text:
    Wilma Lee BRASSFIELD, Johnnie W. Allwood, Jr., and James K. Allwood, Appellants, v. Alice A. ALLWOOD, Respondent.
    No. KCD 28728.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      Michael L. Midyett, Keytesville, for appellants.
    A. V. McCalley, Richmond, for respondent.
    Before SHANGLER, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

The appellants Wilma Lee, Johnnie, Jr. and James are children of Johnnie W. All-wood, Sr. now deceased. The father divorced their mother and married Alice Allwood before he died. The property settlement agreement incident to the divorce set over all of the real estate of the marriage to the father. After remarriage the father conveyed this land by deed to himself and Alice Allwood as tenants by the entireties. The father died on August 29, 1973. Thereafter, the children claimed the land as their inheritance as sole heirs of the father.

The children brought their petition against Alice Allwood in two counts. The first count sought to set aside the deed to her on the ground of undue influence and fraud. The second count was for the specific performance of an oral contract alleged between the children and the father to convey the land to them on performance of services to him. The case was tried to the court and at the close of the case for plaintiff, the court dismissed both counts of the petition. This appeal comes only from the dismissal of the count for specific performance.

The testimony of the mother on the formation of the oral contract between the father and children was received, but the two sons were not permitted to relate conversations with the father that the property was to be disposed to the children for their work on the farm, on the objection that § 491.010 RSMo 1969 [Dead Man’s Statute] foreclosed such testimony. The court also excluded as immaterial other evidence by the mother and children that thereafter the father periodically reaffirmed that intention of disposition. The appellants [children, Wilma, Johnnie, Jr. and James] contend that the Dead Man’s Statute was not properly invoked by specific objection and that, in any event, operation of the statute was waived by failure to object to the testimony of Wilma concerning the formation of the contract. The respondent argues that the evidence by Wilma was so vague that there was no basis for objection under the statute, and hence there was no waiver of her incompetency on the issue of oral contract.

We do not undertake to assess each contention of improper exclusion of evidence, either by the operation of the Dead Man’s Statute or principles of materiality. Much of the evidence excluded by the trial court appears through sufficient offers of proof. To that extent, the appellants have given us a record and engaged our review. Conser v. Atchison T. & S.F. Ry. Co., 266 S.W.2d 587, 592[14,16] (Mo.1954); Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 795[1—3] (Mo.1959). Our review compels concurrence with the determination of the trial court that the proof, made and proffered by appellant children, does not meet the standard equity exacts for recovery on such a cause of action.

The first point of appellants concerns proceedings at the outset of trial. Counsel for appellants [plaintiffs] asked leave to amend Count II for specific performance to include the mother as a party to the oral contract to convey the realty to the children. The respondent objected on the ground the amendment, which could have been done during the more than two years the suit pended, would change the defense and prejudice the defendant. The court sustained the objection and this action is attacked as an abuse of discretion. The appellants cite Rule 55.33(a) to the effect that leave to amend shall be freely given when justice requires, and cases which iterate that general principle of procedure. The function of Rule 55.33(a) is to enable a party to present matters overlooked or unknown at the time the original pleadings were filed. DeArmon v. City of St. Louis, 525 S.W.2d 795, 802[18] (Mo.App.1975). But it may not be used as a stratagem for advantage. 6 Wright and Miller, Federal Practice and Procedure, §§ 1473 and 1485, pp. 375 and 422 (1971).

The amendment requested here was of a fact known by counsel from the beginning of the litigation — that is, the identity of the parties to the oral contract. As our further discussion of points more fully discloses, a suit for the specific performance of an oral contract to convey land is a species of petition which equity examines with utmost care to protect against fraud and perjury. Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028[1] (1912). These strictures require that the oral contract be clear, explicit and definite, and proven as pleaded. Bildner v. Giacoma, 522 S.W.2d 83, 87[3-7] (Mo.App.1975). It is clear then that a defendant who prepares to meet the strict proof required by such a pleading is disadvantaged by the addition of a party which, in effect, changes the cause of action at the threshold of trial. It is evident, in any event, that the refusal to allow amendment of the petition did not prejudice the plaintiffs. At pre-trial, counsel for the plaintiffs conceded the amendment was unnecessary to their theory, and at the trial there was no attempt to prove the mother was party to the contract to convey. We conclude the denial of amendment was not an abuse of discretion. Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553, 561[4] (Mo.App.1976).

The question remains whether the evidence sufficiently proves an oral contract to convey which equity will specifically enforce. The appeal is from a final determination on issues tried to the court, therefore our review comes under Rule 73.-01(3). The judgment was entered on the motion of defendant for a directed verdict after plaintiffs completed their evidence in the manner customary in jury cases. Rule 72.01. Such a procedure, however, is anomalous in an equity case and the effect of the motion was merely to submit the issues for decision upon the merits. Rule 67.02; Moser v. Williams, 443 S.W.2d 212, 215[1-2] (Mo.App.1969). In the determination of such a submission, the trial court weighs the evidence and resolves conflicts of proof and credibility. Lee v. Smith, 484 S.W.2d 38, 42[3] (Mo.App.1972). Our review from such a decision, therefore, is compassed by the principle of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) that we affirm the decree of the trial court which rests on substantial evidence and is otherwise agreeable to law.

The plaintiffs pleaded an oral contract with the father whereby he promised: “[I]f they [the children] would render assistance to him in his farming operation and with his household duties and did all things to be done and performed by them with respect to assisting him, that in consideration for such assistance plaintiffs would receive the real property above described.” No date is pleaded for the formation of the contract, nor does the pleading declare precisely how much acreage was encompassed by the offer. Allwood, Sr. and wife Madeline had amassed 800 acres by the time of the divorce, all of which were set over to him by the terms of their separation agreement, and all of which were thereafter conveyed by Allwood, Sr. to himself and second wife Alice as tenants by the entireties.

The evidence of the plaintiffs — both as received and as offered in proof — discloses:

According to the testimony of Madeline, one Sunday during the year 1954, a time when her marriage to Allwood, Sr. still subsisted, the family was gathered around the dinner table. The parents were about to purchase 152 acres, their first acquisition of land, and the father asked the children what they thought about the undertaking since: “[Y]ou’re going to have to work to pay for it . . .it will be yours when your Mother and I retire or when we’re gone.” To which the children responded: “Go ahead and we’ll help to work and pay for it; go ahead and buy it.” Madeline testified also that this offer by her husband was repeated “periodically at numerous times”. The children thereafter worked on the farm in addition to the regular household chores.

Wilma began her farm work when she was about eleven in the year 1946, and left home in 1953 when she married. The next year Wilma and her husband returned to the farm to help the parents, and they were both present on that Sunday in 1954 when the oral promise of the father was made. Wilma and her husband worked on the farm for three years thereafter for $150 per month and a share of the profits. According to Wilma, the profits were never paid but were used, rather, to purchase more property for eventual ownership by the children — “if [they] would all work hard”. Wilma was not asked about the 1954 dinner-table oral promise by the father. It was her testimony that sometime in year 1947, when she was only eleven, her father told her that “if [she] would start to work more and help in the fields more, that [they] would be able to have real estate for [her] brothers and [her]self”. It was upon that promise that she commenced to work in the fields with the hired hands. The father at numerous times thereafter reaffirmed that he intended to dispose the property to the children, and it was on that expectation that she later relinquished her application to become an airline stewardess.

Johnnie Jr. commenced to work in the fields in 1951 when he was about ten years of age. According to his testimony, he was present at the Sunday dinner-table in 1954 and in consequence, he did all that his father asked him to do on the farm. Then in 1959 he enlisted in the Air Force but returned to the farm in 1962 because his father was ill, and remained until 1964. He was paid for the work he performed for his father during this period. He offered to prove that on many occasions his father reaffirmed that for his work, the land would be given to him, his brother and sister.

James was the youngest child and as soon as he was old enough to work in the fields, he did. He was only nine years of age in 1954 and did not recall the family conference. He took over management of the family farm during the time his father was incapacitated by illness because by that time Wilma and Johnnie, Jr. had left the home. In year 1963 he enrolled at the university, married, and never returned to the home except to visit. His testimony was offered to prove conversations with his father to the effect that if James worked on the family farm and did all that the father requested of him, “the farm and all of the property that was owned by [the] father” would be conveyed to the children or left to them upon his death.

The evidence did not dispute that while the children lived on the farm as members of the household — before emancipation by marriage or military service — the parents provided their necessaries.

The evidence shows also that the final acquisition of farm land by the Allwood parents was only months before their marriage ended by court decree. In contemplation of dissolution, the parties entered into a separation agreement which set over to a third party all the real estate owned by them for conveyance to the husband in consideration of payment to the wife of $35,-000. The terms of the agreement were performed at the death of the husband.

An oral contract to convey land falls within the literal ambit of the statute of frauds and so will not be enforced at law. Jones v. Linder, 247 S.W.2d 817, 819[3] (Mo.1952); § 453.010 RSMo 1969. Equity will decree specific performance, however, where a party has so far acted on the promise that to deny him the benefit of the agreement would be unjust. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447, 456[10] (1941). This resort to equity avails sparingly, and only upon clear and convincing proof of a definite agreement supported by an adequate consideration. Watkins v. Watkins, 397 S.W.2d 603, 609[2, 3] (Mo.1965); Treon v. Coffelt, 334 S.W.2d 94, 101[1, 2] (Mo.1960). The elements of proof required by equity for the specific performance of an oral contract to convey real estate were prescribed in Walker v. Bohannan, supra, l.c. 1028[1] and have been uniformly followed since:

(1) The alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair, and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made, and that the full performance, so as far as lies in the hands of the parties to perform, has been had; (6) and the work constituting performance must be such as is referable solely to the contract sought to be enforced and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity» (8) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed made before the acts of performance relied upon were had.

The respondent here contends that the oral contract alleged between the father and the children was deficient in each of the eight aspects of proof. The appellants argue the cumulative effect of their evidence of farm work in reliance on the promise to convey, and cite three cases without discussion. Tuckwiller v. Tuckwiller, 413 S.W.2d 274 (Mo.1967) concerned a written contract and does not apply here. Jennings v. Achuff, 272 S.W.2d 263 (Mo.1954) and Watkins v. Watkins, supra, each enforced specific performance of an oral contract to convey land, but only after the court found that the eight canons of Walker v. Bohannan, supra, had been met.

We believe that on the facts in evidence Walker v. Bohannan, supra, and Bildner v. Giacoma, supra, are nearer precedents. Walker sought to enforce an oral contract whereby the plaintiffs and their father agreed to move onto the farm of decedent, then blind, and in exchange for all his property take care of decedent until his death. The court affirmed denial of specific performance because two prerequisite proofs had not been made: (1) the contract pleaded was not proven and (2) performance by plaintiffs was not solely referable to the oral contract alleged. As to the first ground, the evidence was that the decedent promised only to give plaintiffs his farm, not all of his property as in the contract pleaded. Thus, the evidence did not establish the contract as pleaded. As to performance, the evidence was that the father of plaintiffs had a separate contract with decedent by which he was to have the use of the farm for which he was to pay decedent and board him. The court found that every act by the plaintiffs was reasonably referable to the separate contract with the father as to the alleged oral contract. So, also, in Bildner, the court found that the contract pleaded was not the contract proved and denied enforcement.

While it is not necessary to definiteness that the oral contract be detailed [Smith v. Lore, 325 Mo. 282, 29 S.W.2d 91, 95[1] (1930)], there must be proof by clear and convincing evidence of an explicit agreement capable of specific performance. Watkins v. Watkins, supra, l.c. 609[2, 3]. The petition pleaded that the father promised the described real estate [800 acres ] to the children in consideration of their assistance in the operation of the farm and household. However, the evidence proved, not the single and definite promise pleaded, but a series of disparate and casual horta-tions. The basic oral agreement, according to then wife Madeline, was the promise of the father around the family table in 1954 to dispose to the children the 152 acres about to be purchased on the reciprocal promise of the children that they would work to help pay for the land.

The daughter Wilma recalls the promise, but she was then married and whatever work she and her husband did on the farm was under an agreement for payment, and not inheritance. They were promised a monthly sum and a share of the profits. She testified the profits were never paid but were used by the father to purchase more property for eventual ownership by the children if they worked hard. Thus her claim reduces to the promise that she would inherit land in lieu of a share of the profits. There was no testimony how much profit accumulated, if indeed any at all, nor how much of her undistributed earnings went to purchase more land. That is to say, she failed to prove consideration for the oral promise to convey, and thus failed as to element seven required by Walker v. Bohannan, supra, for such a cause of action. Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722, 730 (1910). This claim of a 1954 contract becomes even more murky by her testimony that sometime in year 1947, when she was only eleven, her father had told her that if she helped more, the parents would be able to acquire real estate for the children — and that it was upon that promise that she commenced to work in the fields.

Johnnie, Jr. was also at the 1954 family table, but his testimony does not disclose what he understood by the promise made by the father — except that as a consequence he did all his father bid him to do on the farm. He left the home in 1959 for the Air Force and on his return was paid for his domestic work for as long as he remained on the farm.

James did not recall the 1954 family conference and made no claim that his work on the farm was in pursuance of an oral promise made then by the father. His testimony was offered to prove that for his work on the family farm, the farm and all of the property that was owned by the father would belong to the children. Thus, his testimony proved a promise not as pleaded, but enlarged to encompass all the father owned and not merely the land acreage.

The difficulty of decision for the trial court, and now on review, begins from an uncertainty as to which of the numerous conversations the plaintiffs intend to plead as their basis of recovery. If the pleading means to describe the 1954 episode, then the testimony of Madeline that the 152 acres were promised [instead of the 800 acres pleaded], proves a different contract — and the testimony of daughter Wilma that she performed in consequence of a 1947 promise also refers to a different contract — and the testimony of the boys that they performed in response to the recurrent exhortations of the father, unspecified as to time and place and contradictory as to the promised reward — also proves a different contract. If, on the other hand, the periodic promises by the father to the children can be taken as something more than loose and casual talk, they show merely a series of unilateral offers to the children individually, and not the single promise on the terms pleaded.

This laxness between pleading and proof fails the requirements of Walker v. Bohan-nan, supra, that the allegation of oral contract be clear, explicit and definite and that the contract be proven as pleaded. Bildner v. Giacoma, supra, l.c. 89[11]; Higgins v. Rachford, 307 S.W.2d 411, 419[4] (Mo.1957). The judgment of the trial court that plaintiffs are not entitled to equity is supported by substantial evidence and the applicable principles of law.

Other considerations of equity also require denial of specific performance: enforcement would be unconscionable and lack of adequate consideration for the promise of conveyance. [Elements of proof 4 and 7, Walker v. Bohannan, supra.]

The evidence shows without dispute that the boys lived together with the parents as one household at the time of the alleged promise of 1954 was made. The daughter Wilma lived with them in that relationship in 1947 when that alleged promise was made. The parents furnished them necessaries, and the children worked domestically. They lived together in a family relationship: that is, as a collective body under one domestic government and head, each with the reciprocal, natural and moral duty to support and care for each other. Jaycox v. Brune, 434 S.W.2d 539, 544[11-14] (Mo.1968). A family relationship gives rise to the presumption that services were rendered gratuitously, even though a member may entertain a hope of payment. Thus the law implies no promise to pay for services rendered to the common family purpose. Vosburg v. Smith, 272 S.W.2d 297, 301[1-6] (Mo.App.1954). This presumption of gratuity extends to extraordinary as well as usual services [Trantham v. Gullic, 201 S.W.2d 522, 530[9, 10] (Mo.App.1947); 98 C.J.S. Work & Labor, § 16d] and is overcome only by clear and convincing evidence of an agreement for payment. Vosburg v. Smith, supra, l.c. 301[1 — 6]; Jaycox v. Brune, supra, l.c. 542[1, 2].

The evidence is clear that the boys and Wilma began to work on the farm and household from as early as they could remember. They drove tractors, milked and did all the chores directed by their parents. The proof allows no doubt that the Allwood family purpose was the farm operation. Nor is there doubt that the work they did after the alleged promises was precisely the same as before. The judgment of the trial court imports determination that the plaintiffs failed to show by clear and convincing evidence their services were intended other than gratuitously. This means there was no consideration for the alleged oral promise[s] to convey and their claim in equity fails on that ground also.

It may be that daughter Wilma has the proof to show the amount of profits under the contract for hire with her father, but withheld by him to purchase land. Even so, equity will not decree specific performance when the service rendered can easily be recompensed in money. It would be unconscionable to enforce the conveyance to her of an undivided one-third estate in eight hundred acres of farmland when the remedy at law for the value of those brief services is available and entirely adequate. Selle v. Selle, 337 Mo. 1234, 88 S.W.2d 877, 882[6-10] (1935).

The judgment is affirmed.

All concur.

      . Two instances of evidential exclusion were not preserved by offers of proof, and so are not for our review: (1) The attempt to elicit from Johnnie, Jr. when he commenced to work on the farm [refused as immaterial] and (2) the inquiry of Johnnie, Jr. as to whether he heard the testimony of his mother concerning the family meeting in 1954 — presumably when the oral contract was formed [refused on general objection]. Another exclusion of evidence, deemed by the court immaterial, was preserved by offer of proof, but is so clearly without force on the issue of the specific enforcement, that we consider the objection properly ruled. The question sought to elicit from James that his father told him hospital personnel had recommended that he seek psychiatric help. This evidence may have been admissible on the undue influence count [dismissed and not appealed] but has no bearing on the issue of formation of the contract some thirteen years earlier.


source: Caselaw Access Project

author: PRITCHARD, Judge.

license: Public Domain

text:
    Benjamin MAIRS, Jr., and Sarah Ann Suetter, Appellants, v. Stillman KNIFONG, Respondent.
    No. KCD 28740.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      C. B. Burns, Jr., Brookfield, for appellants.
    Robert DeVoy, Brookfield, for respondent.
    Before SWOFFORD, P. J., and PRITCH-ARD and DIXON, JJ.
   PRITCHARD, Judge.

Respondent was successful in defending a quiet title suit upon the theory, as found by the trial court, that appellants were es-topped to deny respondent’s title after having received benefits from the sale of the real estate in an estate of their ancestor, and that appellants were bound by the es-toppel of their ancestors. Appellants claimed the title to a one-half interest in this real estate, located in Linn County, Missouri:

The North 55 acres of the west half of the Southeast Quarter, and the North 15 acres of the Southeast Quarter of the Southeast Quarter, of Section 21; the Southwest Quarter of the Northwest Quarter, the Northwest Quarter of the Southwest Quarter, and the North 15 acres of the Southwest Quarter of the Southwest Quarter of Section 22, all in Township 60 of Range 20.

The issues are whether, under the facts and the law, the trial court erred in holding appellants were estopped, and alternatively, as urged by respondent, whether he acquired title to the land by adverse possession.

The common source of title to the above described property (165 acres) was James A. Mairs and Emma L. Curtis, who acquired the property as tenants in common in 1909. On January 24,1929, Emma gave a deed of trust on her undivided one-half interest in the property which was foreclosed on April 8, 1932, and by trustees deed therein, one Chester Bagley acquired her title. On December 12, 1932, Bagley and wife conveyed the one-half interest to Sarah A. Mairs.

James A. Mairs died in 1922, and by his will left a life estate in his real estate to his wife, Sarah A. Mairs, with remainder in equal parts to his son, Benjamin Mairs, and to his granddaughter, Frances S. Harrington, or to the survivor of them, in trust to Benjamin until he reached age 25, and as to Frances until she should marry “and have a child which shall arrive at the age of three years.” If Benjamin was to die without issue before he attained age 25, his interest was to go to Frances, subject to her marriage and having a child who attained three years of age. In the event of the deaths of both Benjamin and Frances without issue, the property was to go to the heirs of James’ brother, Joseph W. Mairs. James’ will provided that the probate court appoint a trustee for Benjamin and Frances, but the record here fails to show an appointment of a trustee by any court under the will, even after the termination of Sarah’s life estate. James’ will did not grant a power of sale of the trust property.

Sarah A. Mairs died in 1934. By her 1933 will, she gave all of her estate to R. C. Mullins as trustee for the income benefit of her son, Ben A. Mairs, and her granddaughter, Frances Harrington Smith, for their lifetimes, or to the survivor for life. By Article Fourth of the will, the trustee was given full power of sale of all property, to reinvest the same and to pay the income to the two beneficiaries, who were restricted in alienation of their interests or anticipation of the income by a spendthrift provision. Upon the death of the beneficiaries, the property was to go to their issue, or if none, to nephews and nieces. The entire 165 acres was inventoried in the estate of Sarah A. Mairs, deceased.

On June 29, 1937, Ben A. Mairs and wife gave a deed of trust on the 165 acres, securing a note for $150.00 to “Roscoe C. Mullins, as executor of the estate of Sarah A. Mairs, deceased.” The record does not show whether this deed of trust was foreclosed, but it is listed in the inventory in Sarah’s estate as an asset.

It is conceded in the briefs of the parties that Ben Mairs, Sr., died in 1966. A certified copy of the death certificate of Frances Sarah Martin shows that she died June 24, 1964. Other evidence showed that she was the same person as Frances S. Harrington (and Smith) named in the wills of James A. and Sarah A. Mairs. On September 22, 1938, Frances H. Sanders and husband gave a warranty deed to Roscoe C. Mullins, Trustee of the estate of Sarah A. Mairs, deceased, covering an undivided one-fourth interest in the 165 acres. There was, however, no showing that Frances H. Sanders was the same person who was named in the Mairs’ wills. There is also no evidence that Frances S. Harrington died without having a child then three years old, but she did predecease Ben Mairs, Sr.

At the time of Sarah’s death in 1934, she owned a one-half interest in fee simple in the 165 acres by reason of the 1932 deed from Bagley to her. Her life estate in James’ real estate then terminated. The one-half fee interest of James, owned by him at the time of his death, was either then vested in his trustee, or one-fourth thereof in Benjamin if he had then attained 25 years of age, and the other one-fourth interest in Frances, if she had married and had a child of three years of age.

No trustee, however, was ever appointed to administer the trust estate of James A. Mairs after Sarah’s death in 1934. She, however, appointed R. C. Mullins, as trustee, with full power of sale, by her will. Mullins proceeded to inventory the entire 165 acres on March 18, 1935, in the probate court, made final settlement and was discharged as executor therein on July 9,1952. Apparently, Mullins acted as trustee until June 23, 1952, when the circuit court accepted his resignation and upon the request of Ben A. Mairs, appointed L. L. Ingraham as trustee in the Sarah A. Mairs estate. Ingraham, on April 2, 1953, applied for a declaratory judgment defining the rights of beneficiaries of Sarah’s trust, it being alleged that Ben A. Mairs had received $9,359.72 and Frances Harrington Smith (then Martin) had received $4,956.52 from the former trustee, who also had paid Ben’s ex-wife, Anna, $3,572.62 child support, which the trustee asked to be charged against Ben’s interests. On February 3, 1954, upon the court’s docket sheet, is the finding that Ben A. Mairs had received $10,255.34, and Frances $5,842.54, and that Frances was entitled to $4,412.80 before Ben received any further payments. In this proceeding, Frances joined in the prayer and asked that no further payments be made to Ben from income “and/or the proceeds from the near future sale” until the beneficiaries were equalized. The trustee made annual reports thereafter, paying to Frances about $175.00, until she, on August 23, 1956, moved the court to order the trustee to sell the trust property, distribute the proceeds and to terminate the trust, which motion she renewed in subsequent trust reports. It should be noted that the Sarah Mairs trust consisted of several tracts of real estate other than the one-half interest in the 165 acres.

On December 12, 1962, trustee Ingraham applied to the court for an order authorizing the sale on the ground that the real estate was not profitable. Included in the application was the description of the entire 165 acres. On January 8, 1963, the court, by order, authorized the sale of the same land. A trustee’s deed was executed and delivered to respondent on March 9, 1963. This trust deed omits the description of the 40 acres, the Southwest Quarter of the Northwest Quarter of Section 22, Township 60, Range 20 (or misdescribes it as the Southwest Quarter of the Southwest Quarter of that section, which was not in the chain of title of either James’ or Sarah's estates).

What is here present is that R. C. Mullins and his successor, L. L. Ingraham, assuming to act without appointment, right or authority as trustees in the James A. Mairs trust, took charge of the one-half interest of fee land in that trust. Their designations and appointments as trustees were only in the Sarah A. Mairs estate. The error of that assumption came about, undoubtedly, from the fact that Sarah had a life estate in James’ one-half interest for some 12 years, which along with her own one-half interest in fee, she devised in fee, both of which interests she had legitimately assumed full control during her lifetime.

Ben’s interest in the James A. Mairs trust would have become vested upon his becoming 25 years of age, which could have been no later than in 1947. Frances’ interest could not vest until she married (which she did) and had a child which attained 3 years of age. If she died without the happening of the latter event, which is apparently the fact here, her interest would have (and apparently was) vested in Ben.

Under the facts here, Ingraham’s deed as trustee was ineffective to convey title to the one-half interest in the 165 acres which was in the James A. Mairs trust, Ingraham being without authority to act therein, because of lack of appointment by the court as trustee, and importantly, the lack of authority by a court order to sell the property, the James A. Mairs will granting no power of sale of the real estate to any trustee.

The James A. Mairs will was recorded, according to the abstract of title in evidence, on April 26, 1973, in Book 233 at page 164, in the Recorder’s office of Linn County, Missouri. The will was also probated in the Probate Court of Linn County, Missouri. In Mizell v. Osmon, 354 Mo. 321, 189 S.W.2d 306, 310[1] (1945), the court in considering the effect of the predecessor statute to § 474.500, RSMo 1969 (L.1955, p. 385, § 268A) [which requires wills devising lands to be recorded], said, “And it has been held, in effect, that a will recorded in the recorder’s office imparts notice without reference to said statute. (Citing cases.)” In Mizell, the will devised a life estate only to testatrix’s heirs, which will was not recorded in the recorder’s office. Defendant claimed title by deeds of a fee from the heirs. As to this, the court further said, p. 311[3, 4], “ * * * [H]er will was duly probated and recorded in the records of the probate court. Those attempting to purchase from the heirs of the testatrix were bound to know that the deceased owner could have made a will (citing statute); that, if there was such a will, it would be probated and recorded in the probate court of the county of deceased’s residence or in the county where the land was located (citing statute and case); that the heirs of the deceased record owner would acquire no title by descent, unless such owner ‘died intestate as to such estate,’ * * * and that any apparent interest of the heirs at law (as such) would cease upon the probate of a will.” See also 3 Maus, Probate Law and Practice, § 227, p. 209, as to the notice imparted by the recordation of the will. Under the facts here, respondent could not have been a bona fide purchaser for value of the James A. Mairs trust interest. “One taking a transfer or encumbrance of trust property or funds does not act in good faith, and has constructive notice of a breach of the trust involved in such transfer or encumbrance, where he has failed to exercise such duty of inquiry with respect thereto as the law casts upon him under the circumstances. He must, where he has knowledge of a fact sufficient to put him on inquiry as to the terms and conditions of the trust and the authority of the trustee, make such an inquiry if he is to be protected as a bona fide purchaser for value. It has been held that whatever puts a purchaser on notice of a want of authority in a trustee to sell trust property amounts to notice where the knowledge of the requisite facts would be obtained by the exercise of ordinary diligence.” (Italics added.) 76 Am.Jur.2d Trusts, § 271, p. 493. Here, respondent testified: “Q You, as I understand it, told Mr. DeVoy that you did have the abstract examined; is that correct? A Yes, sir, it was supposed to have been examined. Q No, I’m not asking that. Did you have it examined? A Yes. Q Who was the lawyer who examined it? A Mr. Montgomery, Milan. Q Did he give you a written opinion as to the title of this real estate? A No, sir.” It does not appear whether Mr. Montgomery orally advised respondent as to the state of the title. It thus appears additionally to the notice of the recorded instrument being imparted to him, respondent had the means to ascertain the trustee’s authority, and that there was a lack of due diligence to acquire that information. Respondent, then, could not be protected as a bona fide purchaser for value. “Where the sale of the trust property is unauthorized and a breach of trust, the trust follows such property into the hands of a transferee, irrespective of any security given by the trustee, unless the transferee is protected as a bona fide purchaser for value.” 76 Am. Jur.2d Trusts, § 256, p. 477; see also 76 Am.Jur.2d Trusts, § 455, p. 672. Appellants, as ultimate beneficiaries under the James A. Mairs trusts, did not have their interests cut out because respondent was not a bona fide purchaser under his trustee’s deed.

Respondent says, however, that appellants, and their ancestors, were estopped because their ancestors received payments from the trust, and they, themselves, received final payment upon termination of the trust. It is the general rule typified by the cases cited by respondent, that one who knowingly receives the purchase price of his own estate sold by one assuming to act under a valid power, estops himself in equity from denying the power. Cobb v. Massey, 160 S.W.2d 733, 735 (Mo.1942); Hector v. Mann, 225 Mo. 228, 124 S.W. 1109, 1116 (1910), and cases and authority cited. It should be reemphasized that the trustee’s sale proceedings, and the notices going forth therefrom as the record shows, to appellants’ ancestors, were in the Sarah A. Mairs trust estate, and no mention was made of the James A. Mairs estate. It does appear that trustee Ingraham did receive income from the lands involved, at least to the extent of $125.00 annual rent paid to him by respondent for several years prior to 1963, and that Ingraham made payments for expenses of the trust and distribution to Frances S. Harrington (Martin), after the declaratory judgment settling her rights as against Ben Mairs, Sr. The previous trustee had made payments to both these persons, but in disparate amounts. After the 1963 trustee’s deed to respondent, trustee Ingraham continued to make reports to the court of his activities in the Sarah A. Mairs trust estate, and on February 7, 1967, a final report was filed showing that he had paid to appellants $299.72 each as final distribution, after which he was ordered discharged as trustee.

Neither appellants nor their ancestors were shown to have any actual knowledge of their interests in the James A. Mairs trust. Respondent had the burden of proof upon the issue of estoppel. Medical West Building Corp. v. E. L. Zoernig & Co., 414 S.W.2d 287, 294 (Mo.1967); Kitchen v. McCullough, 428 S.W.2d 907, 910 (Mo.App.1968). All that respondent could rely upon as to appellants’ knowledge (and that of their ancestors — they being still alive at the time of the trustee’s deed) was their constructive notice of the recorded instruments in the James A. Mairs estate. That knowledge is of the same nature as that possessed by respondent. In that situation the equal means of knowledge bars respondent’s claim of waiver (through appellants’ constructive knowledge) and bars the claimed estoppel arising therefrom. “The doctrine of estoppel cannot be successfully invoked where everything is equally well known to both parties, or where, though ignorant of the true state of the title at the time of the occurrence of the act which is claimed as an estoppel, the party making such claim had the means of ascertaining the truth of the matter, by reference to the records.”' Mueller v. Kaessmann, 84 Mo. 318, 329 (1884). See also Rhoads v. Rhoads, 342 Mo. 934, 119 S.W.2d 247, 252 (1938); Land Clearance for Redevelopment Auth. v. Dunn, 416 S.W.2d 948, 951[1, 2] (Mo.1967). Respondent’s contention that appellants are estopped to assert their title is, for the foregoing reasons, without merit.

Respondent’s trustee’s deed was delivered to him on March 9, 1963. Appellants filed their suit to quiet title to the land in question on January 8, 1973. It is apparent that the full ten year period of adverse possession which might have been a good defense to appellants’ action had not run. Respondent, however, contends that he is entitled to tack onto his possession an adverse possession of his grantor trustee, Ingraham. There is no evidence, however, that Ingraham ever held the legal estate adversely to appellants’ ancestors, the beneficiaries of the James A. Mairs trust. Indeed, no trustee was ever appointed in that trust estate. Regardless of that, the rule is that, unless a trustee does some open, notorious and pronounced act in hostility to the fiduciary relationship and in respect to the property held, “ * * * [T]he mere possession of the premises by trustee or former trustee would go for nothing, and be deemed but a prolongation of the former fiduciary relation.” McGuire v. Nugent, 103 Mo. 161, 15 S.W. 551, 553 (1891). See also Kansas City v. Scarritt, 169 Mo. 471, 69 S.W. 283, 285 (1902); Houghton v. Pierce, 203 Mo. 723, 102 S.W. 553, 557 (1907); and generally, 76 Am. Jur.2d Trusts, § 589, p. 796. Respondent has failed to establish his title by adverse possession.

Appellants have shown a title superior to that of respondent as was their burden to do. Jackson v. Ward, 292 S.W. 7 (Mo.1927); Webb v. City of East Prairie, 359 Mo. 247, 221 S.W.2d 153 (1949); Moise v. Robinson, 533 S.W.2d 234 (Mo.App.1975). They are entitled to a decree quieting their title to an undivided one-half interest in the 165 acres, and to a full interest in the 40 acres, the Southwest Quarter of the Northwest Quarter of Section 22, Township 60, Range 20, unless upon remand respondent shall prove that he is entitled to reformation as to that 40 acre omission in his trustee’s deed by reason of mistake.

Respondent presented some evidence as to improvements made by him on the farm. That issue was not ruled by the trial court inasmuch as respondent was given the decree as to title. Upon remand, since by this opinion appellants and respondent have been tenants in common of the property since March 9, 1963, respondent should be given the opportunity to develop evidence as to his good faith improvements, and to his entitlement to an equitable lien on appellants’ interests for any such improvements. See Buschmeyer v. Eikermann, 378 S.W.2d 468 (Mo.1964); Hahn v. Hahn, 297 S.W.2d 559 (Mo. banc 1957).

The judgment is reversed and the case is remanded with directions to enter a decree quieting title to an undivided one-half interest in said real estate in appellants, and in a full interest in the Southwest Quarter of the Northwest Quarter of Section 22, Township 60, Range 20, unless respondent, as he shall be permitted to do, shall produce the proper degree of proof that he is entitled to reformation of his trustee’s deed of March 9,1963; and to permit respondent to produce proof of his good faith improvements on the land in question.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmie (James) Lee BROWN, Defendant-Appellant.
    No. 28754.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      Glen A. Dietrich, Larry L. Zahnd, Zahnd & Dietrich, Maryville, for defendant-appellant.
    Robert S. Drake, Jr., Sp. Pros. Atty., Warsaw, for plaintiff-respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

James Lee Brown was convicted of the misdemeanor of operating a motor vehicle while intoxicated, second offense, in violation of § 564.440, RSMo 1969. Brown stated he could not afford to pay his own counsel and requested the court to appoint an attorney to represent him, but the court refused. A jury found Brown guilty and the court assessed punishment as confinement in the county jail for six months.

On this appeal Brown contends he was deprived of his constitutional right to the assistance of counsel when he did not waive such right. Reversed and remanded.

When Brown first appeared in circuit court, the following occurred:

THE COURT: Do you have an attorney?
THE DEFENDANT: No, sir.
THE COURT: Are you going to employ an attorney?
THE DEFENDANT: I can’t afford one.
THE COURT: What are you doing?
THE DEFENDANT: I am workin’ for the township.
THE COURT: How much are you getting paid?
THE DEFENDANT: $3.50 an hour.
THE COURT: You can afford one.
THE COURT: I am not going to ask the taxpayers to support you Mr. Brown. You are making $3.50 an hour and this is part of your expense.
THE DEFENDANT: Well, there’s eight in my family and it takes quite a bit to make a living.
THE COURT: Well, did it take anything to get what you were drinking, or were you drinking?
THE DEFENDANT: Yeah, it did.

Brown’s case was set for trial about three months later and on that date he again appeared in court. The following occurred at that time:

THE COURT: Mr! Brown, I think I have advised you before, if I haven’t, I want to at this time. If you are convicted, and I don’t know whether you are guilty or not, but if you are convicted, it’s mandatory jail sentence, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You are able to employ an attorney and you elected not to do so, is that true?
THE DEFENDANT: No, I am not able to.
THE COURT: You are not able to, what are you doing?
THE DEFENDANT: Working for Hughes Township.
THE COURT: How much a month are you making, or a week?
THE DEFENDANT: Well, I get $3.50 an hour, on the average of $100.00, $115.00 a week.
THE COURT: How long have you been working there?
THE DEFENDANT: Oh, since September.
THE COURT: I don’t understand why you say you can’t employ an attorney, then.
THE DEFENDANT: Well, it cost about $75.00 a week for groceries, $75.00 a month for rent,. $50.00 a month for light bill, gas expense, school expense, clothing expense, now, where do you get $500.00 to hire a lawyer at?
THE COURT: I do not know that, but you had since September, since June of last year, you paid a professional bondsman, didn’t you, to get out?
THE DEFENDANT: Well, I had to borrow the money to do that.
THE COURT: You did it though, didn’t you?
THE DEFENDANT: Yes.
THE COURT: How much did you pay the professional bondsman?
THE DEFENDANT: I guess $100.00.
THE COURT: I am not going to appoint an attorney for you because I think if you are able to pay a professional bondsman and you’re making $3.50 an hour and working regularly, that you’re able to employ one. Do you understand the charge against you?

Brown’s trial began the following morning. Out of the presence of the jury, the State presented evidence to show Brown had one prior conviction for operating a motor vehicle in an intoxicated condition. Under § 564.440 a mandatory jail sentence from 15 days to one year in the county jail would follow if Brown were convicted on the charge then pending.

Under the holding in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) there can be no doubt Brown was entitled to counsel unless the record shows a knowing and intelligent waiver of this right. Argersinger dictates that all persons are entitled to counsel when they face the prospect of confinement. The right of one who cannot afford to hire an attorney to have one appointed was recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The question which confronted the court here was whether or not Brown was financially able to pay an attorney. The guide to determine indigency at the time of Brown’s appearance in December, 1975, and March, 1976, with respect to felonies, was found in § 600.050, RSMo 1975 Supp. That Section required the court to “make a finding as to indigency through suitable inquiry into the financial circumstances of the person and his immediate family with regard to their assets, income, debts and family obligations, and such other matters as may be relevant, including the nature of the charge and the probable cost of adequate legal representation.”

This Section was a guide the court could have used in this case because the distinction between felonies and misdemeanors had been eliminated by Argersinger. Since the mandatory jail sentence for Brown would follow a conviction, as noted by the court, the necessity of counsel was plain. In this situation the court was obligated to either secure a knowing and intelligent waiver of counsel, appoint counsel, or make a finding Brown could afford to pay counsel. To validly follow the latter course, which the court chose, it was necessary to hold a meaningful hearing to develop the facts as outlined in § 600.050, RSMo 1975 Supp.

From the colloquy between Brown and the court, set out above, the court was informed Brown had a family consisting of eight persons, and had an income of $100 to $115 per week, which would be about $400 to $460 per month. Brown further stated his living expenses totaled about $425 per month for the bare necessities which he mentioned. It is apparent there are other expenses which Brown would have to bear which were not enumerated by him. The reason given by the court for refusing to find Brown to be entitled to appointment of an attorney was that Brown had paid a professional bondsman and was regularly employed at $3.50 per hour. The court also was apparently impressed that Brown had found sufficient funds to at least allegedly purchase some liquor.

The amount Brown stated he spent for the bare necessities of life for himself and his family only showed a surplus of $35 per month for his highest earnings, and at his lowest earnings, a $25 deficit. Brown stated the cost of an attorney would be $500.

The fact Brown paid a professional bondsman does not dictate a finding he was financially able to hire his own attorney. People v. Gillespie, 42 Mich.App. 679, 202 N.W.2d 552, 553[5, 6] (1972). Such fact is to be considered with all other facts. Here an expenditure of $100 for a bond would not indicate an ability to pay an attorney.

Although the court did not conduct an examination to bring out the facts concerning Brown’s financial ability to pay an attorney, it is clear Brown stated sufficient facts to demonstrate he could not afford to pay his own attorney. The court abused its discretion when it refused to appoint an attorney to represent Brown.

The test of whether or not a person is financially able to pay his own attorney is to ascertain if the evidence shows he can do so without substantial hardship to himself or to his family. State v. Mickle, 56 Haw. 23, 525 P.2d 1108, 1111[3] (1974). The evidence, of course, must encompass those factors enumerated in § 600.086, RSMo 1976 Supp. for cases arising after the effective date of that Section. However, the same standards apply to this case by reason of the requirement for appointment of counsel and the elimination of the distinction between misdemeanor and felony cases by the decision in Argersinger.

Brown did not waive the right to have counsel and the court erred in finding he could afford to pay his own. The judgment is reversed and the cause remanded for a new trial.

All concur.


author: PRITCHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. William R. PETERSON, Appellant.
    No. KCD 28864.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, C. J., PRITCHARD, P. J., and DIXON, J.
   PRITCHARD, Presiding Judge.

Appellant was convicted by the verdict of a jury of robbery in the first degree. The jury was unable to agree upon punishment, and the court set it at 7 years imprisonment in the Department of Corrections.

Gloria Hopkins, being alone as assistant manager of Thriftway Cleaners, 5802 Swope Parkway, Kansas City, Missouri, was confronted by a man with a handgun on the afternoon of April 4, 1975. He took from her the contents of the cash register. The first contention of error is that the court improperly permitted Gloria to testify that appellant was the same person who robbed her again on April 10,1975, at the same location, thus introducing evidence of another crime for which appellant was not on trial. The point is without merit, and needs no further discussion than to say that the evidence comes within one of the well recognized exceptions to the exclusionary rule of proof of other crimes— that of the identity of the accused. State v. Reese, 864 Mo. 1221, 274 S.W.2d 304, 307 (1954); State v. Granberry, 530 S.W.2d 714, 723 (Mo.App.1975), and cases cited.

Appellant testified that he did not rob the Thriftway Cleaners on April 10, 1975. His second contention of error is that the court erred in permitting the state to cross-examine him as to his whereabouts on that day, because it was immaterial to prove his complicity in the crime for which he was on trial and prejudiced his case (alibi) in the eyes of the jury, denying him a fair trial. The cross-examination was clearly within the purview of the appellant’s direct testimony, and no error appears. State v. Dalton, 433 S.W.2d 562, 564 (Mo.1968), and cases cited; § 546.260, RSMo 1969.

An extended opinion on this obviously unmeritorious appeal would have no prece-dential value. Rule 84.16(b) [as amended May 6, 1976, effective Jan. 1, 1977],

The judgment is affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    Marva J. PIGGOTT, Appellant, v. John J. MILLER, Respondent.
    No. KCD 28908.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Charles C. Shafer, Jr., Herman M. Shaffer, Kansas City, for appellant.
    Catherine Earnshaw Hobbs, Earnshaw & Earnshaw, Lee’s Summit, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

The appellant (plaintiff), then a minor, through her next friend, filed suit for actual and punitive damages against the respondent (defendant) on May 12, 1972. This suit was drafted in two counts. Count I sought damages for breach of a promise to marry, and Count II sought damages for seduction, a resulting pregnancy, medical expenses, and incidental damage to reputation, embarrassment and nervousness resulting therefrom.

The defendant filed a motion to dismiss both counts. His motion to dismiss Count I was based upon the fact that the petition showed upon its face that at the time of the association of the parties the defendant advised the plaintiff that he was married and that a promise to marry “by or to a person who, to the knowledge of the other party, has a spouse living is absolutely void in its inception and is ineffectual to give rise to a cause of action against this defendant.”

The motion to dismiss Count II was based upon the asserted grounds that prior to 1968 there was no duty upon the putative father of an illegitimate child to either support such child or pay for the medical care of the mother during the pregnancy or birth. The defendant pleaded that while, since 1968 “illegitimate children have equal rights with those of legitimate children to require support by their father, there have been no decisions broadening this obligation to require a father to pay for medical care and attention of the mother during pregnancy.”

On July 7, 1972, Division No. 8 of the court below sustained the motion to dismiss Count I of the petition and overruled it as to Count II, without memorandum and without designation as a final appealable order. Thereafter, the cause was administratively assigned to Division No. 1, and on June 28, 1976, the parties and their counsel appeared in open court for trial on Count II. In pretrial proceedings the court below reconsidered defendant’s motion to dismiss Count II and held that it did not state a cause of action because of the fact of defendant’s known existing marriage at the time of the seduction under promise to marry; that no civil action for damages could be maintained by the seducee (plaintiff) even though the evidence might support a criminal charge under Section 559.310 RSMo 1969 which makes it a felony upon a finding of seduction of a female under 18 years of age; and that the court was controlled by the decisions of Roper v. Clay, 18 Mo. 383 (1853); Jordan v. Hovey, 72 Mo. 574 (1880); and Fitch v. Coats, 167 S.W.2d 478 (Mo.App.1943). The court thereupon entered an order dismissing Count I (already dismissed) and Count II, and assessing costs against the plaintiff. It is from this judgment of June 28, 1976 that plaintiff appeals.

The plaintiff has not briefed or argued the validity of the cause of action on contract for breach of promise of marriage as alleged in Count I of her petition so that this need not be considered here. She raises one assignment of error or point on this appeal, namely:

“The trial court erred in dismissing Count II of plaintiff’s petition for failure to state a cause of action upon which relief could be granted because the Constitution of Missouri, the statutes of Missouri and national modern case law clearly indicate that the woman seduced is the real party in interest and she should be allowed to sue in her own name for damages occasioned by her own seduction.”

In essence, it appears that the plaintiff’s position in the court below (and here) is that, entirely aside from the contract action for breach of promise of marriage, the plaintiff had a cause of action, civil in nature and sounding in tort, for her wrongful seduction, which was asserted in Count II of her petition. Further, she asserts that she is the real party in interest with regard to this claim.

The defendant’s position is that the woman seduced (plaintiff) “is not the real party in interest” and was not entitled to maintain the action stated in Count II “in her own name”. Implicit in this position as stated in defendant’s brief is the recognition that such a cause of action exists under the facts stated but is sought to be advanced by the wrong plaintiff. In the argument portion of his brief it appears (somewhat obscurely) that he also seeks to apply the strict contract rule of breach of promise of marriage to the civil damage action for seduction.

With the issues before this court thus drawn, it is essential that the plaintiff’s pleaded cause of action be accepted as true on review of the order of dismissal. Summarized Count II of plaintiff’s petition pleads (directly and by means of adoption by reference of Count I allegations):

The plaintiff (then 18 years old and unmarried) and the defendant associated together for several months in the early part of 1972, during which time he advised her that he was married but was in the process of securing a divorce in order that he could marry plaintiff. A petition for divorce against his wife was filed by defendant but was later dismissed. On numerous occasions the defendant promised to marry plaintiff and she agreed and believed that they were engaged and advised her friends and family of such fact. Relying upon this, the plaintiff permitted defendant to overcome her will power and have sexual intercourse with her, as a result of which she became pregnant. The defendant’s acts in this regard were wilful, wanton and malicious. The defendant refused to follow through with his divorce. The plaintiff has suffered severe damage to her reputation in the community and her chances of marriage lessened; she has incurred, and will in the future incur, medical and hospital expenses; and has suffered grievous humiliation, embarrassment and great mental and emotional disturbance. She seeks both actual and punitive damages.

In this posture the single issue presented on this appeal is whether a seduced female may maintain a civil action for damages in her own name for her own seduction.

The existence of a cause of action for damages for seduction is of ancient common law origin although, at common law, such a cause was based solely upon the relationship of master and servant and was intended to compensate the master for the loss of the services of his servant, wife or minor child. Wives and minor female servants in this context were considered a type of superior servant of the husband and father. 79 C.J.S. Seduction § 3 p. 956; Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9, 18 [18] (1974); 8 Holdsworth, History of English Law, 2d Ed. 1937, 427 FF; Wigmore, “Interference with Social Relations”, 21 Am.L. Rev. 764 (1887). Thus, the common law recognized the possible wrong visited by the seduction but lodged any right of redress therefor in the master and denied such right to the person violated. Such a result has been denominated a “legal fiction” and has been strongly criticized since the early case law in this country.

The court in the case of Magierowski v. Buckley, 39 N.J.Super. 534, 121 A.2d 749, 754 (1956) quoted with approval from the early case of Van Horn v. Freeman, 6 N.J.L. 322, p. 325 (1796) wherein it was said:

“ * * * it is in general a mere fiction of the law, in order to give some kind of compensation for an injury of the most atrocious kind, which would otherwise be remediless. In these cases, generally speaking, little or no service is either performed by the daughter or expected from her; and were it not for the highly respectable characters by whom this fiction has been supported and recognized, I should not hesitate to express my opinion that it disgraces the jurisprudence of the country.”

Under Section 507.010, RSMo 1969, it is provided that “[EJvery action shall be prosecuted in the name of the real party in interest * * *This mandate leaves no room for indulgence in the common law fiction that a seducee cannot prosecute an action for damages for her seduction resulting in damages, injuries and expenses and incidental injury or damage sustained by her personally as alleged in Count II of plaintiff’s petition. Plaintiff is the real party in interest here.

Respectable authorities from other jurisdictions have so held in applying similar statutes. Hood v. Sudderth, 111 N.C. 215, 16 S.E. 397 (1892); Johnson v. Harris, 187 Okl. 239, 102 P.2d 940, 942 [10, 11] (1940); and Watson v. Watson, 49 Mich. 540, 14 N.W. 489 (1883).

In a recent opinion of the St. Louis District of this court, the common law and modern law in the field of civil actions for seduction is discussed in an exhaustive and scholarly manner. It was there specifically held that a seducee could maintain an action for damages arising from her seduction. The conclusions therein reached, so far as applicable to the case at bar, are adopted. Breece v. Jett, 556 S.W.2d 696, decided August 30, 1977, Simeone, C. J.

The court below based its ruling largely upon the ancient cases of Roper v. Clay, supra, and Jordan v. Hovey, supra, and the case of Fitch v. Coats, supra.

Roper v. Clay, supra, followed the common law fiction that the seducee could not maintain the action in her own name, but in the light of the “real party in interest” statute this decision is no longer authoritative.

Jordan v. Hovey, supra, also applied the common law rule but in a case where the seducee sought to maintain her cause of action against her seducee’s father, who it was claimed “advised” her to have intercourse with his son, to whom she was engaged.

Fitch v. Coats, supra, was a suit for breach of contract of marriage and seduction in one count. The court held that, since at the time of the alleged promise the defendant was married and the plaintiff knew of this fact, the contract action could not be maintained. The court carefully noted (167 S.W.2d l.c. 486) that the case was not “a suit for damages for seduction”.

These cases are no longer persuasive or binding authority. As was said in Slawek v. Stroh, supra, 215 N.W.2d p. 18 [19]:

“To extend the right of recovery to the woman seduced does not create a new cause of action insofar as the seducer is concerned — his conduct is reprehensible and he should respond in damages whether it be to parent or the woman herself. This is especially true at this stage of our social development when it is no longer realistic to think of the services and wages of a woman belonging to her husband or parents with the same inflexibility as we did one hundred years ago.”

A seduced female may properly maintain an action for damages sounding in tort against her seducer in her own name as the real party in interest.

However, the real party in interest statute does not create any cause of action and a correct resolution of this appeal requires a determination of whether or not the plaintiff has stated or could state a cause of action where the very gravamen of the action is based upon a promise to marry. In other words, does the. legal fact that plaintiff cannot maintain a contract action based upon a breach of a promise to marry because of the inability of the promisor-se-ducer by reason of an existing marriage destroy her action in tort?

The basis of an action for seduction arises from false promises, artifice, solicitation, importunity, fraud and the like, 79 C.J.S. Seduction § 1, p. 955, resulting in improper relations (and in this ease pregnancy also). While the contract action (breach of promise) and the tort action (damages for seduction) may arise from the same transaction or within the same time frame the failure of the contract action does not necessarily bar the tort action. Kralick v. Shuttleworth, 49 Idaho 424, 289 P. 74, 78 [12-14] (1930); Kirkpatrick v. Parker, 136 Fla. 689, 187 So. 620, 624 [5] (1939). This is true even though the promise of marriage was void, because of the legal incapacity of the promisor, and both parties knew that it could not be enforced, if the woman believed the promise and yielded because of it. Hawk v. Harris, 112 Iowa 543, 84 N.W. 664, 665 (1900); Rabeke v. Baer, 115 Mich. 328, 73 N.W. 242, 243 (1897); 70 Am.Jur.2d, Seduction, § 6, p. 59.

In the case of State v. Brock, 186 Mo. 457, 85 S.W. 595, 596 (1905), the Supreme Court of Missouri said:

“Any person capable of seducing and debauching a female can make a promise of marriage * * * . It would be strange, indeed, if a person could in this way violate both law and morals, and not be held amenable to the law, but shield himself upon the ground that he was not capable of making a valid contract. Such is not the law.” (Emphasis added)

The plaintiff here alleged facts from which it could be found that the promise of marriage was made, the defendant’s divorce action was pending, she relied upon and believed the promise and that as a result the defendant was able to “overcome her will power”. Further, she states that defendant’s “acts were wilful, wanton and malicious”. No attack was made upon the petition for lack of specificity or request for a more definite statement.

While plaintiff must assume a heavy burden of proof and her petition may be subject to amendment, she has stated a cause of action in tort for damages for seduction.

The dismissal of Count I is affirmed. The dismissal of Count II is reversed and the cause of action as to that count is remanded for further proceedings in accordance with this opinion.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. Gary Dale KEY, Appellant.
    No. KCD 29030.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from conviction by a jury of robbery, first degree. The questions are whether a mistrial should have been declared following testimony by a witness that defendant “had just gotten out of * * * ”; and whether the jury venire should have been quashed because of systematic exclusion of women from jury service. Affirmed.

Appellant does not question the sufficiency of evidence to sustain his conviction. The record shows that on December 22, 1975, at about 2:30 a. m., Gary Dale Key, Harvey Williams, and Debra Bell drove in her automobile to Jerry Brazel’s Standard Service Station in Independence, Missouri, and, while armed with a pistol, Key and Williams robbed the owner of some $300 in currency and credit card receipts by putting Clifford Cerey, an employee, in fear of immediate injury to his person, and 560.135, RSMo 1969. §§ 560.120

During defendant’s cross-examination of State’s witness Debra Bell, the following occurred:

“Q [by Mr. Sterling for defendant] After they arrested you, did the police make it clear to you, as far as they were concerned, Gary Key was one of the perpetrators of this robbery? A He just told me that Gary Key was, had just got out of—

“MR. STERLING: Objection. Stop right there. MR. DAKOPOLOS: Stop. MR. STERLING: May we approach the bench.
“(WHEREUPON, the following proceedings were had in the presence BUT OUTSIDE THE HEARING OF THE JURY.)
“MR. STERLING: I’m going to ask for a mistrial at this point. I think even though we stopped her at a certain point, our actions—the unresponsive answer was sufficient for the jury to create a suspicion that he has a prior record and therefore, I’m going to ask for a mistrial.
“THE COURT: Request denied. I didn’t think she answered it. I don’t know what the record shows but she stopped before she said anything.
“MR. STERLING: She said, and I’m sure the jury—‘They told me that he had just gotten out.’
“MR. DAKOPOLOS: I believe that’s all she said. He could have been getting out, anywhere.
“THE COURT: Request denied.”

Appellant contends the court erred in its refusal to declare a mistrial asserting that Miss Bell’s testimony constituted inadmissible proof of separate crimes by implication that defendant had just gotten out of jail for a prior crime.

The difficulty in this position is that Miss Bell’s answer was incomplete and without meaning. It did not violate the rule against admission of evidence of separate and distinct crimes as in State v. Lee, 486 S.W.2d 412 (Mo.1972), and State v. Holbert, 416 S.W.2d 129 (Mo.1967); or brand defendant as a prior offender as in State v. Martin, 506 S.W.2d 473 (Mo.App.1974). Grant of a mistrial is reserved to those situations where no action short of a mistrial will avoid prejudice to a defendant’s case. State v. Johnson, 504 S.W.2d 23 (Mo. 1973); State v. Duncan, 499 S.W.2d 476 (Mo.1973). No such prejudice may be ascribed to the incomplete answer of Miss Bell in its context in this case.

Appellant contends the court erred in its refusal to sustain his motion to strike the jury panel because of systematic exclusion of women from jury service and denial of his right to be tried by a jury representative of a cross-section of society. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954).

The difficulty here is that defendant failed to produce evidence to show that the method of selection of jurors resulted in a constitutionally deficient panel. State v. Conley, 541 S.W.2d 4, 6 (Mo.App.1976); State v. Amerison, 399 S.W.2d 53 (Mo.1966); State v. Davis, 462 S.W.2d 798 (Mo.1971); State v. Ransburg, 466 S.W.2d 691, 693 (Mo.1971); State v. Blankenship, 536 S.W.2d 520, 522 (Mo.App.1976). The court afforded defendant the opportunity to present empirical data or other evidence on the question, but no such evidence appears to have been presented to the trial court and none appears in the record. Appellant’s brief purports to present relevant statistics but this court is limited to consideration of that which is presented by the record made in the trial court. State v. Johnson, 286 S.W.2d 787, 796 (Mo.1956); State v. Andrade, 534 S.W.2d 595, 597 (Mo.App.1976).

Judgment affirmed.

All concur.

      . The Supreme Court has considered the effect of these cases on the Missouri jury selection process under Article I, Section 22(b), Missouri Constitution, and its implementing statute, Section 494.031(2), RSMo Supp.1975, and determined that Missouri provides a facially valid jury selection system. State v. Duren, 556 S.W.2d 11, Mo. banc, 9/27/77.


text:
    Morris A. DeCONINK, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29036.
    Missouri Court'of Appeals, Kansas City District.
    Oct. 11, 1977.
    Robert N. Adams, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Kansas City, for respondent.
    Before SWOFFORD, C. J., DIXON, J., and PRITCHARD, P. J.
   PRITCHARD, Presiding Judge.

Appellant had pleaded guilty to charges of forgery and tampering on January 5, 1976, as a result of plea bargaining between his counsel, Ms. Edith Messina, and the prosecuting attorney. He now seeks to vacate the convictions and sentence under Rule 27.26 upon the grounds that he was denied effective assistance of counsel because of an alleged conflict of interest of counsel by reason of her prior representation of one Sharon Cox, who was charged earlier in conjunction with the charges brought against appellant; and that he was led to believe that if he did not plead guilty, charges would be filed against Sharon. Apparently, Sharon was the woman with whom appellant had lived and by whom he had fathered children.

Appellant testified that Ms. Messina told him that based upon the evidence in the case, the prosecutor would probably file charges against Sharon if he did not plead guilty. Ms. Messina, in testifying, denied this and also testified that she did nothing to coerce appellant to plead guilty. This initial conflict in the testimony, which was for the trial court to resolve, disposes of appellant’s first point (mentioned secondly above) adversely to him. Beavers v. State, 520 S.W.2d 675, 679[2] (Mo.App.1975).

Sharon Cox testified for movant that she had earlier been charged criminally in conjunction with the charges brought against appellant, and that Ms. Messina, who represented her in those cases, asked her if she would testify against appellant to better her own case. Sharon never did testify against appellant, but did enter her plea of guilty to a forgery charge in January, 1975, was sentenced to two years imprisonment, placed on probation, but the probation was later revoked.

In this connection, Ms. Messina testified that appellant told that he had committed the crimes with which he was charged; that in plea negotiations, no mention was made as to whether the state would file charges against Sharon; that she discussed the plea bargain arrangements with appellant and his mother and sister before he entered his plea; that she filed a motion to withdraw as appellant’s counsel because of her belief that there was a potential conflict of interest by reason of her prior representation of Sharon; that she informed appellant of the potential conflict, but he had no objection to her continuing as her attorney, which fact he stated to the court at the guilty plea hearing. (Italics added.) Ms. Messina testified further that “Sharon’s cases had been taken care of, period. I did not represent both of them at this particular time. I represented only Morris, because Sharon’s was already done at this point. So there was nothing else to be done with Sharon’s cases when it was filed.” Sharon was not endorsed as a witness on the charge against appellant. As to her motion to withdraw as counsel, Ms. Messina testified: “A. They were based on a potential conflict that there was a very slim possibility that Sharon might be called upon to testify against Morris, however, she was not endorsed as a witness. There had been no attempt by the prosecution to bring her back to testify against him, and absent that, I didn’t see a conflict. Q. Then the conflict did not develop; is that correct? A. Not to my mind it didn’t, no. Q. Did your representation of Sharon Cox or Sharon DeConink in any way detract from your representation of Morris DeConink? A. No. Morris’s cases were fully investigated over and above anything that was done for Sharon, and I have to reiterate that I do not believe that Sharon was charged with the same check that Morris was charged with. Those were not the same cases.” [In view of this latter statement, the record is not clear as to Sharon being charged in connection with charges against appellant, as above noted.]

It is apparent from the foregoing that there was no actual conflict of interest in Ms. Messina representing appellant, who acquiesced in her continued representation of him upon being informed of the potential conflict in the prior representation of Sharon. The burden of proof to show any actual conflict of interest was upon appellant. The claim cannot be sustained on the basis of speculation, and will not be upheld absent evidence of actual conflict of interest or evidence pointing to a substantial possibility of conflict of interest as between the co-defendants. Peterson v. State of Missouri, 355 F.Supp. 1371, 1388 (W.D.Mo.1973). See also State v. Cox, 539 S.W.2d 684, 687 (Mo.App.1976), holding that there is no deprivation of constitutional right where a defendant knowingly consents to being represented by counsel who also represents a prosecution witness. Clearly, there was a waiver here of any potential conflict in Ms. Messina’s earlier representation of Sharon, who was not even shown to have been a prosecution witness against appellant.

The further facet of this case is the fact that appellant, without question, knowingly and voluntarily entered his plea of guilty to the charges against him. In that circumstance, it becomes immaterial as to the adequacy of counsel’s representation. Williams v. State, 508 S.W.2d 211, 213 (Mo.App.1974).

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Cleaborn RYAN, Appellant.
    No. KCD 29089.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

Under an information charging felonious assault under Section 559.180 RSMo 1969, and commission of a prior felony, the jury found defendant guilty and the court, under the Second Offender Act, Section 556.280 RSMo 1969, sentenced him to 40 years imprisonment. Defendant’s sole contention on this appeal is that the trial court erred in permitting an amendment to the information to change defendant’s name from Clea-borne Ryan to Cleaborn Ryan.

This amendment arose in the following manner. The prosecution offered its Exhibit 1 to show defendant’s prior conviction so as to bring him within the Second Offender Act. That exhibit showed that the party convicted was Cleaborn Ryan. The information as then on file stated defendant’s name to be Cleaborne Ryan. Upon the offer of Exhibit 1, defense counsel objected on the ground that the prior conviction was not in the name of the defendant. The State thereupon requested leave to amend to name defendant as Cleaborn Ryan, and that amendment was permitted.

The amendment was pursuant to Rule 24.02 which provides that the court may permit an information to be amended at any time before verdict if no different offense is charged and “if substantial rights of the defendant are not prejudiced.” Defendant claims that the amendment does prejudice his rights in that it permitted the prosecution to take advantage of the legal principle that the identity of names between a person charged and a person for whom a record of previous conviction is produced is prima facie evidence for identification of the defendant as the person previously convicted.

That claim of prejudice is untenable. The lack of prejudice is perfectly apparent from the fact that the names “Cleaborne” and “Cleaborn” would be considered identical for the purpose of the Second Offender Act even without the necessity of any amendment, under the rule of idem sonans. State v. Webb, 518 S.W.2d 317 (Mo.App.1975); State v. Sheets, 468 S.W.2d 640 (Mo.1971). See also State v. Harris, 452 S.W.2d 577 (Mo.1970). Indicative also of absence of prejudice is the lack of any claim by defendant that he is not the same Ryan named in Exhibit 1 or that he was not previously convicted as alleged by the State. See State v. Cook, 463 S.W.2d 863, l.c. 869 (Mo.1971). The cases cited by defendant have been examined and are not contrary to the trial court’s allowance of this amendment.

Affirmed.

All concur.


text:
    Thomas Daily DEAN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29102.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    William G. Mays, II, Public Defender, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, C. J., DIXON, J., and PRITCHARD, P. J.
   PRITCHARD, Presiding Judge.

On this appeal from a denial of his motion to vacate conviction and sentence under Rule 27.26, appellant contends solely that the trial court was clearly erroneous in so ruling in that it failed to make an explicit finding on appellant’s contention that his guilty plea (to the charge of armed robbery) “was induced by his attorneys with assurances that probation would be granted” and that his sentence would not exceed 5 years.

At the hearing, one of appellant’s trial counsel testified that he had not told him that the state and the trial judge had agreed that he would receive probation, or that he would receive a 5 year sentence or be placed on probation, or that the trial court would follow either his or the prosecutor’s recommendation as to punishment. Co-counsel testified similarly that he had never told appellant that he had spoken to the trial judge; or that the trial judge had agreed to place appellant on probation. He explained to appellant that the court was not bound by any recommendation from appellant’s counsel, and that the court had the power to sentence him to any punishment within the range allowed by law.

The trial court’s findings on the issue were responsive to the evidence here presented, and were adequate. Compare Thomas v. State, 512 S.W.2d 116, 121 (Mo. banc 1974). The appeal here is entirely without merit, and an extended opinion would be utterly without precedential value. Rule 84.16(b) (as amended May 6, 1976, effective Jan. 1, 1977).

The judgment is affirmed.

All concur.


text:
    Lawrence DANIELS, Appellant, v. Constance J. DANIELS, Respondent.
    No. KCD 29151.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.
    Richard L. Colbert, Kansas City, for appellant.
    Jay W. Jensen, Kansas City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

The marriage of the parties, Lawrence Daniels and Constance J. Daniels, was dissolved by decree dated July 8, 1976. Lawrence, on this appeal, challenges the property division ordered as part of that decree. Specifically, he alleges that the trial court erred in ordering cash payment by him to Constance of $3,700 to accomplish an equalization arising out of the division of specific items of property.

Constance came to Kansas City from Chicago in 1964, bringing with her six rooms of furniture and approximately $8,000 in cash. That cash was deposited in her own name in the Southeast State Bank. In 1967, the parties participated in a marriage ceremony, but one which in fact had no effect. Following that ceremony, which Constance believed to be valid, she changed her account at the Southeast State Bank to the joint names of herself and Lawrence. Although Lawrence made no deposits of his own money into that account, he assumed charge of it. Until the time that the account was closed in 1973, funds from this account were used to pay $1,800 on a mortgage loan against the house in which the parties lived, but which was and still is in Lawrence’s sole name, and also to make repairs on that house, including $4,000 for siding, $200 from this account was also used to open an account in Lawrence’s sole name with the Postal Employees Credit Union. The exact date upon which the Postal Employees Credit Union account was opened is not clear from the record.

In 1973 the parties entered into a valid marriage. Then Lawrence brought home a card for Constance to sign with respect to his Postal Employees Credit Union account, which she assumed would place that account into joint names just as she had done with her account. Thereafter, Constance thought of the Postal Employees Credit Union account as “ours” and she deposited therein virtually all of her earnings which amounted to approximately $400 a month. She testified that “I trusted and loved my husband and so I allowed him to — I obeyed him and did what he said to do, and so he told me what to do and I did it. I gave him the money and he disbursed with [sic] it.” Although Lawrence in fact did not change the account to joint names, he did make disbursements from that account for joint purposes including the payment for a 1973 Chrysler which has been used by Constance and a 1969 automobile which has been used by Lawrence.

The parties separated in June, 1975. Lawrence has remained in possession of his house with all of the furniture which had accumulated there. Constance withdrew $3,000 cash and purchased new furniture which at the time of trial she valued at $1,500. Lawrence remained in possession of one automobile which he valued at $1,000 and apparently has some United States Savings bonds of an indeterminate value. Constance is in possession of an automobile valued at $3,500 and at the time of trial had a savings account with a balance of $2,300. Lawrence’s account at the Postal Employees Credit Union at the date of trial on July 8, 1976, had a balance of $469; but two weeks previously on June 25, 1976, the balance in that account had been $9,924.72.

The furniture and two automobiles had been divided between themselves by the parties prior to the time of trial, and those items were set off and confirmed to each of them respectively by the court’s order. The decree then went on to set over the Postal Employees Credit Union account to Lawrence and the funds in Constance’s Federal Government Employees Credit Union account to her. The court further found that Constance “is entitled to a judgment against Petitioner [Lawrence] in the sum of $3,700.00 in order to accomplish an equitable division of the marital property” and the decree ordered Lawrence to pay that amount.

Lawrence’s three points on appeal all concentrate on the provision last mentioned requiring the payment of the $3,700. He argues first that the Postal Employees Credit Union account was separate, not marital, property and that the trial court erred in considering any part of that account for the purpose of property settlement. He argues that he owned that account before the marriage and that therefore the original amount plus all accretions even after the marriage constitute his separate property. He cites in support Gain v. Cain, 536 S.W.2d 866 (Mo.App.1976), in which real estate was held to be separate property of the husband even though marital funds were used after the marriage to make payments on the purchase money mortgage. Not cited by Lawrence but very much along the same line is Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976), which holds that a husband is entitled as his separate property to real estate owned by him before the marriage even though substantial improvements were added to the property out of marital funds after the marriage.

In order to make this argument, Lawrence asserts that the account in question was opened before the marriage. Although the record is far from clear on this point, we will assume for the purpose of this opinion that such was indeed the fact. We shall also assume without deciding that the rule of Cain and Stark applies to a bank account established before marriage and that the prior separate ownership carries along with it, as the husband’s separate property, all deposits thereafter made.

Nevertheless, even upon those assumptions, another principle comes into play which requires rejection of Lawrence’s contention. This controlling principle is that a spouse may by agreement, either express or implied, or by gift, transmute an item of separate property into marital property. Jaeger v. Jaeger, 547 S.W.2d 207, 211 (Mo.App.1977); Stark v. Stark, supra; Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975); In re Marriage of Jafeman, 29 Cal. App.3d 244, 105 Cal.Rptr. 483, 492 (1972); In re Nelson’s Estate, 224 Cal.App.2d 138, 36 Cal.Rptr. 352, 355 (1964); Beam v. Bank of America, 6 Cal.3d 12, 98 Cal.Rptr. 137, 146, 490 P.2d 257 (bank 1971); Millington v. Millington, 259 Cal.App.2d 896, 67 Cal.Rptr. 128, 139 (1968); Title Insurance & Trust Co. v. Ingersoll, 153 Cal. 1, 94 P. 94 (1908); Noble v. Noble, 26 Ariz.App. 89, 546 P.2d 358, 362 (1976); Fowler and Krauskopf, “Property Provisions” 29 Journal of Missouri Bar 508, l. c. 512 (1973).

The facts here bring the case within that principle. Lawrence brought home a signature card leading Constance to think that his Postal Employees Credit Union account was being contributed to the marital joint assets. In that belief and trust that this account was “ours,” she deposited therein $400 a month and Lawrence proceeded to use the funds for joint purposes. The parties by their actions clearly intended and acted upon the intention that the Postal Employees Credit Union account had been converted into and was to be marital property.

Lawrence argues next that if the Postal Employees Credit Union account is to be considered as marital property at all, it has to be evaluated as of the date of trial, July 8, 1976, when the balance was down to $469.00. There is some confusion in the record as to the date and amount taken into consideration by the trial court as controlling with respect to this account, but from the colloquies and the decree taken together it is obvious that the court meant to treat as controlling the balance of $9,924.72, which was in the account on June 25, 1976. Lawrence claims that this was improper for the reason that “the amount ordered to be paid must have as its basis some item identified as marital property * * * in existence on the date of the trial.”

Lawrence’s position in this regard is unacceptable. His huge withdrawal of approximately $9,500 just two weeks before trial was an obvious ploy to defeat Constance’s rights. The court should look through this transparent maneuver just as courts have always disregarded fraudulent conveyances employed to hinder and delay creditors. This case is akin to Barringer v. Barringer, 514 S.W.2d 114 (Ky.1974) where immediately after a husband found out that his wife was filing for divorce, he proceeded to sell $25,000 in stock and spend it for a Carribean cruise, gambling in Las Vegas, and “entertainment.” The court was unwilling to deprive the wife of the benefit of these funds which the husband had dissipated and held that the trial court properly included $10,500 thereof in the parties’ net worth. Likewise here, the trial court was well justified in disregarding the $9,500 withdrawal made by the husband immediately before trial.

For his final point, Lawrence argues that by reason of the award of the $3,700 in cash, Constance ended up with a disproportionate share of the marital property. The law does not require parity in the division of marital property, nor that it be done with mathematical nicety according to any formula; rather, “the division of marital property is a matter particularly within the discretion of the trial court.” In re Marriage of Vanet, 544 S.W.2d 236, 1. c. 240 (Mo.App.1976). Here the trial court was basically undertaking to equalize the savings accounts held by the respective parties. The total of those two accounts (taking Lawrence’s account at $9,774.72) was $12,-074, and an equal division would have given $6,037 to each. In order that Constance might have the difference between that $6,000 and the $2,300 in her own account, the court very reasonably ordered Lawrence to pay her $3,700 out of his account.

Even aside from that, the court would have been justified in giving Constance substantially more than one-half of the marital property, because of Lawrence’s ownership of the home in his own separate name. It will be remembered that funds from Constance’s separate funds in Southeast State Bank had been expended on that property to the identifiable extent of at least $5,800. Even though that real estate with all the improvements thereto must stand as Lawrence’s separate property, still the fact of his windfall can be taken into consideration in making appropriate division of marital property. Stark v. Stark, supra. In no view can the court’s allowance of $3,700 in cash to Constance be considered inappropriate.

Affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Christopher E. FOSTER, Appellant.
    No. KCD 29161.
    Missouri Court of Appeals, Kansas City District.
    Oct. 11, 1977.

      Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Christopher Foster was convicted by a jury of tampering with a motor vehicle, § 560.175-1, RSMo 1969. The court found Foster was subject to the Second Offender Act, § 556.280, RSMo 1969, and sentenced Foster to four years imprisonment.

On this appeal Foster makes the singular point of error in the admission of records introduced to prove the previous conviction to bring him within the provisions of the Second Offender Act. Affirmed.

Foster does not raise any question concerning the sufficiency of the evidence. He was found by the police officer inside an automobile with a screwdriver trying to pry out the radio. The proof indicated Foster was neither the owner of the automobile nor had permission to remove the radio.

To show a previous conviction, the State introduced Exhibits 1, 2 and 3. Exhibit 1 was the serial transcript from the Division of Corrections which revealed Foster was received on April 12, 1974, with a sentence to expire on January 27, 1979. The record further showed Foster was paroled on March 15, 1976. This record did state the length of sentence was twelve years.

Exhibit 2 was a certified copy of the records of the circuit court of Jackson County which stated Foster pleaded guilty to burglary second degree, and was sentenced to a term of five years confinement and placed on probation for a period of two years. This record indicated imposition of sentence was suspended.

Exhibit 3 was a certified copy of the records of the circuit court of Jackson County of the proceedings by which the probation previously granted Foster was revoked and he was sentenced to five years confinement.

When the State sought to introduce these three exhibits, Foster’s counsel objected on the grounds Exhibit 1 indicated the length of sentence was twelve years, which is beyond the authorized sentence for burglary second degree, and Exhibit 2 stated the imposition of sentence was suspended when the record indicated sentence had already been pronounced. The objection then and now was that such records were inconsistent with themselves on their face and did not provide sufficient evidence from which the court could find Foster was subject to the Second Offender Act.

The State was required to show Foster was convicted of a prior offense punishable by imprisonment in the penitentiary, that he was sentenced therefor, and he was subsequently placed on probation, parole, fined or imprisoned therefor. § 556.280; State v. Blackwell, 459 S.W.2d 268, 272[3] (Mo. banc 1970).

The three exhibits introduced and admitted into evidence show beyond any question the facts necessary to bring Foster within the provisions of the Second Offender Act. The indication on the serial transcript that Foster was received for a twelve-year sentence was an obvious clerical error. The record indicated the correct charge, the correct date sentence was pronounced, the correct date he was received at the penitentiary, the correct date on which his sentence would expire, and the correct date on which he was paroled from the penitentiary. In the face of this, the notation that his sentence was twelve years cannot be anything but an obvious clerical mistake.

The circuit court record which stated imposition of sentence was suspended is also an obvious clerical error. The record reveals Foster had entered his plea of guilty and sentence had been imposed. The record obviously should have stated that execution of sentence was suspended.

Clerical errors will not invalidate otherwise sufficient evidence to show the application of the Second Offender Act. State v. Garner, 538 S.W.2d 937, 942 (Mo.App.1976). In admitting the exhibits the trial court observed the discrepancies noted were obviously clerical errors. There was ample evidence to show Foster was subject to the Second Offender Act.

Judgment affirmed.

All concur.