author: CLARK, Judge.

text:
    Ramona Lee RAVENSCROFT, Respondent, v. Robert RAVENSCROFT, Appellant.
    No. KCD 29634.
    Missouri Court of Appeals, Western District.
    July 30, 1979.

      Lee M. Nation, Kansas City, for appellant.
    Robert C. Paden, Michael W. Manners, Independence, for respondent.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   CLARK, Judge.

Robert Ravenscroft appeals the decree entered June 1,1977 dissolving his marriage to Ramona Lee, a union accomplished when both were seventeen years of age. Issues raised concern only those portions of the decree effecting division of marital property-

Appellant contends that the trial court erred in ordering division of real estate and in entering an alternative order for a cash payment by appellant to respondent, and also objects generally to the property division as inequitable and unjust. A minimal recitation of facts, essentially undisputed, will suffice to provide the requisite background.

Robert and Ramona were married July 30, 1968. Later that year, they decided to buy the home at 1022 Woodland, Independence, Missouri but, by reason of a misapprehension as to disability occasioned by their age, they arranged for title to be taken in the names of Robert’s parents, Charles and Phyllis Ravenscroft. The down payment was supplied in part from Ramona’s savings and in part from a personal loan later repaid. Installment payments on a mortgage loan were thereafter made by Robert and Ramona as were payments for taxes and insurance.

The Woodland residence was the marital home occupied during substantially the entire time the parties lived together and has been the home of Ramona and the children since the date of separation. The record title owners, Charles and Phyllis Raven-scroft, were not parties to the action and did not testify. The evidence, however, raises no suggestion that they contributed any funds toward purchase of the Woodland residence nor that they made any payments for taxes, insurance or repairs. The state of the record title and the existence of a mortgage debt do justify an assumption that Charles and Phyllis Ravenscroft executed the mortgage note and are potentially liable for any deficiency remaining after default and foreclosure. The question of to what extent the residence purchase was facilitated by obligation and interposition of the senior Ravenscrofts’ credit as makers of the mortgage note is undisclosed in this record.

The parties acknowledged at trial that disposition of the Woodland property was the principal subject of dispute. The order of the trial court relative thereto found the Woodland real estate to be marital property and directed appellant “to cause title to said real estate conveyed to Petitioner.” Upon failure of appellant to do so, he was directed in the alternative to pay Ramona $10,-000.00. Other property dispositions and allowances in the decree are not material to disposition of this appeal and are not recited.

Robert first contends that the trial court had no jurisdiction to make any disposition of the Woodland residence because the status of record title in Robert’s parents precluded designation of the real estate as marital property. Despite the uncontro-verted evidence that Robert and Ramona made the down payment and the monthly mortgage payments from their own resources and that no contribution toward acquisition or maintenance of the home was shown to have been furnished by the record title holders, Robert asserts that he, and presumably Ramona, never had any legal or equitable interest in the property. From this he argues that the residence was not subject to disposition by the court as marital property and cites Cain v. Cain, 536 S.W.2d 866 (Mo.App.1976).

Reliance by appellant on the Cain case is misplaced. In that ease, certain real estate had been acquired by the husband before the marriage and was titled in his name. During the marriage, payments derived in part from marital funds reduced a mortgage debt on the property and increased the equity value. The court held that such payments did not alter the status of the property itself as separate property of the husband because owned prior to the marriage and, hence, not included under Section 452.330-2, RSMo 1978. Specifically not ruled as unnecessary by reason of other available assets was a decision as to imposition of a charge on the property equal to the enhancement of its value through the contribution of marital funds which reduced the debt.

To the limited extent applicable here, the Cain case simply holds that separate property of a spouse owned prior to the marriage does not become marital property merely because a mortgage debt encumbering the property is reduced by application of funds which themselves constitute marital property. Even in such circumstances, however, a charge may be imposed on the separate property to the extent that separate funds of the other spouse or marital funds are expended to reduce the debt or enhance the value of the asset in question. See Gapsch v. Gapsch, 277 P.2d 278 (Idaho 1954) annotated at 54 A.L.R.2d 416. In the present case, the Woodland property was purchased during the marriage and, if there be any interest therein owned by Robert and Ramona, such is necessarily marital property by the direction of the statute. Section 452.330-2, RSMo 1978.

On the uncontroverted facts demonstrating that Robert and Ramona supplied the funds to purchase the Woodland property and currently retire the mortgage debt, it is fatuous to contend that they never had any legal or equitable interest in the property. Appropriate to this aspect of the case is the following analysis of the subject in Hergenreter v. Sommers, 535 S.W.2d 513 1. c. 518-519 (Mo.App.1976):

“Missouri follows the general rule that where one pays the purchase price for land with legal title taken in another, a presumption arises that the latter holds the property under a resulting trust for the payor. Davis v. Roberts, supra [365 Mo. 1195, 295 S.W.2d 152]; Carr v. Carroll, supra [178 S.W.2d 435 (Mo.1944)]; Ferguson v. Stokes, 269 S.W.2d 655 (Mo. 1954); Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981 (1936); Scott, supra, § 440. This theory is founded on an assumption that one who provides purchase money intends to receive the benefit of the purchase and the law will imply that intention in absence of rebutting facts and circumstances. 2 Bogert, supra, § 454. Application of the rule is peculiarly appropriate where a child furnishes the purchase money and for reasons of convenience, minority, or otherwise, title is taken in his parents. Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610, 614-615 (1941). In such circumstances, the presumption is that of a resulting trust in favor of the child as opposed to a presumption of gift or advancement. Padgett v. Osborne, supra [359 Mo. 209], 221 S.W.2d [210] 1. c. 212; Davis v. Roberts, supra, 295 S.W.2d 1. c. 156.”

The trial court here found, and the evidence countenances no other result, that appellant’s parents held title to the Woodland property as trustees for the benefit of Robert and Ramona as owners of the equitable title. Such equitable interest has previously been held to constitute “property” within the scope of the term as employed in Section 452.330-1 which provides, in part: “In a proceeding for * * * dissolution of the marriage * * * the court * * shall divide the marital property in such proportions as the court deems just * Claunch v. Claunch, 525 S.W.2d 788 (Mo. App.1975).

It was therefore obligatory in this case for the trial court to make disposition of the equitable interest of the parties in the Woodland home as marital property. In so doing, the court assigned the full equity interest to Ramona and, as previously noted, directed Robert to arrange for conveyance to Ramona of the legal title. Upon his failure to do so, he was ordered to pay Ramona $10,000.00. While this decree is an innovative approach to the problem presented the orders quoted did not result in a valid, enforceable judgment.

Nothing in the evidence warrants a conclusion that Robert has the actual or practical ability to procure and deliver the deed in compliance with the order. At best there is no more than some inference by reason of the family relationship that Robert could prevail upon his parents to execute a deed which they are otherwise under no present obligation to sign. The situation is distinguishable from those cases in which a party may have the ability to comply (as, for example, to execute a conveyance of real estate outside the court’s jurisdiction) and may, by the remedy for contempt, be coerced to perform. No such vehicle is available here.

Upon failure of Robert to obtain the deed, this decree would not support execution or any other process available to Ramona for enlisting the court’s aid in procuring a deed. Concurrently, however, the availability to Ramona of execution on the alternate judgment for $10,000.00 is uncertain because conditioned on a prior event, the failure of Robert to cause title to be conveyed. Further uncertainty is added by reason of the absence of any time limit within which Robert may avoid liability for the cash payment by obtaining the deed.

An essential requirement of a judgment is that it be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law. To comply with this requirement, the judgment must adjudicate the controversy to a conclusion which permits issuance and processing of an execution without external proof or another hearing. Brolinson v. Brolinson, 564 S.W.2d 911 (Mo.App.1978); Bishop v. Bishop, 151 S.W.2d 553 (Mo.App.1941).

In the subject case, future enforcement of the judgment is dependent on subsequent inquiry dehors the record as to whether or not Robert has caused title to be conveyed and, if not, whether sufficient time has elapsed so that failure to do so obligates him to payment of the sum as contemplated by the alternative judgment. Execution on the cash award of the judgment would require another hearing. The judgment is therefore not sufficiently definite to be capable of enforcement and fails on that ground. Sunderwirth v. Williams, 553 S.W.2d 889 (Mo.App.1977).

As a consequence of the foregoing deficiency in the judgment entry, the marital assets represented by the equitable title of the parties in the Woodland property remain undivided and undisposed. Where full disposition of marital property is not accomplished, the trial court has not exhausted its jurisdiction and no final appeal-able judgment results. Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977). The cause must therefore be remanded for further proceedings.

Upon remand, the trial court will again confront the impediment generated by record title to the Woodland property being lodged in third parties, Charles and Phyllis Ravenscroft. Comment as to appropriate means designed to resolve the dilemma is therefore indicated.

In a marriage dissolution action, the trial court is expressly directed by the statute, Section 452.330-1, to divide the marital property. Unless and until all marital property has been identified, evaluated and divided, the trial court cannot conclude the proceeding in a final judgment. Anspach v. Anspach, supra. Thus, the trial court here must effectively dispose of the Woodland residence consistent with the purpose of the Dissolution of Marriage Act, that is, to minimize necessity for recourse by the parties to subsequent litigation and to accomplish in the judgment a complete severance of unity of possession and title to property between the spouses. Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977).

Absent jurisdiction over Charles and Phyllis Ravenscroft as record title owners, however, no judgment in this case can finally settle title to the Woodland property. Additionally, any judgment which fails to bind these additional parties cannot foreclose the prospect that they may in the future assert and establish a claim to the property reducing or eliminating values used in the dissolution case to balance marital property distribution. Ownership by outside parties of an interest in marital property therefore directly affects the function of the trial court in deciding the issue of just division of marital assets and in settling titles.

The prevailing view in numerous jurisdictions now holds that although the spouses are ordinarily the only proper parties to divorce litigation, joinder or intervention of third parties is permissible and necessary where such third parties hold or claim some interest in property involved in the proceedings. Divorce-Third Parties’ Claims 63 A.L. R.3d 373 1. c. 378. The rationale supporting this authority rests on the inability of the divorce court to make an equitable division of the property if all claims of interest owners are not simultaneously adjudicated and the consequent multiplicity of suits or circuity of actions if third parties are left subsequently to litigate their claims with the divorced spouses.

Although third-party claims may affect disposition in a divorce action of tangible and intangible assets, the title characteristics of real estate in particular more forcefully militate in favor of joinder of third-party claimants. Thus, in the case of In Re Marriage of Davis, 68 Cal.App.3d 294, 137 Cal.Rptr. 265 (1977), it was held that the divorce court (a court of limited jurisdiction in California) properly acquired jurisdiction over parents of both spouses to adjudicate the spouses’ claims that marital real estate was titled in the names of the parents “for convenience only.”

In commenting on the California Civil Code, § 4800, which obligates the court in a dissolution proceeding to divide the community property, the court stated:

“Clearly where it is contended that a third person holds title to community property for convenience only without any valid interest therein, the court could not make an appropriate division of community property and properly discharge its statutory duty without first determining the question of whether or not the community property includes the property to which title is being held by a third person. So long as the property and the persons claiming title thereto were within the territorial jurisdiction of the court, as is true in the case at bar, the question is not a question of jurisdiction, but a question of due process.”

In Breidenthal v. Breidenthal, 182 Kan. 23, 318 P.2d 981 (1957), the wife alleged in a divorce action that her husband had collu-sively transferred property to relatives participating in a family partnership and that the purpose of the transfer was to defeat the wife’s marital rights. The court held that the relatives should be joined as necessary parties to permit the court to identify and evaluate the property in question and assess appropriate allowances for the wife.

In Wright v. Wright, 199 Okl. 291, 185 P.2d 915 (1947), a third party claiming an interest in property alleged to belong to either spouse was properly added as a party to the divorce action for determination of the property rights of the principal parties. Other cases in which joinder of third parties in divorce cases was approved include Picchi v. Picchi, 100 So.2d 627 (Fla.1958), joint interest in property claimed by husband, wife and third party; Davis v. Davis, 261 Iowa 992, 156 N.W.2d 870 (1968), interest of third party adversely affected by divorce decree; Baker v. Baker, 6 Ill.App.2d 557, 128 N.E.2d 616 (1955), expedite and minimize extent of litigation; Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970), joinder of husband’s father to adjudicate claim of fraudulent conveyance; Re Marriage of Holemar, 27 Or.App. 613, 557 P.2d 38 (Or.1976), joinder of daughter to whom marital property had allegedly been conveyed.

While some states, notably Michigan and Wisconsin, limit third-party joinder in divorce cases to particular circumstances of conspiracy and fraud practiced on the wife, the more generally accepted rule requires joinder as an incident to the property disposition aspect of divorce decrees. The salu-tory effect of reducing or eliminating future litigation as well as the necessity for ascertainment and evaluation of property interests to be divided are most frequently cited as the basis for extending the scope of the divorce case beyond the two original, principal parties.

The present Missouri statute which requires division by the court of marital assets has expanded the dissolution case to include all proceedings necessary to settle title and ownership of real and personal property constituting or claimed to be marital property or separate property. As to the former, the court must divide the property, and as to the latter, the court must set the property apart to the appropriate spouse. Where, as here, a record interest or a claim of interest by a third party attaches to the property with which the court’s order in the dissolution case must deal, and where the interest is such that the court’s judgment either will be ineffective to conclude that interest without adjudicating the third-party claim or would adversely affect the rights of the third party, the necessity for joinder is apparent in accord with the cases above cited.

Rule 52.04(a) anticipates joinder of third parties under the circumstances described. By application of procedures under the rule, either spouse may move to add the third party or, failing action by the parties, the court may determine that the third party is indispensable and that the case may not proceed. Assumed as conditions to joinder of additional parties to the dissolution action are personal or subject matter jurisdiction, both of which exist in the subject case, requiring that Charles and Phyllis Ravenscroft be joined in this action for conclusive adjudication of all claims to the Woodland property. To that end, after notice, the third parties are entitled to be heard on their claim, but with their participation in the case limited to that subject. The judgment which follows will then finally decree ownership in the property as the parties’ interests may be found.

Appellant’s final sub-point of alleged error, stated in its entirety, reads: “Said decree was an inequitable and unjust division of property.” The point violates Rule 84.04(d) because it fails to state wherein and why the division of property is claimed to be erroneous. The point fails to preserve anything for review. Oasis Car Wash, Inc. v. First North County Bank, 558 S.W.2d 683 (Mo.App.1977).

Also requiring disposition in this case is an abortive attempt by Robert to appeal an order of unknown content entered by the trial court September 7, 1977. Such was the subject of a notice of appeal filed October 12, 1977. The notice included no jurisdictional statement as required by Rule 81.-08 and the transcript ultimately filed March 15, 1978 reflected only those proceedings in the trial court to June 1, 1977, the date of entry of the judgment originally appealed. Respondent has moved to dismiss the latter appeal and for an award of damages for frivolous appeal. The motions were taken with the case.

Upon the obvious failure of appellant to comply with Rules 81.08, 81.18 and 84.04, the appeal from the order of September 7, 1977 is dismissed. As to respondent’s motion for damages under Rule 84.19, however, the record here is insufficient to permit responsible review of the motion on the merits. The parties in their suggestions exchange charges of abuse of process and bad faith but even the content of the order sought to be appealed has not been disclosed. As the test to determine if an appeal is frivolous is consideration of whether the question raised on appeal is at least fairly debatable, Brooks v. General Motors Assembly Division, 527 S.W.2d 50 (Mo.App.1975), the absence of any record disclosing what issue originated in the September 7, 1977 order precludes addressing respondent’s motion for allowance of damages. Such motion is therefore overruled.

The judgment is affirmed insofar as it grants the order of dissolution and awards custody of the children and awards support and maintenance. The case is remanded for further proceedings consistent with this opinion relative to division of marital property and entry of judgment thereon.

All concur.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    Vincent LeMEHAUTE and Ruth M. LeMehaute, Respondents, v. Renee D. LeMEHAUTE, Appellant.
    No. KCD 29725.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Robert B. Miner, Utz, Litvak, Thakery, Utz & Taylor, St. Joseph, for appellant.
    R. Michael Poland, Cameron, George A. Pickett, Frost, Fisher & Poland, Plattsburg, for respondents.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   SHANGLER, Presiding Judge.

The court determined that the deed of realty by plaintiff Vincent LeMehaute jointly to himself, his present wife and defendant Renee LeMehaute [daughter by the previous marriage] was not a present conveyance of interest to daughter Renee and decreed that the instrument be reformed so as to nullify the recital of grant to her.

The plaintiff LeMehaute and the former wife [mother of the defendant Renee LeMe-haute] acquired the real estate now in contention. The property served as the residence until her death and continued as the place of residence after she died and the husband remarried. Two children were bom of the first marriage, Renee and Lorna. No child was born to the remarriage, but the successor wife brought a son, Bruce Perkins.

On September 18, 1975, after remarriage, the plaintiff LeMehaute consulted with attorney Colley to draft a deed of grant of the premises to himself, his wife and his children, as joint tenants in order to avoid probate procedure should an event befall him. The attorney counselled that, to avoid the undue difficulty from tenure by one under age or absent from the state, LeMe-haute designate one child, local and of age, to trust to hold title for all the children. It thus came about that daughter Renee was designated as a joint grantee along with father LeMehaute and the new wife — and that daughter Lorna, then a minor, was not made a party to the grant. The plaintiff LeMehaute read the instrument prepared by counsel and signed it. The deed was recorded and some days later the plaintiff retrieved the instrument from the abstract company. He placed the deed under lock and key in a cabinet at home where it has remained.

In November of 1975, some two months after the deed was executed and recorded, the plaintiff LeMehaute disclosed to daughter Renee for the first time that she, himself and the new wife were joint grantees to the home premises. The plaintiff took the occasion to ask for her signature at the office of attorney Colley to a conveyance which added daughter Lorna and step-son Bruce Perkins as other grantees of the premises. After consultation with her own lawyer, daughter Renee refused the request as ill-advised because of the nonage of the two children. About a year later, father LeMehaute asked daughter Renee to subscribe a mortgage against the premises for a loan of $5,000 to pay bills. She refused to put the premises, only lately free from debt, under obligation again. That mortgage had been paid by the father LeMehaute without request for contribution from daughter Renee. Nor was she asked to contribute to the maintenance of the property, nor did she. On one occasion [presumably after she was designated a joint grantee by deed] she was asked to endorse the insurance check which issued for damage to the roof.

In January of 1977, some year and one-half after the execution of the deed of joint tenancy, the father LeMehaute and new wife sued to reform the deed of conveyance so as to nullify the recital of grant of any estate in the realty to daughter Renee on the ground that the deed was not delivered to her. The court rendered judgment of reformation for want of present intention by the grantor to convey any interest in the land to the daughter Renee.

The delivery of the deed is the act of consummation essential to give effect to the instrument as a conveyance of estate to realty. The delivery signifies that dominion and control over the deed passes from the grantor to the grantee with the intention to transfer the present ownership or interest in the land from the one to the other. Galloway v. Galloway, 169 S.W.2d 883, 888[10-15] (Mo.1943); 23 Am.Jur.2d, Deeds, § 78 et seq. Delivery may be by word or act, without formula or ceremony or manual tradition of the instrument. Chambers v. Chambers, 227 Mo. 262, 127 S.W. 86, 88 (1910); Dallas v. McNutt, 297 Mo. 535, 249 S.W. 35, 36 (1923). There may be delivery notwithstanding the deed remains with the grantor. Shroyer v. Shroyer, 425 S.W.2d 214, 219[2-7] (Mo.1968). It is sufficient in law for delivery that the grantor by act or word manifest that he relinquishes dominion and control over the deed and that the instrument operate presently as a transfer of title, and acceptance by the grantee. Galloway v. Galloway, supra, 169 S.W.2d 1. c. 888[10-15]; O’Mohundro v. Mattingly, 353 S.W.2d 786, 792[2] (Mo.1962).

Thus, whether there has been valid delivery is controlled by no fixed rule but presents a mixed question of fact and law determined by the concrete case. Cartmill v. Evans, 498 S.W.2d 541, 545[2] (Mo.1973). This case stands altogether on the written instrument of grant, the signature of the grantor, formal acknowledgment of signature, registry of the instrument in the office of the recorder of deeds and the intention of the grantor LeMehaute at the moment of his act.

The deed with acknowledgment of signature was recorded by the grantor. The effect of the registry act [§ 442.390, RSMo 1978] is to displace the solemn common law ceremony of livery of seisin as notice to the world that there has been a transfer of title from the grantor to the grantee. The registry act accomplishes that announcement of delivery by means of a public record rather than by the twig, clod, or key symbolic of enfeoffment at common law. Perry v. Price, 1 Mo. 553, 555 (1825). A recorded deed “ ‘is evidence of a most cogent character tending to show delivery, for it is tantamount to a public proclamation by the grantor at a public place, intended for the world to act upon, that the grantor had in apt and due form transferred his title [and thereby his land] to another.’ ” Chambers v. Chambers, supra, 127 S.W. 1. c. 92. The registry act operates to create a presumption of delivery, and although the recordation of a deed — even by the grantor — does not have the effect of delivery, that fact proves a prima facie case of delivery. Wilkie v. Elmore, 395 S.W.2d 168, 172[4-9] (Mo.1965).

The plaintiff LeMehaute disputes that the recorded deed may bear to prove delivery because he neither registered the deed nor authorized the act. The evidence was that attorney Colley — called as his witness — did not recall who recorded the deed. The testimony of plaintiff LeMehaute shows, merely, that in response to inquiry by counsel for daughter Renee: “Did you record this deed?”, LeMehaute answered: “No.” He then testified that three or four days after he signed the deed he retrieved the instrument, fully recorded, from the abstract company. While the evidence shows that LeMehaute did not himself present the deed to the recorder, the scant testimony gives inference that he [or attorney Colley for him in the normal course of such a transaction] empowered the abstract company for that purpose, caused acknowledgment of his signature on the deed to that end, awaited the lapse of time necessary for that procedure, and thereafter picked up the instrument from the abstract company, fully recorded — with all expectation and without demur.

The efficacy of delivery to recited grantee Renee is enhanced by her relationship as a daughter of grantor LeMehaute— for where a parent makes a voluntary settlement of lands upon a child, the presumption of delivery is more insistent than in a ease of bargain and sale. Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 37[10, 11] (1952). The plaintiffs contend, however, that whatever formal presumptions may favor the defendant Renee the evidence that grantor retained possession of the deed, never disclosed the transaction to Renee nor had delivery accepted by her, and that the grantor never intended a present conveyance of estate, all rebut the technical inference of delivery and establish the cause of action for reformation.

The retention of the deed by the grantor does not hinder the passage of title where delivery is intended. O’Mohundro v. Mattingly, supra, 353 S.W.2d 1. c. 792[2]. In the circumstances of this case, however, grantor LeMehaute was also a grantee and the rule applies with logic that a deed delivered to one of the several grantees operates as a delivery to all of them, in the absence of a disclaimer. Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 928[2, 3] (1933); Carr v. Lincoln, 293 S.W.2d 396, 401[5-7] (Mo.1956); 26 C.J.S. Deeds § 49, p. 707. The absence of an overt acceptance by the grantee at the moment of execution does not mar the completion of delivery where, by the circumstances, the intention of the grantor to convey title was not known. Acceptance by the grantee is presumed, however, where the grant is beneficial. Chambers v. Chambers, supra, 127 S.W. 1. c. 92. Acceptance, as delivery, may be by word or act without formula or ceremony— according to the circumstances. Weigel v. Wood, 355 Mo. 11, 194 S.W.2d 40, 41[3-5] (1946). The refusal by Renee to reconvey, her execution of the insurance claim check for damage to the premises, and her refusal to subject the property to a mortgage, were tantamount to an assent.to acceptance of delivery once the conveyance was disclosed to her. In these circumstances, the acceptance, although accomplished later related back to the time the deed was delivered by registration by the plaintiff LeMehaute with intention that title should pass to the grantee Renee. Weigel v. Wood, supra, 1. c. 41[3 — 5]; Slagle v. Callaway, supra, 64 S.W.2d 1. c. 929.

The question remains of the intention of the parties, especially that of the grantor, essential to delivery. The contentions of the plaintiffs reduce to the proposition that, the full evidence considered, LeMehaute did not intend to pass a present estate to daughter Renee — that he was unaware of the legal implications of the deed of joint tenancy and that the deed was recorded without authority.

The evidence on this issue derives altogether from the plaintiff LeMe-haute and his attorney witness. LeMe-haute had remarried and wanted the property to go to the new wife and his children by joint tenancy without interference of probate should he die. There was a minor child, Loma, so attorney Colley advised that an adult offspring who would look after the interest of the unnamed child would be a more suitable grantee. The deed was drafted accordingly. LeMehaute read the deed. He was made aware by the attorney “that the three grantees on the deed were to be himself, his wife, Ruth M. LeMehaute, and Renee LeMehaute . . . [and] that there would be no other parties that would take by virtue of the deed.” The deed was drafted accordingly. Although there was no discussion of “the legal import of the deed as such,” the lawyer explained “as part of the discussion that he would have to be able to trust this child, because if he ever wanted to do anything with the property it was going to require her signature.” [Emphasis added]. Only then did LeMehaute sign the deed prepared according to his instructions. LeMehaute was not informed, as such, that the effect of the deed was to pass a present interest to Renee, but the testimony of his lawyer-witness unmistakably conveys that import in the practical and colloquial terms best suited to his understanding. It was with that awareness that the deed was signed, acknowledged and recorded.

The contention for reformation does not rest on any evidence that the instrument of conveyance did not conform to the directions of the grantor or was fraudulent or mistaken. The initial inclination of plaintiff LeMehaute for a deed of joint tenancy to himself, his new wife and his children was modified on the advice of counsel to join only the adult daughter as a grantee. The plaintiff was prompted to the suit for reformation not to redress any oversight as to his children but by the petulance of the new wife that her son Bruce was not on the deed. This much is the sense of the testimony of daughter Renee and of the plaintiff LeMehaute himself:

Q. Were you aware that the [deed] document you now have in your hand, contained three.names as grantees, the names of yourself, Ruth LeMe-haute and Renee LeMehaute?
A. Yes.
Q. And you also were aware since you read it that the document did not contain the names of your daughter, Lorna, or your stepson, Bruce?
A. Yes, I understood that.

The burden to prove nondelivery of a deed rests on the party who asserts the affirmative of the issue — in this case, the plaintiffs LeMehaute. Galloway v. Galloway, supra, 169 S.W.2d 1. c. 888[16, 17]. The reformation of a deed is a remedy not easily gained. Equity will not divest title on less than clear and convincing proof of mistake or fraud — and will not overturn a deed, put of record by the grantor, for nondelivery on evidence any less cogent. Chambers v. Chambers, supra, 127 S.W. 1. c. 92; Allan v. Allan, 364 S.W.2d 578, 581[l-5] (Mo.1963). The plaintiff LeMehaute has not overcome the presumptions of delivery which favor the grantee from the registry of an acknowledged deed, the grant to a family member, and the retention of the instrument thereafter by the plaintiff Le-Mehaute as a joint grantee.

The discovery of intention of the grantor to make delivery of a deed refers to “the very time those acts [which consummated delivery] sprang into existence.” Chambers v. Chambers, supra, 127 S.W. 1. c. 91. An afterthought of regret does not nullify the passage of title by a delivery and made by the grantor. The admissible evidence shows an intention by LeMehaute to make the joint grant and delivery to daughter Renee, thoughtfully considered and effected with full understanding of the consequences of that conduct. This intention to part with dominion over the instrument and to pass dominion and control over the conveyance as a present grant of joint title to the land was not overcome by sufficient proof. Galloway v. Galloway, supra, 169 S.W.2d 1. c. 888[11]. Rather, the evidence by the plaintiff that he sought the consent and concurrence of his daughter to make additional grants to the other children, to encumber the land and to endorse the check which issued from the insurance coverage on the premises tends to prove that he considered he had delivered a present estate in that property to Renee.

The argument made to extricate the deed from the recordation as done without the authority of the grantor, we have shown, does not rest on any substantial proof. The full evidence refutes the contention: the plaintiff LeMehaute made no effort to expunge the record of the deed but rather went to the abstract office with every expectation to receive a recorded instrument. In all events, whatever the intimations of the testimony by the plaintiff, that he did not record the deed, there was no evidence that he did not intend the deed to be put of record. In such circumstances, the argument falls without force of proof. Rebmann v. Rebmann, 384 S.W.2d 663, 665[1, 2] (Mo.1964).

The case of Shroyer v. Shroyer, supra, where the court found lack of intention to deliver a deed, does not support the plaintiff. as he supposes. That warranty deed was not recorded and the grantor retained the deed but not also as a joint grantee. The factual distinctions between Shroyer and the ease at bench are numerous. The question of delivery rests distinctively on the aggregate of circumstances of the case. The plaintiffs LeMehaute have failed in their burden to rebut the prima facie proof that the grant to the defendant Renee was operative or otherwise to prove nondelivery of that deed. The judgment is against the weight of the evidence and is wrong. Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976).

The judgment is reversed and remanded with direction to enter judgment for the defendant.

All concur.

      . The trial court excluded from evidence, as a “legal conclusion,” this vital testimony from the cross-examination of the plaintiff LeMe-haute:
      Q. And you understood at the time you signed the deed, since Mr. Colley told you, Renee would have to sign papers in the future. That you, by signing the deed, were passing title — conveying title of the property to yourself and Ruth and Renee?
      A. Yes.
      The state of mind, as well as the words and acts, of the grantor bear relevantly on the issue of intent to deliver a deed. Chambers v. Chambers, supra, 127 S.W. 1. c. 91, 92[9]. Since delivery is a mixed question of fact and law [Shroyer v. Shroyer, supra, 425 S.W.2d 1. c. 219[2-7]], what the grantor understood — and so, intended — as the effect of his signature on the deed is also directly relevant on that issue despite the evidence may at once prove a fact and assume a legal proposition. The evidence was admissible, and though rejected by the trial court, was preserved and must be considered on appeal. Brewer v. Blanton, 555 S.W.2d 381, 385[6] (Mo.App.1977); Rule 73.-01(3).


author: DIXON, Presiding Judge.

text:
    BRANICK CONSTRUCTION COMPANY, INC., Respondent, Charles V. Scola and Linda Scola and W. R. McKee Lumber Company, Inc., Respondents, v. Jack TAYLOR and Frances E. Taylor, Appellants.
    No. KCD 29812.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Michael J. Drape, Kansas City, for appellants.
    Robert B. Best, Jr., Roy C. Bash, Kansas City (Watson, Ess, Marshall & Enggas, Kansas City, of counsel), for respondent W. R. McKee Lumber Company, Inc.
    John K. Weilert, Law Office of J. D. Williamson, Jr. Independence, for respondent Branick Construction Co., Inc.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

The Taylors, who were the record owners of real estate, appeal from a judgment asserting a special lien on their property in favor of lien claimants, Branick Construction Company, Inc., and W. R. McKee Lumber Co., Inc.

Taylors assert the liens must fail because the Branick lien statement is insufficient and, as to McKee, the lien suit failed to include Don Branick individually as a party.

The facts may be briefly stated. Jack Taylor and Frances E. Taylor were owners of a building at 501 Wyandotte. Linda and Charles Scola were tenants of the Taylors. Scolas were parties to the litigation but have not appealed the judgment rendered against them. Don Branick, for Branick Construction Company, Inc., entered into a written agreement with Scolas to do certain work in connection with the remodelling of the premises to accommodate a restaurant. Scolas were apparently acting as the general contractor since a great deal of other work besides that of Branick’s was undertaken. Branick entered into the agreement to provide supervision and lumber. The agreed price for supervision was $400 per week plus 10 percent of the total cost. “Total cost” was apparently a total of all of the various subcontracts and expenditures on the job.

In order to place the appeal in a posture for decision, some extended reference to the pleadings and the procedure in the trial court becomes necessary. W. R. McKee Lumber Company, Inc., filed its mechanic’s lien (properly itemized), complied with all statutory requirements as to notice, and filed suit in the Magistrate Court for the 5th District of Jackson County. Branick Construction Company, Inc., filed its mechanic’s lien based on the contract and then filed an equitable action to enforce the lien in the Circuit Court of Jackson County. Pursuant to Rule 101.14, McKee then pleaded its prior mechanic’s lien suit as a counterclaim and cross claim asserting its right to a special lien under the statute. Scolas were entirely in default, filing no pleadings. Taylors filed a joint and separate answer to the Branick Construction Company petition. The answer admitted the formal portions of the petition and asserted a lack of belief to admit or deny the substantive portions of the petition. The answer contained a stock assertion that the petition failed to state a cause of action. No pleadings were filed responsive to the McKee cross claim.

At the close of the evidence, Taylors orally moved to dismiss as to Branick on the ground that the statement of the account was defective.

The trial court entered a judgment against Scolas and in favor of Branick Construction Company, Inc., for $10,668.91, which represented the claim plus interest. A judgment was entered against Branick Construction Company, Inc., and in favor of W. R. McKee Lumber Company, Inc., for $3,618.32, the amount of the claimed bill for lumber plus interest. Both judgments were declared to be special liens against the Tay-lors’ real estate, where the improvements were made.

Taylors argue that the statement filed by Branick Construction Company, Inc., was defective to enforce the lien against Tay-lors’ property because it was not an “original” contract and, therefore, could not be a lien on the land. Cited are cases holding that subcontractors’ lien statements, not sufficiently itemized, are insufficient.

Taylors misconceive the thrust of the pleadings and evidence by Branick. Bran-ick’s theory and proof was that the Scolas were the parties to an original contract with Branick and that the improvements were made to the real estate with the knowledge and consent of Taylors — in fact, with their active participation. The Bran-ick Construction Company, Inc., was thus seeking to bring its cause of action against Taylors within the doctrine of Newport v. Hedges, 358 S.W.2d 441 (Mo.App.1962), and Utley v. Wear, 333 S.W.2d 787 (Mo.App. 1960). Those cases announce a doctrine of mechanic’s lien law that permits the imposition of the lien on the owner’s property, even though the tenant or lessee is the party with whom the contractor has dealt. The theory has been variously described as one of agency or estoppel and the cases are fully discussed in Note, Rights of a Mechanics’ Lienor in Missouri When the Improvements are Contracted for by the Lessee or Licensee of the Land, 1952 Wash.U.L.Q. 453.

As stated in Newport, supra, the liability of the owner’s property for a lien on account for improvements placed thereon by the tenants usually arises out of an “agency” implied in law. Utley, supra, points out that the agency is found when the lease requires the tenant to make substantial improvements and is also found when the premises are let for a specific use and purpose and the purpose cannot be accomplished except by the making of the improvements. In determining the question of whether an implied agency exists in a given case, the courts have been required to consider the whole circumstances of the letting. In the instant case, the Taylors offered no evidence and all the evidence was from Don Branick, the president of the Branick Construction Company. It is clear from his evidence that the premises were being remodelled for restaurant purposes which involved the gutting of the interior of the building, the relaying of new floors of light weight concrete, installation of partitions and restaurant equipment and fixtures. Mr. Taylor was in the restaurant fixture business to the extent that he sold booths for such installations. Both the Tay-lors were present on the construction site and actually supervised the installation of some of the items after the construction work had progressed to the point of installation of fixtures. They were likewise present during the extensive remodelling and made what amounted to superintending directions to the workmen as to the work to be accomplished. In those circumstances and upon the authority of Newport v. Hedges, supra, and Utley v. Wear, supra, there was sufficient evidence to imply an agency on the part of Scolas which would result in the lien applying to the ownership interest in the property. It is beyond question that Branick Construction Company statement addressed to the Scolas was sufficient as between the original parties to the contract. Vasquez v. Village Center, Inc., 362 S.W.2d 588, 593 (Mo.1962).

The only issue raised by Taylors with respect to the special lien in favor of McKee is that the statement of account attached to the McKee mechanic’s lien statement contained the name of Don Bran-ick instead of the Branick Construction Company, Inc., and that Don Branick individually should have been a party. All the evidence in the case was to the effect that Branick Construction Company, Inc., was the purchaser of the materials. Whatever merit that contention might have in a case in which it was properly preserved and raised, it is not a viable issue in this case. Although the Taylors appeared and participated by way of cross examination in the trial of this case, they were in total default — insofar as pleading was concerned— to the McKee cross claim. Taylors presented no evidence contrary to the assertions of McKee’s pleadings which were supported factually by the testimony of Don Branick. The Taylors have failed to preserve for appellate review the claimed error in the mechanic’s lien statement of W. R. McKee Lumber Company, Inc., the claimed error having been mentioned or raised in any fashion for the first time in the appellant’s brief in this court. Bunting v. McDonnell Aircraft Corporation, 522 S.W.2d 161 (Mo. banc 1975); South Side Plumbing Co. v. Tigges, 525 S.W.2d 583 (Mo.App.1975).

The instant case is no model of pleading and practice in mechanic’s lien cases. Had proper pleadings focused the issues and preserved them for review, questions which are implicit in the case might have required decision. This court, however, must decide the case on the record and issues presented. The judgment of the trial court is affirmed.

All concur.


author: MANFORD, Judge.

text:
    HANOVER INSURANCE COMPANY, Respondent, v. Douglas NEWCOMER and Samantha Locke, Appellants.
    No. 29813.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Joseph H. Moore, Kansas City, for appellants.
    Joseph B. Bott, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from declaratory judgment, concluding that policy afforded no coverage for actions of insured within the terms of the policy. Affirmed.

This case, having been tried to the court, is reviewed and disposed of pursuant to Rule 73.01.

Appellant Douglas B. Newcomer was a named insured under a homeowner’s policy issued by respondent.

On June 15, 1974, Newcomer and Samantha Locke went to an afternoon party. They returned to Miss Locke’s residence at approximately 5:30 p. m. At 7:00 p. m., Newcomer and Miss Locke attended another party until sometime between 11:30 p. m. and midnight. At both parties, Newcomer consumed alcoholic beverages. Either en route to and from the parties and/or while at these parties, he smoked more than one marijuana cigarette. He had lost the keys to his motor vehicle at the second party, so he and Miss Locke were driven to his residence by one Teddy Johnstone. Upon their arrival at his residence, Newcomer was screaming and shouting in a threatening manner toward Miss Locke and Mr. John-stone. His screaming and yelling included threats to kill Miss Locke and Mr. John-stone.

Newcomer was let out of the Johnstone vehicle at his residence. As Miss Locke and Mr. Johnstone drove away, Newcomer was standing in the middle of the street, screaming and shouting. Miss Locke and Mr. Johnstone drove around the block and returned to Newcomer’s residence. Miss Locke went inside.

Miss Locke testified upon entry to Newcomer’s residence, she observed Newcomer with a ceremonial machete hanging from his belt. Miss Locke further testified he attempted to secure a container of marijuana from a drawer and she attempted to get the container away from him. At this point, he threw Miss Locke against a wall and began throwing pool balls, which were on his pool table, all around the room. Again, Miss Locke attempted to stop him, this time being thrown to the floor. Miss Locke testified at this point she attempted to leave, and Newcomer began swinging the machete around the room. He approached Miss Locke, according to her testimony, a distance of approximately 12 feet while swinging the machete, striking her right leg in the groin area.

Newcomer testified he did not remember yelling or screaming, but did recall throwing the pool balls and swinging the machete. It was his testimony that he chopped the door jams in the living room, and that he struck the pool table with the machete. He also recalled striking Miss Locke with the machete, but contended the striking of Miss Locke’s leg was the continuation of a chopping action on the door frame.

Miss Locke was removed to the hospital by Teddy Johnstone, who upon entry into Newcomer’s residence, sprayed Newcomer with mace.

Miss Locke filed claims against Newcomer for damages. While these claims were pending, respondent filed this action herein, seeking to avoid coverage under the personal liability provision of its policy. Miss Locke then filed suit against Newcomer in four counts. That petition sought damages as follows: Count I — compensatory damages for intentional assault; Count II — punitive damages for intentional assault; Count III — compensatory damages for wanton and reckless conduct without presence of mind and Count IV — punitive damages for wanton and reckless conduct.

The policy of insurance which was admitted into evidence contained the liability coverage portion, as well as the exclusion referred to in respondent’s second amended petition. These portions of the policy read as follows:

“SECTION II
COVERAGES
COVERAGE E — PERSONAL LIABILITY
This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.” and the exclusionary clause:
“This policy does not apply:
1. Under Coverage E — Personal liability and Coverage F — Medical Payments to Others: . . .
f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.

Pending this appeal, Miss Locke dismissed Counts I, II and IV of her petition. Upon a later date, a stipulation of dismissal was filed regarding Count III of her petition.

On appeal, two points are raised. First, Newcomer contends the injuries he caused were the accidental results of his actions and the trial court erred in declaring that respondent’s policy did not cover Newcomer’s acts as there was no “occurrence” as defined in the policy. Secondly, the trial court erred in declaring respondent had no duty to defend Newcomer in the suit for damages brought by Miss Locke under Count III of her petition.

Both points are taken up and ruled against Newcomer. The evidence on the record speaks for itself.

The facts are undisputed relative to Newcomer’s having struck Miss Locke apparently while he was intoxicated and under the influence of marijuana. Newcomer’s sole contention is premised upon his state of mind at the time of the blow struck upon Miss Locke. He would have the court conclude that since he intended no resulting harm toward Miss Locke, his actions resulting in striking her with the machete were an accident and thus an “occurrence” within the definition of that term as contained within the insurance policy.

It is totally impossible for the court to know with certainty the exact mental attitude of Newcomer and must face the task of interpreting such attitude from the evidence.

The status of Newcomer, of course, sways between intentional conduct versus accidental conduct. If the former is supported by the evidence, then the trial court was absolutely correct. If the evidence supports the latter attitude, the insurer is responsible.

Cited for the court is Subscribers at Auto. Club, etc. v. Kennison, 549 S.W.2d 587 (Mo. App.1977), where at p. 590, the court declared, “Intended results are not only those results which are desired. If a person knows consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result, (citation omitted) Therefore, an admission of specific intent is not the only way to show intent to cause harm; it can be inferred from facts and circumstances surrounding an act . . . ” While Subscribers at Auto. Club, etc. v. Kennison, supra, is without doubt a sound logical declaration of the law, for our purposes herein, it does not go far enough. In Subscribers at Auto. Club, etc. v. Kennison, supra, the court was disposing of a dispute within the exclusion language of a policy which declared, “ ‘This policy does not apply under Part I: . . .to bodily injury or property damage caused intentionally by or at the direction of the assured.’ ”

That exclusion clause differs from the one before the court which declares said policy shall not apply “to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.”

Thus, we have a different breed of exclusion set forth herein and it appears our courts have never passed upon the interpretation of this particular wording. The case at hand lends itself to an interpretation of relatively new policy language.

Other jurisdictions have decided the question of expected or intended, and they are taken up for discussion. State Farm Fire & Casualty Company v. Muth, 190 Neb. 248, 272, 207 N.W.2d 364 (1973), involved a defendant who fired a BB gun from a moving vehicle. A pellet from the gun struck another person in the eye, causing the loss of sight. The injured plaintiff recovered in tort against the defendant. The insurer filed a declaratory judgment action on the exclusion portion of the policy. The court ruled against the insurer, declaring that since the insured (defendant in the tort action) did not specifically intend to harm anyone, the exclusion did not apply and the carrier was liable. Other cases following this same rule and cited in State Farm Fire & Casualty Company v. Muth, supra, include State Farm Mutual Auto Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir. 1968) and Lumbermens Mut. Ins. Co. v. Blackburn, 477 P.2d 62 (Okl.1970). These two cited cases, however, contained language found in the policy exclusion considered in Subscribers at Auto. Club, etc. v. Kennison, supra. Also cited in State Farm Fire & Casualty Company v. Muth, supra, were Rankin v. Farmers Elevator Mutual Insurance Co., 393 F.2d 718 (10th Cir. 1968) where the insured deliberately sideswiped a motorcycle, causing personal injury to the rider. The court, in that case, at 720, declared, “The serious injury of the rider of the motorcycle was a consequence of the deliberate collision and should have been expected and hence intended.” Contrasted cases cited include Peterson v. Western Casualty & Surety Co., 5 Wis.2d 535, 93 N.W.2d 433 (1958); and Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687 (1963), holding that the facts showed no specific intention on the part of the insured’s in harming anyone and hence, the exclusion did not apply.

In yet another decision, Farmers Automobile Insurance Association v. Medina, 29 Ill.App.3d 224, 329 N.E.2d 430 (1975), involving the ignition of a puddle of gasoline at the rear of a motor vehicle, the court held such act to be an intended act by the insured. The court concluded, at 432, “In several cases which have considered exclusionary clauses containing the term ‘expected’ in addition to the term ‘intended’ the courts have failed to find that the addition to the term ‘expected’ affected the outcome of the case.” A concurring opinion in this case did not equate “intended” and “expected” as synonymous and would apply them to different situations. To state in another way, the concurring opinion stated, at 436, “. . . a different degree of proof is necessary for each ... a greater degree of proof being required to establish intent than to establish expectation.”

If this concurring opinion were adopted, it would introduce the concept of foreseeability from a finding that an injury was one which could be expected. The net effect would be to inject or implant an intent to cause harm into exclusionary clauses involving the terms expected or intended. The foreseeability would then continue to be an element of ordinary negligence without the concurring requirement of an intentional act, whether expressed specifically or inferred from the nature or character of the act. This concurring opinion is not adopted herein.

As regards coverage questions, “Foreseeability is irrelevant to the coverage issue.” Hartford Fire Ins. Co. v. Spreen, 343 So.2d 649, 651 (Fla. 3rd DCA 1977). That case denied coverage to the insured where he deliberately struck another person in the face, causing an eye injury. For a case where the result claimed was not to have been foreseen by the insured, see Butler v. Behaeghe, 37 Colo.App. 282, 548 P.2d 934 (1976). The homeowner insured was denied coverage when he caused impairment of the sight of another when he swung a pipe at him. The court, in that case, stated, at 938, “Where coverage is excluded if bodily injury is ‘intended or expected’ by the insured, such exclusion is inapplicable if and only if the insured acts without any intent or any expectation of causing any injury, however slight. And conversely, such exclusion is applicable if the insured acts with the intent or expectation that bodily injury will result even though the bodily injury that does result is different either in character or magnitude from the injury that was intended.”

That the act of an insured need not be expressly intentional, but can be inferred, see Continental Western Ins. Co. v. Toal, 309 Minn. 169, 177, 244 N.W.2d 121, 125 (1976), wherein the court declared, “an injury is ‘expected or intended’ from the standpoint of the insured if a reason for an insured’s act is to inflict bodily injury or ‘when the character of the act is such that an intention to inflict an injury can be inferred’ as a matter of law.” See also Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885 (Minn.1978).

The evidence herein established that appellant Newcomer advanced on Miss Locke, wildly swinging the machete. That the evidence established he was under the influence of intoxicants and marijuana is of no consequence, for the law must not permit the use of such stimuli to become a defense for one’s actions.

The rules cited in State Farm Fire & Casualty Company v. Muth, supra, Continental Western Ins. v. Toal, supra and Butler v. Behaeghe, supra, are adopted herein and when applied to the facts of this case, the trial court, although faced with conflicting testimony, did and properly could conclude that the act of appellant Newcomer, in swinging the machete, was an intentional act from which an injury could be expected. Hence, by virtue of the application of those rules, the court properly concluded that the resulting injury to Miss Locke was not an occurrence within the insuring clause of the policy because of the application of the exclusionary clause.

The trial court heard the evidence, which was substantial. The judgment was not against the weight of the evidence and the judgment did not erroneously declare or erroneously apply the law, thus satisfying the rule in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The judgment of the trial court, for the reasons set forth herein, in all respects is affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    Weldon J. ZOELLNER and Alice Davidson, Plaintiffs-Appellants, v. H. M. CARTY and Louella M. Carty, Defendants-Respondents.
    No. KCD 29865.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Rollin J. Moerschel, Niedner, Moerschel, Ahlheim & Bodeux, St. Charles, for plaintiffs-appellants.
    R. E. Moulthrop, Jr., Bethany, for defendants-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

This is an action in equity wherein the appellants (buyers) brought suit against the respondents (sellers) for specific performance of a real estate sales contract involving approximately 800 acres of farmland in Grundy County, Missouri. After the evidence was heard by the court below, a decree was entered wherein the trial court, sitting as a chancellor in equity, found that the real estate contract was a valid and binding contract but denied relief for the reasons of the advanced age of the seller, H. M. Carty, the lack of business experience of his wife, Louella Carty, and the fact that under the terms of the contract the possibility of completion thereof was extended for 20 years with payments thereunder contingent upon future events and prices. The court found that by reason of these facts the contract was unreasonable and unfair, declined relief, and left the buyers to their remedy at law for breach of contract and damages, if any. ■ This appeal followed.

The appellants-buyers raise a single point on this appeal. They assert that the trial court erred “in Denying Specific Performance of the Real Estate Sale Contract on the Grounds Said Contract is Unreasonable and Not Fair to Sellers”. This point is not in compliance with the requirements of Rule 84.04(d), but since respondents raise no objection upon that basis, it will be considered as placing in issue on this appeal the sufficiency of the evidence to support the decree.

A review of this type of equity action, under this presentation, would seem to throw open the floodgates to a broad and limitless scope of scrutiny by this Court. However, such is not the case since that review is closely limited and defined by binding decisional case law and generally accepted text law in Missouri.

The law is clear that a decree of specific performance is not a matter of right even to enforce the terms of a legal and binding contract. Rather, it is a matter of grace resting upon basic equities and residing within the sound discretion of the chancellor, depending in the last analysis, upon the facts of each particular case. Cossairt v. Reich, 370 S.W.2d 291, 295[3] (Mo.1963); Miller v. Coffeen, 365 Mo. 204, 280 S.W.2d 100, 102-103[3-6] (Banc 1955); Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 259[8-12] (Banc 1954).

The authorities have further delineated criteria for the exercise of the court’s discretion in this class of case. Such may be properly exercised where the contract is induced by some sharp practice or where it is “unfair, overreaching or biting”, or where there are present elements of covetous contrivance or imposition. Cossairt v. Reich, supra, at 1.c. 295[4]; Likens v. Sourk, 263 S.W.2d 462, 465[4] (Mo.App.1953); Ensign v. Home for the Jewish Aged, 274 S.W.2d 502, 508[7] (Mo.App.1955).

This general rule is stated in 81 C.J.S. Specific Performance § 20a, pp. 737-739:

“Specific performance of a contract is never decreed when its enforcement would be inequitable or unconscionable, or produce injustice or hardship or where the specific performance of the contract would operate oppressively as to either party, even though there is no sufficient ground for rescission or cancellation.”

In Likens v. Sourk, supra, at l.c. 465[5-6], the court said:

“ * * * The criterion by which a contract is judged, as to ordering its specific performance, is not whether a court would be justified in its rescission, or in refusing other forms of relief, but whether it would be inequitable to enforce the contract. * * * ”

Upon review of the trial chancellor’s decree in this equity proceeding, traditionally due deference must be given to the trial court’s opportunity to see and hear the witnesses and to judge their credibility and to reconcile conflicts in the testimony. Rule 73.01(3)(a), (b).

Since the decision in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) the scope of review in such cases has been even further limited. In that case, Rule 73.01 was declared to mean that the judgment in court-tried cases should not be set aside on review (even in cases on the law side which the Rule stated “shall be reviewed upon both the law and the evidence as in suits of an equitable nature”) unless, a) there is no substantial evidence to support it; b) it is against the weight of the evidence; c) unless it erroneously declares the law, or, unless it erroneously applies the law. The power to set aside a judgment on the ground that it is “ ‘against the weight of the evidence’ ”, Murphy further declares, should be exercised with caution and with a firm belief that the decree or judgment is wrong, and that the use of the traditional words “de novo” and “clearly erroneous” is no longer appropriate in review of a court-tried case. Murphy v. Carrón, supra, at l.c. 32[1 — 3].

In the light of these principles the record has been carefully reviewed and it discloses that the following facts are supported by competent and substantial evidence:

At the time of the events here involved the respondents were husband and wife and were the owners and operators of a farm in Grundy County, Missouri consisting of approximately 1163 acres. H. M. Carty was 75 years of age and so hard of hearing as to be virtually deaf. His wife, Louella, was 55 years of age and was a farm housewife with no business training or experience. The Cartys in 1976 were interested in selling that part of their farm described as lying east of a public road that divided their farm, which contained approximately 800 acres of land. The crop farming on this part of the farm was done by a tenant on 50% shares and the testimony established that the share realized by the Cartys on the 800 acre tract (of which approximately 600 acres was in crops) for the year 1975 was $29,233.96 and for the year 1976 was $24,-062.13. The crops raised were corn and soybeans. At the time of the negotiations here involved there was a first mortgage-deed of trust on the entire Carty farm held by the Phoenix Mutual Insurance Company of Iowa with an unpaid principal balance of $139,000.00. The primary reason that the Cartys wished to sell the 800-acre tract was to convert their equity therein to an interest bearing note secured by a first deed of trust on the land, as income.

Mr. A. R. Hammett was engaged in the real estate, and insurance business, lived on a farm east of Trenton, and had been a friend of the Cartys for a number of years. He learned of the Cartys desire to sell the 800-acre tract and communicated this fact to his daughter, Alice Davidson, one of the appellants herein, who lived in St. Louis County and was an independent real estate broker in the office of Zoellner. She, in turn, communicated this fact to Weldon J. Zoellner, the other appellant, who was also a resident of St. Louis County and was engaged in the real estate business. Zoell-ner had apparently previously made inquiry of Mrs. Davidson if she knew of any farm property for sale.

As a result of these contacts, Zoellner, Davidson, Hammett and the Cartys met at Trenton, Missouri on June 2, 1976. At this meeting, Carty took the others to view the farm and placed a price on it of $600,000.00. A general discussion was had with particular emphasis on the tax consequences of such a sale, but no definite agreement or contract was reached. The Cartys were to confer with their tax accountant, which apparently they did, and thereafter, a meeting was arranged for Chillicothe, Missouri between the parties, Hammett and the tax accountant for June 16, 1976.

On that date the parties met at a bank in Chillicothe and Carty advised them that he was not satisfied with his accountant’s advice and did not want him to participate in the conference. Hammett, thereupon, went to the accountant’s office, so advised him, and paid his charges. The group thereupon adjourned to the hotel and Zoellner presented to the Cartys a written contract. Some revisions were agreed upon, which Mrs. Davidson wrote into the contract and it was signed. However, this contract was later destroyed. It is not the contract here sought to be enforced by specific performance and a copy of it is not a part of this record, so its exact terms do not appear.

On July 13, 1976, Zoellner and Davidson and their spouses and Hammett went to the Cartys home and the contract here involved was executed. It is worthy to note that although executed on July 13, 1976, it is dated June 16,1976, and it was notarized in St. Louis County on July 13,1976. On July 22,1976, Hammett called his daughter, Mrs. Davidson, and advised her that the Cartys no longer wanted to go through with the deal. On August 2, 1976, Mrs. Davidson caused the contract to be recorded on the land records in Grundy County. According to the contract, the sale was to be closed on November 1, 1976 and the appellants and their spouses and Hammett, after waiting most of the day for the Cartys at the abstract company at Trenton, Missouri, were advised by the Cartys late that afternoon at that company’s office that they would not execute the closing papers. This suit was filed November 8, 1976. At no time during all of these meetings and negotiations were the Cartys represented by legal counsel.

The contract here sought to be enforced by specific performance provided for a sales price of $570,000.00. The parties agreed that the value of the property was $600,-000.00 but since Zoellner and Davidson agreed to pay Hammett his commission of $30,000.00 the contract price was fixed at $570,000.00.

Subject to the appellants-buyers’ ability to secure a loan of $300,000.00 at 9¾% interest, the contract provided that they were to pay the existing loan balance, an encumbrance on the whole Carty farm of $139,-000.00 (a figure employed in both briefs and in most of the testimony); to give their note secured by a second deed of trust on the 800-acre parcel at 8% interest in the amount of $400,000.00; and, to pay the Car-tys $31,000.00 in cash on January 5, 1977 toward the purchase price. The evidence showed that the appellants-buyers had in fact secured such a commitment from Phoenix Mutual (the holder of the old loan) and its farm loan manager testified that his company was ready to dose this whole loan transaction on November 1, 1976. Such loan arrangement would leave a balance of $130,000.00 in cash from the proceeds of the new loan for Zoellner-Davidson or $100,-000.00 if Hammett’s commission was to be paid from such funds. Their only out-of-pocket expense was a $100.00 “earnest money” deposit placed in escrow with Hammett when the contract was signed, which he still held in escrow at the time of trial approximately a year later.

The contract provided that the income from the purchasers’ share of the farm crops “in the year received shall be the sole source of the retirement of all debts" and was to be allocated and dispersed in the following order: 1) principal and interest on the $300,000.00 first mortgage held by Phoenix Mutual; 2) real estate taxes; 3) seed, fertilizer and chemicals for the following year’s crops; 4) interest payment on the $400,000.00 second mortgage owned by the Cartys; 5) 50% of any remainder to go toward the principal of the second mortgage, and, 50% thereof to be retained by the owners of record; and 6) if the income was not sufficient to pay interest on the balance of the second mortgage the deficit was to be added to the principal.

The contract gave the Cartys the right after five years to call for payment in full “provided loan is obtainable by Purchaser at market rate”. The promissory note for $400,000.00 prepared for the closing of the deal provided that the unpaid balance thereof was absolutely due on October 31, 1996, 20 years after its date.

The evidence disclosed that the appellants intended to operate the farm on a share crop basis with the tenant who was then working with the Cartys, so that they would realize one-half of the profit from the crops each year. There was positive testimony that upon this basis of operation the Carty share in 1975 was $29,233.96 and in 1976 was $24,062.13, which testimony was obviously accepted by the trial chancellor. The appellants offered the calculations of Mrs. Davidson that the crop yield from the corn and soybeans should produce net to the owners in the neighborhood of $50,000.00 to $60,000.00. All such figures were, of course, based upon many factors of speculative nature such as efficiency of operation, growing conditions, yields and market prices in any given year. The only solid evidence as to net income from the farm to the owners were the figures for 1975 and 1976. Such returns would be insufficient to pay even the interest on the $300,000.00 first mortgage proposed under the contract herein at 9¾% let alone whatever yearly principal payments were provided for on the Phoenix Mutual note. In addition, there was uncontradicted evidence that the real estate taxes were approximately $2200.00 per year and the cost of seed, fertilizer and chemicals ran from approximately $12,000.00 to $15,000.00 per year. Since the interest on the second mortgage of $400,000.00 at 8% would amount to $32,-000.00 per year, it is obvious that even under the most optimistic view there was no possibility that these obligations could be paid and the encumbrance liquidated from the net proceeds for the owners’ share of the crop income from the farm. Such a situation would leave the Cartys with a second deed of trust on property burdened by $700,000.00 in mortgages and with no reasonable or foreseeable opportunity to realize anything from their equity or their note, either principal or interest, for at least five years and more likely 20 years. After five years, if their note was not previously paid, their only recourse would be to put into the property a very substantial additional sum to retire the Phoenix Mutual obligation and then foreclose their second deed of trust subject to the first loan. Obviously, this situation would defeat the Car-tys clearly stated purpose, to turn their equity in the farm into an income-producing secured note. It needs no emphasis that in 5 years H. M. Carty will be 80 years of age and Louella Carty 60 years young. In 20 years, H. M. Carty, if living, would be 95 and Louella 75 years old. No doubt can exist that this contract, as drawn, read in the light of this record here and all sur-' rounding circumstances is unfair, unreasonable, overriding and biting, Likens v. Sourk, supra; is likely to produce hardship and result in gross injustice, 81 C.J.S. Specific Performance, supra; and would operate oppressively as to the Cartys. In such a situation, the trial court, sitting as a chancellor in equity, properly declined the equitable relief of specific performance and no abuse of discretion appears. There was substantial evidence to support the decree, the decree was not against the weight of the evidence, and the decree did not erroneously declare or apply the law. This Court has the firm belief that the decree was proper. Murphy v. Carrón, supra.

The judgment and decree is accordingly affirmed.

All concur.