without question” that the jury disregarded or was uninfluenced by the improperly admitted exhibits, thus rendering their admission nothing more than harmless error. Cases in this state involving improper admission or reference to lethal weapons wholly unrelated to an offense for which an accused is standing trial reveal a rather consistent pattern of reversal because of their propensity for prejudice, and they cautiously avoid sanctioning the admission of such lethal weapons on the theory of harmless error. State v. Holbert, supra; State v. Smith, supra; State v. Wynne, supra; and State v. Williams, supra. The controversial exhibits in the instant case tended to imply that defendant had ready access to handguns and was of a violent nature, and for those reasons his testimony and that of his corroborating witnesses with respect to his alibi defense was unworthy of belief. So construed, the improperly admitted exhibits impinged on defendant’s alibi defense and their admission appears to fall within the condemnatory bounds of a general principle espoused by the Texas courts that reversible error is committed by the admission of improper evidence which impinges on a defense interposed by an accused. Mitchell v. State, 116 Tex.Cr.R. 249, 32 S.W.2d 199 (1930); and McLendon v. State, 101 Tex.Cr.R. 663, 276 S.W. 431 (App.1925). State v. Richards, 334 Mo. 485, 67 S.W.2d 58 (1933), although failing in so many words to clearly delineate such as a recognized principle as the Texas courts have done, nevertheless appears to subscribe to and reach the same result.

The brutal, senseless murder that was inflicted upon the employee of the Seven-Eleven Store repels every decent instinct possessed by mankind. By reason of the plethora of substantial evidence introduced by the state in support of its burden of proving defendant guilty beyond a reasonable doubt of both charges, it is incomprehensible why the state seized upon and relentlessly paraded before the jury the highly prejudicial and inadmissible evidence in question. Defense counsel’s unexplained lethargy in lodging an objection is, at best, an incomplete answer. In view of the overwhelming abundance of legally admissible evidence to sustain the state’s burden of proof, coupled with the brutal and senseless nature of the homicide which was perpetrated, this court has had to steel itself in order to resist the common temptation of attempting to justify or excuse the error precipitated and repeatedly compounded by the state. To succumb to this temptation is an entirely different matter. To do so would put this court in the egregious position of assessing the credibility of witnesses it neither saw nor heard, and then saying to the jury that their assessment of defendant’s credibility, and that of his alibi witnesses, as a matter of law, was impervious, notwithstanding the prejudicial atmosphere in which their credibility had to be assessed. The scope and effect of such prejudice knows no accurate measure. For this reason efforts to attack the credibility of an accused by attempting to prove collateral criminal offenses never admitted or for which there was no conviction, and by the admission of lethal weapons totally foreign to the offense for which an accused is standing trial, have wisely been prohibited and branded as reversible error.

Courts are frequently tempted to suspend or abandon the rule of law, particularly so when an especially brutal and senseless offense is involved and evidence of guilt is overwhelming. Courts which yield to this temptation must do so with an awareness that they are substituting the rule of expediency frequently indulged in the streets for the rule of law which they have solemnly sworn to uphold, and they must be prepared to live with the fact that suspension or abandonment of the rule of law in one case establishes a precedent for doing so in subsequent cases. They must also face the reality that society as a whole is the ultimate loser when the rule of law gives way to the rule of expediency. On balance, a new trial is a small price to pay for preserving the integrity of a fair trial. There are times when cases must be retried in order to maintain the egalitarian purity of the rule of law. This is such a time.

Both judgments are reversed and both causes are remanded for a new trial.

All concur.

      . This statement attributed to defendant i; not borne out by the record in all respects.


author: DONALD L. MASON, Special Judge.

text:
    In re the ESTATE of Sam KING, Deceased. Paul M. KING, Administrator, Respondent-Appellant, v. Shirley and David SMITH, Appellants-Respondents.
    Nos. KCD 29305, 29315.
    Missouri Court of Appeals, Kansas City District.
    Oct. 2, 1978.

      Christian F. Stipp, David Thomas, Stipp & Thomas, Carrollton, for appellants-respondents.
    John Franken, Robert A. Bryant, Carroll-ton, for respondent-appellant.
    Before SHANGLER, P. J., and WAS-SERSTROM, J., and MASON, Special Judge.
   DONALD L. MASON, Special Judge.

From a judgment of the Circuit Court of Carroll County decreeing that Shirley Smith and David Smith were the surviving joint tenants of two certificates of deposit the Administrator of the Estate of Sam King, Deceased, appeals. Shirley Smith appeals from that portion of the judgment decreeing that she was entitled to only one-half of the balance due on a contract for the sale of real estate.

Under Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), our standard of review is to sustain the decree unless (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) it erroneously declares the law; or (4) it erroneously applies the law, MFA Mutual Insurance Company v. Thost, 561 S.W.2d 431 (Mo.App.1978).

On November 5, 1975, Letters of Administration were issued to Paul M. King by the Probate Court of Carroll County in the Estate of Sam King, Deceased. On January 21, 1976, Paul King filed his Affidavit to Discover Assets and propounded Interrogatories to Shirley Smith. In the Affidavit the Administrator claimed that Shirley Smith was withholding assets derived from a contract for the sale of real estate dated July 29, 1975, one-half of which properly belonged to the Estate inasmuch as Sam King had been one of the sellers of the real estate, Shirley Smith being the other.

In answering the Interrogatories Shirley Smith asserted that prior to the execution of the contract for sale, she and Sam King owned the real estate as joint tenants with the right of survivorship and not as tenants in common; and, therefore, she was entitled to the total proceeds of the sale. She further divulged that she had in her possession and under her control a Certificate of Deposit at the First National Bank of Car-rollton in the principal amount of $10,000, payable to Sam King, Agnes King, Shirley Smith or David Smith; and a Certificate of Deposit at the First National Bank of Car-rollton in the principal amount of $40,000, payable to Sam King, Agnes King or David Smith. This disclosure precipitated the Administrator filing his Supplemental Affidavit to Discover Assets, citing in David Smith, and to also submit Interrogatories to David Smith. Supplemental Interrogatories were also submitted to Shirley Smith. In answering Interrogatories both Shirley and David averred that they were entitled to the Certificates of Deposit, being the surviving joint tenants of Sam King, Deceased. A hearing was held in the Probate Court on April 5, 1976, and the cause was taken under advisement. On April 21,1976, the Probate Court ruled, inter alia, that Shirley and David Smith were entitled to the Certificates of Deposit as surviving joint tenants and that Shirley Smith was entitled to the entire proceeds of the contract for the sale of the real estate. The Administrator appealed to the Circuit Court of Carroll County on April 30, 1976.

On November 23, 1976, trial was had before the Circuit Judge (now retired) without a jury. On December 20, 1976, judgment was entered decreeing (I) that Shirley and David Smith were surviving joint tenants of Sam King and entitled to the Certificates of Deposit; and (II) the Estate and Shirley Smith were each entitled to one-half of the proceeds from the contract for the sale of real estate. Each party duly perfected their appeal. We will focus on the evidence adduced as we discuss each topic.

I

CERTIFICATES OF DEPOSIT

For reversal the Administrator urges that the (1) Certificates of deposit did not comply with Section 362.470; (2) the Certificates having been purchased solely from the funds of Sam King and his deceased wife belonged to his Estate; (3) the admission of testimony of F. G. Rea was violative of Section 491.010, the “dead man’s statute”; and (4) the “best evidence rule” should have excluded the admission of certain defendant’s exhibits. We will identify the alleged erroneous evidence and exhibits as we discuss these points.

On November 10,1975, the First National Bank of Carrollton, Missouri, by its President, F. G. Rea, issued its nonnegotiable Certificate of Deposit No. 7995 in the face amount of $40,000. This Certificate recited that “Sam King, Agnes King or David Smith” had deposited that amount with the bank, payable 12 months hence with interest at the rate of six percent per annum. Also, on the same date the bank issued its Certificate of Deposit No. 7996. That Certificate recited that “Agnes King, Sam King, Shirley Smith or David Smith” had deposited $10,000 under the same terms. Each Certificate recited that the interest was to be deposited “to checking account.” Each Certificate bore the social security account No. [ XXX-XX-XXXX ]. Neither the owner of the checking account to which the interest was to be deposited nor the owner of the social security number was identified on the documents.

The Certificate of Deposit form used by the bank was in triplicate with carbon paper inserted between the first and second and second and third forms by the manufacturer. As can be gleaned from an examination of the exhibits, and as testified to by the Administrator’s witness, a vice-president of the bank, the inserted carbon paper permits the completion of the original and two duplicates contemporaneously, whether it be in longhand or typing. On completion of the Certificate the original was given to the depositor and the two duplicates were kept by the bank as its records of the transaction. The quoted language which we have set forth above appears on the face of the original and the duplicates. On the reverse side of what appears to be the first duplicate of No. 7996, is printed a graph to record interest accrued. On the reverse side of what appears to be the second duplicate is a graph to record payment of accrued interest. Under the legend for disposition of interest, an “X” appears in the box adjacent to “deposit to checking account.” The names of the depositors are the same as on the face of the Certificate and, likewise, are written in longhand. Under the printed word “authority” appears the signature of Agnes King. Under the signature of Agnes King appears the printing “payable to either/or survivor.” In the box adjacent to that printed language an “X” in ink has been placed. The reverse side of the two duplicates of Certificate No. 7995 are the same with one addition. On the reverse side of the second duplicate following the longhand names of the depositors appears “either/or surv.” The Administrator, as plaintiff, introduced the original of each Certificate and objected strenuously to the admission of the two duplicate copies of each Certificate by the defendants. The court received the duplicates on the grounds that the face of the Certificate created an ambiguity as to the intent of the parties in the creation of the joint tenancy account. The Administrator now urges that the admission of these duplicates violates the common law “best evidence rule.”

The transcript reveals that during the cross-examination of plaintiff’s witness concerning the duplicates of each Certificate, the Administrator made various objections to the testimony leading to the admission of the duplicates, none of which objections encompassed the reason now advanced. The purpose of objections is to avoid trial error and to enable the court to rule intelligently. To that end the burden is on the party who objects to the admission of evidence to state the proper ground for exclusion, Lewis v. Hubert, 532 S.W.2d 860 (Mo.App.1976). Objections should be specific so that the trial court can realize what rule of evidence is being invoked and why that rule of evidence would exclude the evidence, Lindsey v. P. J. Hamill Transfer Company, 404 S.W.2d 397 (Mo.App.1966). Where the proper objection is not made the trial court cannot be convicted of error in overruling the objection, Crabtree v. Reed, 494 S.W.2d 42 (Mo.1973); and nothing is preserved for appellate review, Federal Deposit Insurance Corporation v. Crismon, 513 S.W.2d 305 (Mo.1974); Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603 (Mo.App.1970).

In a court-tried case this Court does not consider errors as such in the admission or exclusion of evidence; but we arrive at our conclusions by considering only the evidence which is properly admissible, Ruckman and Hansen v. State Highway Commission, 546 S.W.2d 500 (Mo.App.1976); Hunt v. Easley, 495 S.W.2d 703 (Mo.App.1973); Triplett v. Wyatt, 360 S.W.2d 386 (Mo.App.1962). There is a reason why the duplicate of each Certificate was admissible which lays waste to the Administrator’s “best evidence rule” assertion. The original and two duplicates of each Certificate were completed contemporaneously by the use of carbon paper. The second and third sheets are not considered as copies, but as duplicates. “A carbon copy of a document is a duplicate or an original document repeated, and where signed by the parties or otherwise properly identified, is admissible over an objection that it is not the best evidence,” Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69 (Mo.banc 1964). In Schroer v. Schroer, 248 S.W.2d 617 (Mo.1952), the admissibility of a duplicate deposit slip was at issue; and it is stated, l.c. 622, “a duplicate is, in legal conception, ‘an original instrument repeated, a document the same as another in essential particulars, differing from a copy and being valid as an original.’ See also Central Missouri Foods, Inc. v. General Grocer Co., 538 S.W.2d 63 (Mo.App.1976), involving a xerox copy of a letter; and Adler v. Ewing, 347 S.W.2d 396 (Mo.App.1961), pertaining to a carbon copy of a work order. In the factual situation of this case, when the testimony attested to the contemporaneous completion of both sides of the documents, the carbon copies were properly admitted as duplicates.

Perpetuating the same argument as to the nonadmissibility of the duplicates, the Administrator urges that the original of each Certificate, considered alone, did not conform to the requirements of Section 362.470, RSMo., so as to create a joint tenancy in Shirley and David Smith as survivors of Agnes King who died on the 8th day of March, 1975, and Sam King who died on the 9th day of October, 1975. This argument continues to ignore that the duplicates were properly admitted into evidence, and, with the original, constitute the total documentation of the transactions, In Re Estate of LaGarce, 487 S.W.2d 493 (Mo.banc 1972). We can perceive no difference in creating bank records by the mechanics used in this case than the printed “signature card” commonly found in the cases in which the application of Section 362.470 is in issue.

That section pertains to the creation of joint tenancy accounts with banks and trust companies, and in its pertinent part provides:

“When a deposit is made by any person in the name of the depositor and any one or more other persons, whether minor or adult, and in form to be paid to any one or more of them, or the survivor or survivors of them, the deposit thereupon and any additions thereto made by any of these persons, upon the making thereof, shall become the property of these persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any of them, or to the survivor or survivors of them; ... If more than two persons are named as such depositors and one of them dies, the deposit becomes the property of the survivors as joint tenants.”

We also note Section 369.150 is almost an identical statute pertaining to joint tenancy accounts with savings and loan associations. In all material respects both sections are the same, In Re Estate of LaGarce, supra, and the law pertaining thereto is applicable to both, Matter of Estate of Parker, 536 S.W.2d 25 (Mo.banc 1976).

In LaGarce the confusion established in the earlier cases (many of which were overruled by LaGarce) construing these sections of our statutes was eliminated; and it was unequivocably established “that if the statute is complied with, in the absence of fraud, undue influence, mental incapacity, or mistake, the survivor will become the owner of the account,” supra, at p. 501. The parties have not cited, nor has our own independent research revealed, a case wherein the creation of the certificates of deposit was accomplished in a factually analogous fashion. Section 362.470 does not dictate the mechanics to be followed, or the precise language to be used, to create a joint tenancy account. It merely requires that the account be “in form to be paid to any one or more of them, or the survivor or survivors of them” in order to be a joint tenancy account. In this case the nonnegotiable original of the certificates as given to the depositors did not contain the language that the depositors were joint tenants with the right of survivorship, but the contemporaneously executed duplicates, which must also be considered, contained that language. In our view this sufficiently complied with the statute to make Shirley and David Smith, as the survivors, the owners of the certificates, LaGarce, supra. The bank was apparently of the same mind and thought it was sufficiently acquitted in accordance with Section 362.470 as those certificates were paid to Shirley and David Smith on October 10, 1975, the day following the death of Sam, Dalton v. American National Bank, 309 S.W.2d 571 (Mo.1958). Moreover, an additional basis exists for affirmance of this portion of the judgment entered by the court below.

The trial court found in favor of Shirley and David Smith on the grounds that the evidence disclosed the intent of the depositors to establish a joint tenancy account. The evidence which supports this finding is the documentary evidence to which we have already alluded and the testimony of F. A. Jones, called as a witness by the Administrator, and Frank G. Rea, called as a witness by the Smiths. The witnesses were, respectively, Vice President and President of the bank.

In essence, Mr. Jones, who did not attend the transaction testified to the contemporaneous creation of the original and two duplicates of each Certificate, that the Certificate forms as filled in created a joint tenancy account with the right of survivorship, that Agnes King signed the reverse side of each duplicate and that the interest paid on the Certificates was deposited in a checking account maintained at the bank in the names of Agnes King, Sam King and David Smith, as joint tenants with the right of survivorship. He further testified that Shirley Smith was the natural daughter of Agnes King, and had for many years, before and after David’s birth, made her home with her mother and her stepfather, Sam King.

Mr. Rea testified to the fondness Sam King expressed for Shirley Smith and the familial relationship that existed between them. He also testified that on January 10, 1975, Sam and Agnes King appeared at the bank and he personally handled the creation of the involved Certificates of Deposit. The Certificates, in triplicate, were completed by him at the direction of Sam and Agnes King, with the duplicate copies of each Certificate being signed by Agnes King. The Certificate was completed so as to comply with the stated wishes of both Sam and Agnes that the Certificates would go to Shirley and David upon their deaths.

In Melton v. Ensley, 421 S.W.2d 44, l.c. 52 (Mo.App.1967), it is stated (modified so as to conform to the holding in LaGarce), “[wjhere the deposit is neither made within the words or purview of the joint deposit statutes nor accompanied by a joint tenancy deposit agreement, no . joint tenancy with the attendant right of survivor-ship [is created] and the burden is cast upon the survivor to show by a preponderance of the evidence the deposit was made with the intention of creating a joint tenancy. It is the intention of the depositor which controls, . . . and not the mere form in which the deposit is made.” In that case the depositor, Melton, purchased a certificate of deposit and established savings accounts in the names of “L. Elmo Melton or Oba T. Ensley.” In creating these accounts Mr. Melton told the institutions he wanted Ms. Ensley to be the joint tenant with the right of survivorship. Other evidence supported this expressed intent. The court held that the accounts did not comply with the joint tenancy statutes, but the intent of the depositor was sufficiently established to reverse the trial court and award the funds to the defendant as surviving joint tenant.

In this case both the documentary evidence and the testimony of the two witnesses clearly, and without equivocation, leads to the conclusion that Sam and Agnes King desired Shirley and David Smith be joint tenants with the right of survivorship, Princeton State Bank v. Wayman, 271 S.W.2d 600 (Mo.App.1954). There being no evidence of fraud, undue influence, mental incapacity or mistake, Shirley and David Smith, as the survivors, became the owners of the Certificates, In Re Estate of LaGarce, supra, and the court below was correct in so ruling. The cases of Ison v. Ison, 410 S.W.2d 65 (Mo.1967), Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975), and Matter of Estate of Bonacker, 532 S.W.2d 898 (Mo.App.1976), relied upon by the Administrator are factually inapposite. In those cases the alleged joint tenant did not introduce evidence to prove the depositor’s intention to create a joint tenancy account.

The Administrator’s contention that the Certificates must be awarded to the Estate on grounds they were purchased from funds belonging solely to Sam and Agnes King can be ruled adversely as not being the law or the evidence. Except during the lifetime of the various depositors, it matters not whose funds were used to purchase the Certificates, Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973); and upon the death of the depositor, the survivor becomes the owner, LaGarce, supra. The testimony of Frank Rea and an exhibit establishes that the funds used to purchase these two Certificates was obtained from cashing a Certificate of Deposit in the sum of $71,000, payable to “Sam King, Agnes King or David Smith, either/or survivor.”

The Administrator further asseverates that the testimony of Frank G. Rea concerning the intent of Sam and Agnes King to make a joint tenancy deposit should not have been received as their deaths disqualified him from testifying because of Section 491.010, commonly referred to as the dead man’s statute. The respondents counter that the Administrator did not make a timely or proper objection to that testimony and, therefore, the disqualification was waived, and the court did not err in the receipt of this testimony.

The cases universally divide the statute into “transactions” and “administration” provisions, Flanagan v. DeLapp, 533 S.W.2d 592 (Mo.banc 1976). Under the “transactions” provision, a contracting party or party to a cause of action is not deemed incompetent for all purposes, but only as to those matters which the dead party could deny; while under the administration provision, when the administrator or executor is a party to the action, the surviving contracting party is disqualified as to all acts and contractual matters occurring before the commencement of probate, Birdsong v. Estate of Ladwig, 314 S.W.2d 471 (Mo.App.1958); Fellows v. Farmer, supra. It is obvious from reading the Administrator’s Point Relied On that he ascribes claimed error to the “transactions” provision of the statute. Since the witness is not incompetent under the dead man’s statute for all purposes, objections to his testimony must be timely and sufficiently exact to inform the court of the reason why the witness is disqualified in a particular instance, Birdsong v. Estate of Ladwig, supra; Fellows v. Farmer, supra; State ex rel. Community Heating and Air Conditioning Co., Inc. v. Schwartz, 452 S.W.2d 243 (Mo.App.1970); Upshaw v. Latham, 486 S.W.2d 656 (Mo.App.1972); Elsea v. Smith, supra.

Mr. Rea, president of the bank, was called as a witness by the Smiths. Mr. Rea’s testimony consumed 12 transcript pages and he answered 60 questions before the Administrator voiced an objection which included reference to Section 491.010. That Objection, “It is in violation of the dead man’s statute,” was to the question, “What did you tell him?” Prior to that question, he had made objections stating various reasons, none of which included the alleged disqualification of the witness under Section 491.010. Prior to this objection, the witness had testified, inter alia, to his name and occupation, his longtime business relationship with Sam and Agnes King, and the relationship between the four depositors. He had further testified as to the contemporaneous completion of each Certificate with the two duplicates, that he checked the box indicating a joint tenancy with the right of survivorship because he was told to do so by Sam and Agnes, and that Agnes signed the duplicate of each Certificate. Further testimony received prior to the described objection included inquiry by, and advice to, Sam as to the deposited funds going to the named survivors upon his death.

In Upshaw v. Latham, supra, it was ruled that the competency of the witness was waived when an objection was voiced after the witness answered 19 questions. While we do not reach the same result on a mathematical basis, there can be no question that the competency of Mr. Rea was waived by the Administrator. The objection voiced was not timely made, was only a general objection and did not apprise the court the grounds for the witness’s disqualification, Birdsong v. Estate of Ladwig, supra; State ex rel. Community Heating and Air Conditioning Co., Inc. v. Schwartz, supra. The trial court did not commit error in the receipt of Mr. Rea’s testimony.

In addition to the four points relied on which we have identified above the Administrator, in Point III, asserts, “(T)he trial court erred in admitting extrinsic evidence concerning the two Certificates of Deposit numbered 7995 and 7996 because the common law ‘Parol Evidence Rule’ prohibits such evidence in that no parol evidence is admissible where the instrument is a complete integration of the parties’ agreement and is unambiguous.” This point violates the requirements of Rule 84.04(d), being merely an abstract statement, and preserves nothing for appellate review, Simpson v. Island View Sales Corp., 540 S.W.2d 624 (Mo.App.1976); Barber v. M.F.A. Milling Co., 536 S.W.2d 208 (Mo.App.1976); McCarty v. Donahue, 545 S.W.2d 359 (Mo.App.1976). That rule requires that the appellant “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . . . Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.” These requirements are mandatory and applicable to court tried cases, Long v. Lincoln, 528 S.W.2d 512 (Mo.App.1975). The Administrator does not identify the admitted extrinsic evidence or state wherein and why the court erred in admitting this unidentified extrinsic evidence, but leaves it to conjecture and for us to ponder and guess, Matter of Estate of Langford, 529 S.W.2d 31 (Mo.App.1975); Barber v. M.F.A. Milling Co., supra. We are not obligated to sieve the argument portion of the brief or the transcript on appeal in an effort to ascertain the meaning of this point relied on, Dors v. Wulff, 522 S.W.2d 325 (Mo.App.1975). Even if we were to speculate that the Administrator is referring to the admission into evidence of the duplicates of the Certificates, and that would be sheer speculation, we háve already discussed that point.

II

REAL ESTATE TRANSACTION

Relying on the 1956 Iowa Supreme Court case of In Re Estate of Baker, 247 Iowa 1380, 78 N.W.2d 863, 64 A.L.R.2d 902, the trial court adjudged that the Administrator and Shirley Smith were each entitled to one-half the proceeds from the sale, in the form of a contract for deed, of joint tenancy real estate.

On May 2, 1975, “Sam King and Shirley Smith, his daughter, as joint tenants with right of survivorship and not as tenants in common” were granted fee simple title to certain described real estate by Ola C. Heideman. On July 29, 1975, Sam and Shirley contracted to deed that real estate to Marvin E. and Janet E. Wheeler, husband and wife, upon the full performance of the terms and conditions of the contract. The pertinent provisions of the contract were the sale price of $29,000 payable $3,000 at the signing of the contract, and the balance payable at the monthly rate of $218 which was first to be applied to the payment of accrued interest, computed at the agreed rate of 9% per annum, and the balance to principal. In addition, the buyers were to pay all taxes and insurance premiums necessary to keep the premises insured in an amount at least equal to the principal balance due. In accordance with the terms of the contract Sam and Shirley deposited with the First National Bank of Carrollton, as escrow agent, their warranty deed and the abstract of title, and the Wheelers deposited their quit-claim deed. The Wheelers were granted immediate possession of the realty. The contracting parties further agreed that in the event the buyers failed to pay the taxes or insurance premiums or make the monthly payments within 60 days after the same were due, the contract would terminate, the monies paid would be considered rent, the buyers would relinquish possession, and the mentioned documents held by the escrow agent would be delivered to the sellers. Upon the payment of the balance due, and the contract permitted acceleration, the documents held by the escrow agent were to be delivered to the buyers and the contract was to be terminated as having been performed. The contract provided it was “binding on the parties, their assigns, successors, heirs and legal representatives.” In the contract, warranty deed and quit-claim deed the sellers were referred to as “Sam King, single, and Shirley Smith, single.” At trial time the parties agreed the contract was still executory and the buyers were in full performance with the principal balance of $25,-959.95 due. There is no contention that Sam King and Shirley Smith did not own the real estate as joint tenants with the right of survivorship and not as tenants in common at the time of entry into the agreement with the Wheelers, Sections 442.450 and 442.460.

By its ruling the trial court decreed that the act of Sam and Shirley in contracting to deed the real estate to the Wheelers effectuated a conversion of the sale proceeds into tenancy in common property. This was the result reached in the Baker case, supra, upon which the trial court relied. In that case Allie Baker and his wife, Clara, owned two separate tracts of real property as joint tenants which they contracted to sell by installment contracts. After the death of Allie, Clara instituted a declaratory judgment action against the administrator of her husband’s estate to determine the ownership of the proceeds of the installment sale contracts. In a 5-4 opinion the Iowa Supreme Court held, “a severance of a joint tenancy results where a contract for the sale of real estate is entered into by the joint tenants . . . . The contract for sale resulted in an equitable conversion of the real estate into personalty.” The Court further held the vendor (plaintiff) did not show by competent evidence “it was the intention of the vendors in the real estate contract the proceeds received therefrom were to be held in joint tenancy with right of survivorship.”

The doctrine of equitable conversion is recognized in Missouri, but it is almost always applied in matters pertaining to probate estates. See Volume 7A, Missouri Digest, Conversion. The usual application of this doctrine is when the testator orders his executor to sell real estate and distribute its proceeds to named legatees without any grant of discretion to the executor. A fictional or constructive alteration of the land is created whereby it is to be considered personalty and dealt with as such, Turner v. Hine, 297 Mo. 153, 248 S.W. 933 (1923); Ganahl v. Ganahl, 323 Mo. 620, 19 S.W.2d 898 (1929). The doctrine of equitable conversion is founded on the maxim that equity regards that as done which ought to be done and is a legal fiction which converts real property into personal property, or vice versa, so as to give effect to directions in a will or contract, although no change has actually taken place, O’Bannon’s Estate v. O’Bannon, 142 Mo.App. 268, 126 S.W. 215 (1910); Turner v. Hine, supra; 18 C.J.S. Conversion §§ 1 and 2, page 45. We have not found any Missouri case wherein the doctrine of equitable conversion has been applied as it was in the Baker case from Iowa.

Two years before the Supreme Court of Iowa published its sharply-divided opinion the Nebraska Supreme Court reached the same result in Buford v. Dahlke, 158 Neb. 39, 62 N.W.2d 252 (1954). Nevada and Idaho in the cases of McKissick v. McKissick, 560 P.2d 1366 (Nev.1977), and In Re Estate of Cooke, 96 Idaho 48, 524 P.2d 176 (1973), have also adopted comparable holdings.

The states of Illinois, Massachusetts, Wisconsin, Arizona, Montana, Indiana, New York and Kansas have refused to apply the doctrine of equitable conversion in the cases of Watson v. Watson, 5 Ill.2d 526, 126 N.E.2d 220 (1955); Childs v. Childs, 293 Mass. 67, 199 N.E. 383 (1936); Simon v. Chartier, 250 Wis. 642, 27 N.W.2d 752 (1947); Kurowski v. Retail Hardware Mutual Fire Insurance Company, 203 Wis. 644, 234 N.W. 900 (1931); Smith v. Tang, 100 Ariz. 196, 412 P.2d 697 (1966); Estate of Rickner, 164 Mont. 51, 518 P.2d 1160 (1974); Hughes v. Hughes, 356 N.E.2d 225 (Ind.App.1976); Re DeWitts Will, 202 Misc. 167, 114 N.Y.S.2d 81 (1952); Hewitt v. Biege, 183 Kan. 352, 327 P.2d 872 (1958), by decreeing that the proceeds from the sale of tenancy property retains those tenancy characteristics, in the absence of the vendor’s intention to the contrary.

There is considerable Missouri authority that proceeds from the sale of property held by the entirety, absent other factors, retains its entirety characteristics after sale and even after reinvestment.

In Schwind v. O’Halloran, 346 Mo. 486, 142 S.W.2d 55 (1940), plaintiff and her deceased husband owned several tracts of real estate as tenants by the entirety which they sold and accepted part payment in the form of notes and deeds of trust with Mr. Schwind as the sole payee and beneficiary. In ruling adversely to the administrator, who claimed the note and proceeds as the personal property of the deceased husband, the court ruled, “the estate by the entirety did not cease to exist upon the sale of the real estate but merely was transferred from the real estate to the proceeds derived therefrom.” 142 S.W.2d at 59.

In the case of In Re Baker’s Estate, 359 S.W.2d 238 (Mo.App.1962), a discovery of assets proceedings against the administra-trix, a note representing the proceeds of the sale of entirety property was in issue. The court held, “in the absence of evidence indicating a contrary intention of both parties a tenancy will be presumed to follow the proceeds of the sale of entirety property.” At page 244.

Feltz v. Pavlik, 257 S.W.2d 214 (Mo.App.1953), involved, in part, money realized from the sale of real estate held in tenancy by the entirety. The sale proceeds were deposited in a joint tenancy account and thereafter withdrawn by the husband, who was in ill health, and paid over to a third party. In ruling the proceeds were the property of the surviving wife the court reiterated the principle that, absent an intent of the parties to the contrary, the proceeds from the sale of entirety property retain the characteristics of tenancy by the entirety ownership.

Other cases which adhere to the principle that the proceeds from the sale of tenancy by the entirety real estate retain their entirety characteristics are Hamrick v. Lasky, 107 S.W.2d 201 (Mo.App.1937) (Surplus proceeds from foreclosure sale); McElroy v. Lynch, 232 S.W.2d 507 (Mo.1950); Frost v. Frost, 200 Mo. 474, 98 S.W. 527 (1906); and Johnson v. Johnson, 268 S.W.2d 439 (Mo.App.1954).

It being clearly the law in this state that estates by the entirety may exist also in personal property, Coffey v. Coffey, 485 S.W.2d 167 (Mo.App.1972); In Re Estate of O’Neal, 409 S.W.2d 85 (Mo.1966), the aforesaid principle has been applied to personal property and money in the cases of Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960); In Re Estate of Jeffries, 427 S.W.2d 439 (Mo.1968); and Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28 (1930).

There are substantial similarities between joint tenancies and tenancies by the entirety, the latter being essentially the former, modified by the common law theory that husband and wife are one person, United States v. Jacobs, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ea. 763 (1939); Coffey v. Coffey, supra. The essential elements of each tenancy are (1) the tenants must have one and the same interest (unity of interest); (2) the interest must accrue by one and the same conveyance (unity of title); (3) the interest must commence at one and the same time (unity of time); and (4) the property must be held by one and the same undivided possession (unity of possession), Feltz v. Pavlik, supra; Schwind v. O’Halloran, supra. There are also distinctive characteristics between the two estates. Joint tenancy is based on the theory that together the joint tenants have but one estate; not a number of estates equal to the number of joint tenants; they hold per my et per tout — by the moiety or half and by the whole; that is, each joint tenant is seized of the whole estate, he has undivided share of the whole estate rather than the whole undivided share, Longacre v. Knowles, 333 S.W.2d 67 (Mo.1960); Estate of Osterloh v. Carpenter, 337 S.W.2d 942 (Mo.1960); In Re Gerling’s Estate, 303 S.W.2d 915 (Mo.1957). The most distinctive characteristic of a joint tenancy estate is that of survivorship, In Re Gerling’s Estate, supra. While each of the joint tenants has a right to possession of the premises, no one tenant has the right of exclusive possession. Whether a joint tenant will ever attain sole ownership and exclusive possession is contingent on him being the survivor. The deed creating the joint tenancy does not determine this, Estate of Osterloh v. Carpenter, supra. A joint tenancy can be destroyed by conveyance or partition by one or more of the several joint tenants during the lifetime of the cotenants, Estate of Osterloh v. Carpenter, supra. Tenancy by the entirety can only be created between husband and wife and each spouse is seized of the whole or entirety and not a share, moiety or divisible part. Neither spouse can destroy the tenancy by his or her individual act so as to defeat the right of the other to take the entire estate as the survivor, Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395 (1947); Frost v. Frost, supra. The surviving spouse continues to hold the whole title because there is no one to share it — not because of the survivorship, which effects a change in the person only and not the estate, Schwind v. O’Halloran, supra.

The cases to which we have alluded dealing with the proceeds from the sale of tenancy by the entirety estates, whether real or personal, are predicated upon the proposition that there were no acts or conduct indicating an intention of the tenants to destroy their entirety estate. In addressing the issue presented to the trial court we do not perceive a conceptual distinction between an estate held by the entirety or as joint tenants so as to mandate a different result as to the proceeds from the sale. Sam and Shirley were granted title to the real estate as joint tenants with the right of survivorship and not as tenants in common. They jointly executed the documents comprising the installment sale to the vendees.

As recognized in the Baker case emanating from the Supreme Court of Iowa, the application of the equitable conversion doctrine is predicated on carrying out the intention of the vendor, Scott v. Dougan, 527 S.W.2d 680 (Mo.App.1975); Ganahl v. Ganahl, 323 Mo. 620, 19 S.W.2d 898 (1929). The Administrator adduced no evidence to indicate it was the intention of Sam and Shirley, the vendors, to destroy their joint tenancy estate and receive the proceeds as tenants in common. The scant evidence presented to the trial judge was that the sale proceeds received by the vendors, during the lifetime of Sam King, was deposited in a savings account to which Sam and Shirley were joint tenants. The evidence which we have heretofore elucidated concerning the close familial relationship existing between Sam and his step-daughter (referred to as his daughter in the conveyancing document by which they received title to the real estate) militates in favor of the continuation of the joint tenancy. The Administrator argues that the language found in the documents comprising the transaction, taken in their totality, requires a holding that the vendors intended to destroy their joint tenancy ownership. However, said argument is only in generalities and is not supported by authorities. We have studied those documents and do not discern any language therein contained that supports the Administrator’s contention.

From what we have said it is apparent that the trial judge erroneously declared and applied the law, and the judgment in the favor of the Administrator must be reversed, Murphy v. Carron, supra, and the cause is remanded for entry of judgment decreeing Shirley Smith to be the sole owner of the sale proceeds.

All concur.

      . All statutory references are to RSMo. 1969, V.A.M.S.

      . Section 400.3-104; Jones v. United Savings & Loan Association, 515 S.W.2d 869 (Mo.App.1974).

      . This statute is a qualifying enactment in that it first removes the common law disqualification of witnesses by reason of interest, and it is a disqualifying enactment in that it then explicitly recognizes and imposes disqualification in certain instances, Fellows v. Farmer, 379 S.W.2d 842 (Mo.App.1964). The purpose of the disqualification “is to silence the voice of one of the parties to a litigated proceeding, where death has hushed into eternal stillness that of the other,” Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071 (1918); also DeMott v. Dillingham, 512 S.W.2d 918 (Mo.App.1974).

      . The judgment entered by the trial court was in the sum of $14,979.98 to each party, which is $4,000 in excess of the principal balance due. Our disposition makes it unnecessary to correct this mathematical error.

      . The Buford and Baker cases generated scholarly discussion and criticism in 38 Minn.L.R. 466 and 20 Mo.L.R. 108. See also 2 Drake L.R. 76, 90.