author: STONE, Presiding Judge.

text:
    John A. SNADON, Jr., Almira Snadon Probst, and Rosemary Snadon Taylor, formerly Rosemary Snadon Squires, Plaintiffs-Respondents, v. Ray GAYER and Grace Gayer, husband and wife, L. Paul Herndon and Irma Maxine Herndon, husband and wife, H. R. Gayer and Marjorie Gayer, husband and wife, and William R. Feldmann and Mabel Feldmann, husband and wife, Defendants-Appellants.
    No. 10060.
    Missouri Court of Appeals, Springfield District.
    April 10, 1978.

      Louis W. Cowan, Lilley, Cowan & Love, Springfield, for plaintiffs-respondents.
    Robert L. Stemmons, Jr., Mount Vernon, for defendants-appellants.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   STONE, Presiding Judge.

In this court-tried action, plaintiffs John A. Snadon, Jr., Almira Snadon Probst and Rosemary Snadon Squires (the Snadon heirs), alleging themselves to be the owners of a hereinafter-described tract containing some ten to eleven acres (the 10-acre tract) in Lawrence County, Missouri, sought in Count I a judgment and decree ejecting the parties defendant then in possession of the 10-acre tract, in Count II a mandatory injunction requiring defendants to remove at their expense all buildings and structures on the 10-acre tract, and in Count III damages allegedly sustained by reason of defendants’ occupancy of that tract and erection of certain structures thereon. In their answer, all of the defendants joined issue and asserted that title to the 10-acre tract was vested in defendants William R. Feld-mann and Mabel Feldmann, and defendants Feldmann also sought to quiet title in themselves or, if unsuccessful in doing so, to recover $10,000 as the reasonable market value of permanent improvements made by defendants on that tract. §§ 524.160 and 524.170. On March 20,1975, the court filed a memorandum opinion in which he initially acknowledged having “had great difficulty in deciding this case . . . primarily because it is one of those rare cases where there are considerable equities on both sides” and, after recording findings of fact and conclusions of law, entered a final judgment and decree (a) that the Snadon heirs, as tenants in common, are the owners of a fee simple absolute in the 10-acre tract and are entitled to immediate possession thereof, (b) that none of the defendants have any right, title or interest in or to that tract, (c) that defendants are perpetually enjoined and restrained from interfering with possession of the 10-acre tract by the Snadon heirs, and (d) that defendants Feld-mann “shall forthwith quit said property and deliver possession thereof to [pjlaintiffs [the Snadon heirs], and shall forthwith remove all structures and other property placed by them upon said real estate . . . On defendants’ appeal to this court, we review the case in accordance with the mandate of Rule 73.01, subd. 3, as authoritatively construed in Murphy v. Carrón, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976).

The 10-acre tract was part of a much larger tract containing 1600 acres, more or less, known as the goat ranch, which lay astride the common Lawrence County-Dade County boundary line with roughly half of the total acreage in Lawrence County south of that line and the other half in Dade County north of that line. Plaintiffs herein, John A. Snadon, Jr., Almira Snadon Probst and Rosemary Snadon Taylor, inherited the goat ranch upon the death of their father, John A. Snadon, Sr., in December 1960; and on May 13, 1963, plaintiffs (joined by the spouses of the two Snadon heirs then married) made a conveyance by warranty deed to Ray Gayer and Grace Gayer, his wife, and L. Paul Herndon and Erma Maxine Herndon, his wife (plaintiffs’ Ex. C), in which the property was described as follows:

“That much of the following described property which lies West of Missouri Highway No. 39 in Lawrence County, Missouri: All of the West Half (WV2) of Lots 5 and 6 of the Northeast Quarter (NEVi) of Section 2, Township 29, Range 27; the South Half of the East Half of Lot 6 of the Northeast Quarter (NEA) of Section 2, Township 29, Range 27, except that part of Lot 6 East of the railroad right-of-way; Lots 5, 6, 7, 8 and 9 of the Northwest Quarter (NWV4) of Section 2, Township 29, Range 27; also, all of Lots 5, 6, 8, 9 and the East Half (EV2) of Lots 4 and 7 of the Northeast Quarter (NEVi) of Section 3, Township 29, Range 27, all in Lawrence County, Missouri.” (All emphasis herein is ours.)

The only plat or drawing of the above-described property was defendants’ Ex. 4, which was accepted by all parties as accurately reflecting the relative location of the property lines, Missouri State Highway No. 39, and the railroad right-of-way. In the first drawing, infra, which is a facsimile of Ex. 4, the land admittedly conveyed by the Warranty deed of May 13, 1963 (Ex. C), is designated by //// and the contested parcel (the 10-acre tract) is designated by \\\\. Scholia added by us for clarification are enclosed in parentheses. All other notations appear on Ex. 4. The second drawing is an enlargement of the East Half of Lot 6 and the disputed 10-acre tract as it was described in the deed from defendants Gayer to defendants Feldmann in July 1972.

[See following illustrations]

(Township) 29 Defendant-appellants' Exhibit 4 (Range) 27

33 rods

The genesis of the factual chain of events leading to this litigation was “in late April or early May” 1968, when defendant Ray Gayer of Ash Grove, Missouri, talked with William R. L. Probst, the husband of Almi-ra Snadon Probst, who was one of the three Snadon heirs, in Springfield, Missouri, concerning purchase of the goat ranch. At that first meeting, Gayer indicated that he would pay $35 per acre. A few days later after Probst had contacted the Snadon heirs, he had a second meeting with Gayer at which Mrs. John A. Snadon, Jr., also was present. Probst testified that he then told Gayer “we couldn’t sell the property on the east side of the road [the disputed 10-acre tract] for the same [price per acre] as that part on the west side of the road [Highway 39]”; and, when Gayer responded “that it [the 10-acre tract] wasn’t worth any more than that to him and that he didn’t care if he had it or not,” Probst said “we will keep it then.”

Although the goat ranch had not been surveyed and the precise acreage had not been ascertained, negotiations were conducted on the assumption that the entire ranch contained approximately 1,600 acres. At $35 per acre, the sale price for that acreage would have been $56,000. Probst explained that, when Gayer expressed disinterest in the 10-acre tract, “we took off $350” which reduced the sale price to $55,-650, the sum agreed upon and paid.

Albeit the foregoing suggests that the Snadon heirs would have sold the 10-acre tract if a satisfactory offer had been made, there also was testimony by both Probst and his wife, Almira Snadon Probst, to the effect that the Snadon heirs “would keep the [10-acre tract] for the grandsons — {w]e have five boys between us.”

Defendant Gayer’s testimony in the same evidential area was not altogether consistent either within itself or with the above-noted testimony of Probst. E. g., in the course of direct examination by his counsel Gayer testified:

“Q. In your discussions and meetings with Probst, was any mention made by him or you in regard to this [10-acre tract] on the east side of the road?
“A. There was not.
“Q. Did he mention anything to yon about reserving any portion of that [g]oat [r]anch ?
“A. I think so — I (Interrupted)
“Q. Were you under the impression you were purchasing all of the [g]oat [r]anch?
“A. I was under the impression I was buying all of the Snadon estate land lying west of the Frisco Railroad.”

Whatever preliminary impression any of the parties may have had, on May 13, 1963, the three Snadon heirs and the spouses of the two heirs then married, accompanied by their counsel, assembled with Ray Gayer and L. Paul Herndon in the office of Gayer’s counsel, and on that occasion the Sna-don heirs and their spouses executed and delivered to Gayer and Herndon the warranty deed containing the hereinbefore-quoted property description (the deed).

It will be observed that the initial general language of the description contained in the deed calls for “That much of the following described property which lies West of Missouri Highway No. 39 in Lawrence County, Missouri,” but that the second of the following four specific, self-contained and self-sufficient descriptions, to wit, “the South Half of the East Half of Lot 6 of the Northeast Quarter (NEV-t) of Section 2, Township 29, Range 27, except that part of Lot 6 East of the railroad right-of-way,” is that of the 10-acre tract all of which is East of Missouri Highway No. 39.

The ambiguity thus engendered, although not apparent on the face of the deed, was a latent ambiguity, well-defined as being “an uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing.” 30 Am.Jur.2d Evidence § 1073, l.c. 218. See Meinhardt v. White, 341 Mo. 446, 107 S.W .2d 1061, 1064(4) (1937); Becker v. Workman, 530 S.W.2d 3, 6(1) (Mo.App.1975); Hardin v. Ray, 404 S.W.2d 764, 769-770 (Mo.App.1966); 2 Jones on Evidence § 488, p. 940 (5th Ed. 1958); 9 Wigmore on Evidence (3rd Ed.) § 2472, l.c. 239, and cases collected in the 1977 pocket supp. at pp. 85-90, incl. “‘Such an ambiguity, it is practically agreed by all the cases, may be explained and removed by parol evidence; having been revealed by matter outside the instrument, it may be removed in the same manner.’ 68 A.L.R. Anno. p. 5, quoted with approval in Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061, 1064(4) (1937). And see Walters v. Tucker, 281 S.W.2d 843, 847[1] (Mo.1955).” Becker v. Workman, supra, 530 S.W.2d at 6(1).

In the instant case, certain evidence and permissible inferences drawn therefrom afford substantial support for the trial court’s judgment that the Snadon heirs are the owners as tenants in common of a fee simple absolute in the 10-acre tract. E. g., (a) Probst testified that the sale price of the goat ranch was reduced from $56,000 (1,600 acres at $35 per acre) to $55,650 by deducting $350 ($35 per acre for the 10-acre tract); (b) to the inquiry by his counsel, “Did he [Probst] mention anything to you about reserving any portion of that [g]oat [r]anch,” Gayer responded “I think so — I (Interrupted)” before hasty intervention by his counsel who immediately elicited (without objection) Gayer’s “impression” as to what he was buying, (c) the warranty deed containing the description which engendered an ambiguity was prepared by Gayer’s attorney and, if other means of construction fail, it should be construed against Gayer, and (d) Probst and John A. Snadon, Jr., declared that “probably” in 1965 and again in 1966 (so Snadon, Jr. said) or “probably in ’67 or ’68” (so Probst thought) they had “tried to pay” the taxes on the 10-acre tract at the Lawrence County Collector’s office but had been unable to do so because the goat ranch “was never divided up.”

On the other hand, defendants Gayer et al complain in their brief that resolution of the latent ambiguity in their favor was required by consideration of the evidence in the light of certain rules of construction, e. g., (1) a particular or specific description of land in a deed ordinarily will prevail over a more general description, (2) in construing ambiguous land descriptions in deeds, doubts should be resolved in favor of the grantee and against the grantor, (3) “[p]os-session by the grantee and payment of taxes thereon shows [sic] the lands intended to be conveyed,” and (4) “[wjhere description of land is ambiguous but parties have occupied the property according to one construction, the courts will follow the construction and possession of the property even though for less than the period of limitation.”

Of (1) and (2). We recognize the validity of each of the foregoing rules of construction in appropriate factual circumstances. However, the cardinal rule of construction of written instruments under Missouri law has long been acknowledged to be that “ ‘[a] contract or a deed must be construed as nearly as may be by the intention of the parties, to be ascertained within the four corners of the instrument, the surrounding circumstances and conditions. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 [268(5-7)].’ ” Kansas City Southern Ry. Co. v. St. Louis-S.F. Ry. Co., 509 S.W.2d 457, 460 (Mo.1974). See Kerrick v. Schoenberg, 328 S.W.2d 595, 599(3) (Mo.1959); Warnecke v. Rabenau’s Estate, 367 S.W.2d 15, 18(3) (Mo.App.1963). And, the above-noted rules of construction upon which defendants Gayer et al here rely “are subordinate and always yield to the intention of the parties, particularly the intention of the grantor, where such intention can be ascertained.” 23 Am.Jur.2d Deeds § 159, pp. 205-06 (1965). See Strauss v. J. C. Nichols Land Co., 327 Mo. 205, 211-12, 37 S.W.2d 505, 508(1, 3) (1931); T. McDermott, Land Titles and Land Law § 8.31(1), p. 148 (1954); 23 Am.Jur.2d Deeds § 165, pp. 213-14 (1965).

Of (3). Searching examination of Anderson v. Anderson-Tully Co., 196 F.2d 684 (5th Cir. 1952), the sole authority cited by defendants to this point, discloses that it does not state the proposition to which it is cited and thus its applicability to the point wholly escapes us. “Points presented naked of any citation of authority or which are devoid of applicable citations, are deemed to have been waived or abandoned. State v. Drake, 514 S.W.2d 653, 657(9) (Mo.App.1974); Adams v. White, 488 S.W.2d 289, 294[12] (Mo. App.1972).” State v. Halliburton, 531 S.W.2d 554, 556(5) (Mo.App.1975). See also McMillin v. Sears, Roebuck and Co., 523 S.W.2d 111, 113(4) (Mo.App.1975); In re Estate of James, 459 S.W.2d 536, 540-541(5) (Mo.App.1970); Lomax v. Sawtell, 286 S.W.2d 40, 42-43(4) (Mo.App.1956).

Although we thus need not accord further consideration to this point, in view of subsequent points it may not be amiss to demonstrate at this juncture that the relevant evidence is as to possession discordant and as to taxes equivocal.

Snadons’ Evidence as to possession. During the period from 1965 through 1969 or 1970, witness Probst, the husband of Almira Snadon Probst, worked in Joplin as a relief pharmacist and, in the course of traveling to and from Joplin, and from time to time visiting his mother and other relatives in Everton, he frequently used Highway 39 and passed the 10-acre tract. Mrs. Probst declared that she had driven by that tract some 40 to 50 times after 1963; and her sister, Mrs. Rosemary Snadon Squires, who resided in Texas, had seen that tract five times. None of the foregoing witnesses had observed any clearing, bulldozing, construction or other indicia of possession by anyone.

John A. Snadon, Jr. (Snadon, Jr.), a school teacher by profession and a sportsman by avocation, testified that he was on the 10-acre tract “as least four times a year” — “in each of the four seasons.” The primary purpose of those trips to the tract was to feed and “develop a good crop of prairie chickens and Mexican quail.” In 1968 Snadon, Jr., noticed that one strand of barbed wire had been added to the fence and the “arbor type gate.” Although this engendered some uneasiness, he observed no other change on the 10-acre tract either before or after his discovery of the single strand of barbed wire. In fact, prior to acquisition of the 10-acre tract by the Feld-manns in the latter part of 1972, none of the Snadon heirs or their spouses had seen any person or livestock on that tract or, in fine, had seen any indication or manifestation of actual or constructive possession or use of the 10-acre tract by any other person or persons, excepting only the aforesaid single strand of barbed wire.

Gayers’ evidence as to possession. In 1968, Gayer told Louis Monroe, who owned land adjoining the 10-acre tract, that “[i]f you will fix the fence, you can run your cattle in there.” Monroe testified that he set “a few” new fence posts and “some old ones,” and that he strung “just one roll” of barbed wire which cost “about $9.00.” However, as he explained, the fence did not serve the intended purpose because “they tore it down .... [w]e don’t know who done it.” After it was torn down, Monroe “went around and put it up three times and in three or four days it would be down again.” He also stated that neither he nor any other person to his knowledge had made any use of the 10-acre tract after 1968.

Gayer readily conceded that he had made no improvements on the 10-acre tract “because it didn’t have any improvements to start with.”

From the foregoing chronicled evidence and the record as a whole, the trial court specifically held on this issue of possession (a) “[tjhat from May 1963, till delivery of the deed [from] [defendant Gayer et ux to [defendant Feldmann et ux, there was little done to the property in question although there was a short period of time that cattle grazed on the property with permission of [defendant Gayer and a strand of wire at a cost of $9.00 was placed on existing fence posts” and (b) “[n]o physical possession was taken by them [defendants Gayer et ux and Herndon et ux] of any property, including the subject property [the 10-acre tract], lying East of said Highway 39.”

Snadons’ evidence as to payment of taxes. Probst testified that the Snadons “tried to pay” taxes on the 10-acre tract but that the County Collector of Lawrence County would not allow them to do so — “he told me I would have to pay the entire amount of taxes on the. [g]oat [r]anch because it was never divided up” on the Collector’s records. Snadon, Jr., stated that he had attempted to pay the taxes on the 10-acre tract in 1965 but “was told they were already paid” and again unsuccessfully endeavored to pay the taxes on that tract in 1966. Upon advice of his then attorney, he made no further effort to pay such taxes. Rosemary Snadon Squires testified that her brother, Snadon, Jr., and her brother-in-law, Probst, had unsuccessfully endeavored to pay the taxes on the disputed tract.

Gayers’ evidence as to payment of taxes. Gayer testified that he had paid the taxes on the entire goat ranch, including the 10-acre tract, and substantiated that testimony by introducing into evidence tax receipts for each year from 1963 to and including the last tax year prior to trial. In this connection, it may be noted that Gayer’s payment of taxes on the 10-acre tract did not constitute evidence of his possession of that tract. And, although such payment of taxes by Gayer and Monroe’s pasturing of cattle for a brief period in 1968 were supportive of Gayer’s claim of ownership, those circumstances would have been insufficient, in and of themselves, to establish title in Gayer even if they had been continued for the ten-year statutory period of limitations. § 516.010.

Of (4). Upon the facts detailed in Ashauer v. Peer, 147 S.W.2d 144 (Mo.App.1941), the sole citation to this point by defendants-appellants Gayer et al, the court appropriately applied the principle well-stated in headnote 4, to wit, “[t]he practical construction given an ambiguous description by parties to a deed may be resorted to in ascertaining their intention.” The key word in the quoted excerpt is the plural noun “parties,” as was stated and emphasized thusly in Ohlson v. Batterton, 230 S.W. 110, 113(7) (Mo.1921): “Practical construction, when admissible at all, must be participated in by all the parties.” As the recited evidence bearing on possession demonstrates and establishes, the actions of the respective parties in the case at bar, to wit, Gayer and the Snadons, were consistent with and supportive of their repugnant claims of ownership of the 10-acre tract and their contrary constructions of the 1963 deed on the issue as to whether or not it conveyed that tract. In short, there was no common practical construction of the deed by all of the parties.

This having been a court-tried case, our appellate review is “upon both the law and the evidence as in suits of an equitable nature” with “due regard ... to the opportunity of the trial court to have judged of the credibility of witnesses.” Rule 73.01, subd. 3, paras, (a), (b). And, we are directed to sustain and affirm the judgment' nisi “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carrón, supra, 536 S.W.2d at 32(1). See Hood v. Denny, 555 S.W.2d 337, 345 (Mo.App.1977); Deck and Decker Per. Consultants v. Pigg, 555 S.W.2d 705, 707(5) (Mo.App.1977); Mi-chie v. National Bank of Caruthersville, 558 S.W.2d 270, 272 (Mo.App.1977).

The judgment under review is presumed to be correct and the burden of proving that it is erroneous rests upon appellants Gayer et al [Ryan v. Equitable Life Assur. Soc. of U. S., 560 S.W .2d 884, 886 (Mo.App.1977); Crossgates Home Ass’n. v. Blomquist, 537 S.W.2d 429, 430(1) (Mo.App. 1976); Pallardy v. Link’s Landing, 536 S.W.2d 512, 515(2) (Mo.App.1976)]; and, insofar as the testimony is conflicting, we are to accord deference not only to the trial court’s findings depending on credibility but also to that court’s conclusions. Furthermore, regardless of the theory on which the judgment nisi was based, it should be affirmed insofar as, on the law and the evidence, such judgment properly could have been reached on any reasonable theory.

In resolving the latent ambiguity in the 1963 deed as to whether or not title to the 10-acre tract passed from grantors Snadon to grantees Gayer et al., the cardinal and governing rule of construction is that the intent of the parties, primarily that of the grantor, is determinative and disposi-tive. Our meticulous review of the transcript constrains the conclusion that the evidence presented by the Snadons was altogether adequate to justify and support a finding that they intended to except the 10-acre tract from the land conveyed by the 1963 deed. Accordingly, the holding of the trial court that the 10-acre tract did not pass to defendants Gayer et al under the 1963 deed properly should be, and accordingly is, affirmed.

Defendants Gayer et al also assert that “[t]he trial court erred in its conclusions of law because it failed to consider [defendants’ defense of [ljaches and [ejstoppel and find in favor of [defendants thereon.” Although the doctrines of laches and estoppel were not discussed by name in the memorandum opinion of the trial court, it appears to us that those doctrines were considered and ruled because, in the “Conclusions of Law” section of that opinion, the court held that “there has been no action taken, or failed to be taken, by said [pjlaintiffs to deprive them of title in [the 10-acre tract] or their right of possession thereof” and “[t]hat [defendants, both individually and collectively, have no legal or equitable interest in said property.”

As defendants Gayer recognize, laches and estoppel are equitable doctrines “based solely on [t]he facts presented.” Although the testimony of the opposing parties is contradictory, the evidence adduced by the Snadon heirs concerning possession of the 10-acre tract, much of which has been chronicled supra, indicates (1) that none of the defendants (a) ever resided on that tract or (b) made any significant improvements thereon, or (c) took any action which would have constituted notice of a claim of ownership by adverse possession prior to purchase and improvement of the 10-acre tract by the Feldmanns in 1972, and (2) that plaintiffs continued to view, check and make some use of the 10-acre tract during the period from 1963 to 1972 in like manner and to the same extent as they had done prior to 1963.

Where as here conflicting evidence is presented, we necessarily “ ‘heed the well fixed principle that in court tried cases where the evidence conflicts sharply, appellate courts resolve the conflict by according due deference to the trial court because of its superior opportunity “ ‘ “to observe the conduct and demeanor of the parties and their witnesses and to weigh, evaluate and assess their testimony” ’ ” [Pittman v. Great American Life Insurance Co., 512 S.W.2d 857, 861-862[7] (Mo.App.1974)], and because the trial judge has leave to disbelieve all the testimony of any witness [Southwestern Beil Tel. Co. v. Crown Insurance Co., 416 S.W.2d 705, 711[6] (Mo.App.1967)] or to believe part of a witness’ testimony and reject the rest. North Side Finance Co. v. Sparr, 78 S.W.2d 892, 894[4] (Mo.App.1935).” Long v. Lincoln, 528 S.W.2d 512, 513(3) (Mo.App.1975); Corley v. Kiser, 556 S.W.2d 218, 222 (Mo.App.1977). See Mangan v. Mangan, 554 S.W.2d 418 (Mo.App.1977). Viewed in the light of that directive, the evidence in the case at bar constrains the conclusion that the trial court could and properly did rule that the doctrines of laches and estoppel were inapplicable on the facts here presented.

Having affirmed the trial court’s determination that title to the 10-acre tract was not conveyed to defendants-appellants Gayer et al by the 1963 deed, we pass to the final complaint in their brief that defendants Feldmann are good-faith occupants of said tract entitled to relief under the Missouri so-called “betterment act” or “occupying claimant law” [City of Poplar Bluff v. Knox, 410 S.W .2d 100, 103(7) (Mo.App.1966)] embodied in §§ 524.160, 524.200, 524.-210 and 524.220, which have been reproduced in haec verba as Rules 89.16, 89.20, 89.21 and 89.22. The quintessence of this act, as embodied in § 524.160 and Rule 89.16 is that:

“If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action in favor of a person having a better title thereto, against a person in the possession, held by himself or by his tenant, of any lands, tenements or hereditaments, such person may recover, in a court of competent jurisdiction, compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title.”

Prior to enactment of the above-cited statutes, the common law permitted an owner to recover his land without payment for unauthorized improvements thereon, and one making such unauthorized improvements could not recover their value, even though he had acted in good faith believing he owned the land. This inflexible rule was predicated on the theory that an intruder or occupant should not be paid for improvements not authorized by the owner. Furthermore, the landowner was entitled to recover mesne rents and profits. Kisling v. Yoder, 236 S.W. 860, 867 (Mo. banc, 1921); 42 C.J.S. Improvements § 6, p. 428, and cases cited in note 5.

The chancery courts relaxed this harsh and unjust rule by permitting a defendant in an ejectment action to offset the value of permanent improvements made by him during his occupancy in good faith and with a bona fide belief of this ownership but only to the extent of the rents and profits claimed by plaintiff. In preventing to such extent the unjust enrichment of the true owner, this innovation upon the common law rule merely applied the ancient and venerable maxim that he who seeks equity must do equity. But, in so limiting a defendant’s offset for such improvements, the true owner still would be enriched to the extent the value of such permanent improvements exceeded the rents and profits recoverable by such owner. The Missouri betterment statutes were enacted to foreclose that unjust enrichment; and the provisions of those statutes, being remedial in character, have ever been construed liberally.

After 26 years on his “last job” as “head engineer at McDonald” in St. Louis, defendant William R. Feldmann (Feldmann) retired. “[B]ecause of Stockton Lake, and my daughter’s mother and father-in-law” residing in Miller, Feldmann said that he and his wife decided to settle in that area. On “referral” by a relative, Feldmann contacted Robert J. Gleason, “a real estate, insurance and tax man” who had an office at a highway junction south of Miller, and with whom Gayer theretofore had orally listed the 10-acre tract for sale. We digress chronologically to note Gleason’s graphic trial description of the tract as “[a]ll covered with second growth mostly and it was more or less a flat tract and had a swampy area in there, but it would be suitable for building a lake or pond in that area, and it had to be dozed out.” Returning to Feld-mann’s initial meeting with Gleason, we find that the 10-acre tract then was “priced” to Feldmann “for $2,500.” After paying $50 down and then returning to St. Louis, Feldmann was told in a telephone call from Gleason that “they wanted $3,300 for the property.” Feldmann agreed to pay, and subsequently paid, that sum.

In connection with consummation of the sale of the 10-acre tract, the Feldmanns had an abstract of title examined by an attorney, obtained the title opinion of that attorney, and received a warranty deed to that tract dated and executed by the Gayers in July 1972. This deed contained a “condition that the Grantee [sic] will erect a residence, within 2 years from date, with minimal value of $25,000.00,” and provided ■ that, should Feldmanns fail to do so, ownership of the 10-acre tract would revert to the grantors Gayer. Although Feldmann “didn’t like” this condition, he accepted the deed.

The Feldmanns immediately began to improve the 10-acre tract. Both of them were “interested in hobbies” and “thought [they] would have a ceramic shop and ... a studio to do [their] ceramic work in.” Accordingly, before undertaking to build the required $25,000 residence, Feldmann (a) bulldozed the land on which both buildings would be constructed, (b) obtained permission from the State Highway Department to open, and thereafter did open, a driveway from Highway 39 into the 10-acre tract, and spread white “driveway rocks” on that roadway, (c) drilled a 300-foot well, fully-cased to the ground, and (d) constructed a two-story 12' x 30' frame building with “a bath, shower, stool, kitchen area and hot water heater on the first floor” and with the second floor for use by the Feldmanns as living quarters until the $25,000 residence required by the above-quoted condition in the deed from grantors Gayer was built.

Fortunately for all concerned, the eruption of this litigation on May 3, 1973, forestalled any work or expenditure on the $25,-000 residence. Even so, the Feldmanns spent the aggregate sum of $6,016 for improvements on the 10-acre tract, in addition to the $3,300 purchase price of the land. Feldmann testified positively that all of the foregoing expenditures were made before he had any information or intimation that the Snadon heirs claimed ownership of, or any interest in the 10-acre tract, and that no additional improvements or expenditures were made after the Feldmanns first learned of the Snadons’ claim of ownership. Furthermore, even though Feldmann was actively and continuously engaged in improving the 10-acre tract from and after the purchase thereof in July 1972, he never saw or talked with any of the Snadon heirs or their spouses on that tract or elsewhere until the day before trial in September 1973.

In fact, nothing in the transcript shows or indicates that, prior to completion of the above-noted improvements, the Feldmanns had actual notice or information from which they could and should have acquired knowledge of Snadons’ ownership or claim or ownership. And, neither the testimony of any party to this litigation or any other evidence so much as indicated or suggested that, in making the above-noted improvements on the 10-acre tract, the Feldmanns acted in any wise other than in good faith.

Mindful of the history and purpose of the “betterment act,” recognizing that the essential prerequisites to granting compensation for permanent improvements by an occupying claimant are that the improvements were made by such claimant in good faith and without actual notice of the adverse claim of the true owner, and conversant with the facts presented in the instant case as detailed supra, we are constrained to conclude that the trial court erroneously ruled that the Feldmanns were not entitled under the “betterment act” to recover for the permanent improvements they made on the 10-acre tract.

However, counsel for the Snadons here insist, inter alia, that the trial court’s denial of any relief to the Feldmanns should be affirmed because “in their pleadings they have not properly sought the appropriate relief,” i. e., they prayed judgment “for the reasonable market value of the permanent improvements made by defendants [Feldmann]” on the 10-acre tract, whereas the proper measure of recovery by good-faith occupants is the amount by which the value of the property has been enhanced by the improvements. That indeed is the proper measure of recovery, as we recognized in Watkins v. Floyd, 492 S.W.2d 865, 872(7) (Mo.App.1973), the sole case cited by counsel for the Snadons. However, on remand, defendants Feldmann should be accorded an opportunity to amend their counterclaim, and upon retrial of the issues joined thereon, to present evidence on the proper theory, as was permitted in Watkins v. Floyd, supra, 492 S.W.2d at 872-873.

Since we are setting aside that portion of the trial court’s judgment holding that the Feldmanns were not entitled to recover for their improvements under the “betterment act,” a few comments concerning procedure under that act become appropriate. The “betterment act” provides that an occupying claimant may recover for improvements only after another person has been adjudged to have a superior title in any real action. § 524.160; Rule 89.16. For many years, our courts consistently interpreted § 524.160 and its predecessor statutes as requiring that a claim for improvements by an occupying claimant, who was not claiming title from the one adjudged to have a superior title, be brought in a second and ancillary suit. Nevertheless, it was suggested long ago that “[although the statutes contemplate a separate action for improvements . . there is no reason why the two actions cannot be consolidated.” Anderson v. Sutton, 301 Mo. 50, 62, 254 S.W. 854, 857-58 (banc 1923) (per Graves, J., concurring). And such consolidation of actions has been legitimated and authorized by Rule 55.06(b), which, in pertinent part, provides:

“Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. . . . ”

All of the above-cited cases, in which it was held that the occupying claimant must bring his action for improvements in a second suit, antedate both § 509.070, which was first enacted in 1943 (Laws of 1943 p. 370, § 38), and its counterpart, Rule 55.06(b), which became effective September 1, 1973. Thus the claim by Feldmanns for improvements under the “betterment act” can properly be considered on remand.

Where, as here, separate trials were not ordered or had, there should be only one final judgment which should dispose of all parties and all issues. Accordingly, the judgment nisi is set aside in its entirety and the cause is remanded to the circuit court with the following directions, to wit:

(a) To set aside in its entirety the judgment of the Circuit Court of Lawrence County entered in this case under date of March 20, 1975;

(b) To hold in abeyance, until entry of a single final judgment disposing of all parties and all issues, that portion of the March 1975 judgment finding and decreeing that the Snadon heirs are the owners, as tenants in common, of a fee simple absolute in the 10-acre tract;

(c) To grant permission for appropriate amendment of Feldmanns’ counterclaim to reflect the proper measure of compensation for improvements, and for such further proceedings as may be appropriate to determine the compensation, if any, reasonably allowable to the Feldmanns; and,

(d)To tax all costs against defendants Gayer.

HOGAN and TITUS, JJ., concur.

      . Except as otherwise specifically stated, all statutory references are to RSMo 1969, V.A. M.S., and all references to rules are to Missouri Rules of Civil Procedure, V.A.M.R.

      . The precise acreage in any one or all of the lots cannot be ascertained without a survey because the described land is situated near the Dade County-Lawrence County line, which is a survey correction line.

      . On Ex. 4, the land admittedly conveyed was designated by red slanting lines and the contested 10-acre tract, described supra in italics, was designated by blue slanting lines.

      . All references to Gayer in the singular are to defendant Ray Gayer.

      . At the same time, another deed conveying that portion of the goat ranch in Dade County was executed and delivered to Gayer and Hern-don.

      . Accord: Mock v. Copenhaver, 184 Va. 744, 36 S.E.2d 542, 545(1) (1946); Van Buskirk v. Diamond, 316 Mass. 453, 55 N.E.2d 687, 690(2) (1944); Logan v. Wiley, 357 Pa. 547, 55 A.2d 366, 367-368 (1947); Jones v. Hickson, 204 Miss. 373, 37 So.2d 625, 626-629(2, 3) (1948); Cutright v. Richey, 208 Okl. 413, 257 P.2d 286, 288-289(2-4) (1952).

      . Robson v. United Pacific Ins. Co., 391 S.W.2d 855, 861(6) (Mo.1965); McIntyre v. McIntyre, 377 S.W.2d 421, 426(12) (Mo.1964); Bradley v. Buffington, 500 S.W.2d 314, 319(9) (Mo.App.1973); Engel v. Cord Moving and Storage Co., 313 S.W.2d 173, 176(3) (Mo.App.1958); Bartlett v. National Finance Corp., 228 Mo.App. 789, 73 S.W.2d 451, 457(12) (Mo.App.1934).

        . Boxley v. Easter, 319 S.W.2d 628, 633(6) (Mo.1959); Fancher v. Prock, 337 Mo. 1119, 1124, 88 S.W.2d 179, 182(2) (1935); Whitaker v. Whitaker, 175 Mo. 1, 11, 74 S.W. 1029, 1031 (1903); Rosenberger v. Wabash R.R. Co., 96 Mo.App. 504, 507, 70 S.W. 395(1) (1902); 23 Am.Jur.2d Deeds § 238, p. 278.

      . Mizell v. Osmon, 354 Mo. 321, 334, 189 S.W.2d 306, 311(9) (1945); Grooms v. Morrison, 249 Mo. 544, 554, 155 S.W. 430, 432(8) (1913); Bray v. Conrad, 101 Mo. 331, 337, 13 S.W. 957, 958 (1890); Biddle v. Vandeventer, 26 Mo. 500, 502-503 (1858); Love v. Missouri Union Presbytery, 534 S.W.2d 511, 514(2) (Mo.App.1976); 23 Am.Jur.2d Deeds § 165, p. 212.

      . Other Missouri cases involving the construction of deeds have emphasized the special significance of the grantor’s intention as “[t]he polar star for construction of a deed . . . .” Brumbaugh v. Young, 235 Mo.App. 643, 651, 144 S.W.2d 823, 826(5) (1940). To the same effect, see also Julius v. Buckner, 452 S.W.2d 139, 141(1) (Mo.1970); Lloyd v. Garren, 366 S.W.2d 341, 345(8) (Mo.1963); Bay v. Stout Sign Co., 301 S.W.2d 786, 788(1) (Mo.1957); Davidson v. Davidson, 350 Mo. 639, 643, 167 S.W.2d 641, 643(8) (1943); Goins v. Melton, 343 Mo. 413, 417, 121 S.W.2d 821, 823(5) (Mo.1938); Utter v. Sidman, 170 Mo. 284, 294, 70 S.W. 702, 705 (1902).

      . Brown v. Evans, 182 S.W.2d 580, 583(7) (Mo.1944); Crider v. Meatte, 320 Mo. 474, 485, 7 S.W.2d 691, 695(15) (1928); McVey v. Carr, 159 Mo. 648, 653, 60 S.W. 1034, 1035 (1901); Pharis v. Jones, 122 Mo. 125, 131, 26 S.W. 1032, 1034(3) (1894). See also Conran v. Girvin, 341 S.W.2d 75, 91(18) (Mo. banc 1960); Woodside v. Durham, 317 Mo. 15, 40, 295 S.W. 772, 783 (Mo. banc 1927); Mueller v. Larison, 355 S.W.2d 5, 8(5) (Mo.1962).

      . McVey v. Carr, 159 Mo. 648, 653, 60 S.W. 1034, 1035 (1901); Baxter v. Vasquez, 501 S.W.2d 201, 206 (Mo.App.1973). See Pahler v. Schoenhals, 234 S.W.2d 581, 582(2) (Mo.1950); Horton v. Gentry, 357 Mo. 694, 700, 210 S.W.2d 72, 75(3) (1948).

      . “[W]here the parties have by their acts put a practical construction upon an ambiguous description, such construction . may be resorted to in ascertaining their intention, or, as said by our Supreme Court in Moran Bolt & Nut Manufacturing Company v. St. Louis Car Company, 210 Mo. 715, loc. cit. 736, 109 S.W. 47, loc. cit. 53, ‘Tell me what you have done under a deed, and I will tell you what that deed means,’ or, as the rule is otherwise expressed, the particular construction placed upon a deed by the parties to it is strong evidence of what they intended it to mean. [Citing cases]” Ashauer v. Peer, 147 S.W.2d at 146. To the same effect, see Petty v. Griffith, 165 S.W.2d 412, 416(10) (Mo.1942); Warne v. Sorge, 258 Mo. 162, 169-170, 167 S.W. 967, 969(5) (1914); Blumenthal v. Blumenthal, 251 Mo. 693, 706, 158 S.W. 648, 652(4) (1913); Hubbard v. Whitehead, 221 Mo. 672, 684, 121 S.W. 69, 72(6) (1909).

      . See also Blair v. Blair, 111 Vt. 53, 10 A.2d 188, 191(13) (1940); Mathy v. Mathy, 234 Wis. 557, 291 N.W. 761 (1940); 23 Am.Jur.2d Deeds § 171, p. 218 (1965); 26 C.J.S. Deeds § 93 p. 853 (1956).

      . Ryan v. Equitable Life Assur. Soc. of U. S., 560 S.W.2d 884, 886(2) (Mo.App.1977); Stenzel v. State Department of Revenue, 536 S.W.2d 163, 168(7) (Mo.App.1976). See Mize v. Sims, 516 S.W.2d 561, 564(2, 3) (Mo.App.1974); Pittman v. Great American Life Ins. Co., 512 S.W.2d 857, 858(1) (Mo.App.1974);. Noelker v. Wehmeyer, 392 S.W.2d 409, 413(5) (Mo.App.1965).

      . Drydale v. Kiser, 413 S.W.2d 506, 507(2) (Mo.1967); Simpson v. Spellman, 522 S.W.2d 615, 617(1) (Mo.App.1975); Stallman v. Hill, 510 S.W.2d 796, 798(3) (Mo.App.1974). See Producers Produce Co. v. Industrial Com'n. of Missouri, 365 Mo. 996, 1004, 291 S.W.2d 166, 170(1) (banc 1956).

        . The grantor’s intention is the “pole star” of construction of a deed. Holland v. Holland, 509 S.W.2d 91, 94 (Mo.1974); Kluck v. Mets-ger, 349 S.W.2d 919, 921 (Mo.1961); Boxley v. Easter, 319 S.W.2d 628, 632 (Mo.1959); Pike v. Menz, 358 Mo. 1035, 1043, 218 S.W.2d 575, 579 (1949); Davidson v. Eubanks, 354 Mo. 301, 310, 189 S.W.2d 295, 299, 161 A.L.R. 450 (1945). See also cases cited in note 9.

      .See our brief summary of “Snadons' evidence as to possession,” supra.

      . E. g., Ferguson v. Kindle, 396 S.W.2d 626, 630 (Mo.1965); Sebree v. Rosen, 374 S.W.2d 132, 138(9) (Mo.1964); Henry v. Steward, 363 Mo. 213, 250 S.W.2d 527, 530(4) (1952); Kline v. Vogel, 90 Mo. 239, 245, 1 S.W. 733 (1886); Corby v. Bean, 44 Mo. 379, 380, 381 (1869); County of St. Charles v. Rollings, 537 S.W.2d 806, 808 (Mo.App.1976); Gonseth v. K & K Oil Co., 439 S.W.2d 18, 26(15) (Mo.App.1969).

      . Kisling v. Yoder, supra, 236 S.W. at 867, citing Rev.Laws 1825, p. 344(3); State ex rel. Shaul v. Jones, 335 S.W.2d 468, 470(1) (Mo.App.1960). See Stump v. Hornback, 109 Mo. 272, 278-279, 18 S.W. 37, 38-39 (1891); Dothage v. Stuart, 35 Mo. 251, 254-255 (1864); Kugel v. Knuckles, 95 Mo.App. 670, 674, 69 S.W. 595, 596 (1902), citing 1 Terr.Laws 464, Ch. 163 (1816) and Justinian’s Institutes, Bk. 2, Tit. 1, § 30.

      . Gray v. Clement, 296 Mo. 497, 513-514, 246 S.W. 940, 944 (1922); Cox v. McDivit, 125 Mo. 358, 361, 28 S.W. 597, 598 (1894); Michalski v. Grace, 151 Mo.App. 631, 633, 132 S.W. 333, 334(1) (1910); Fuller, Improvements — The Right to Recover for Improvements to Real Property Under Missouri Law, 18 U.M.K.C.Law Review 203, 204 (1949-50).

      . “The controlling fact in determining whether [the occupying claimant is entitled to relief under the ‘betterment act’] is whether the improvements were made by him in good faith, believing himself to be the real owner, or whether they were made by him in bad faith, in pursuance of a fraudulent scheme to circumvent the owner.” Blank v. Aronson, 187 F. 241, 246 (8th Cir. 1911). See Johnson v. Stull, 303 S.W.2d 110, 119(13) (Mo.1957); Gray v. Clement, 296 Mo. 497, 513-14, 246 S.W. 940, 944(8) (1922); Eisberg v. Phillips, 197 Mo.App. 329, 194 S.W. 1075 (1917); Smith v. Mount, 149 Mo.App. 668, 672-74, 129 S.W. 722, 724(1-3) (1910); Devine v. Charles, 71 Mo.App. 210, 213 (Mo.App.1897).

      . Michalski v. Grace, 151 Mo.App. 631, 636, 132 S.W. 333, 334(4) (1910); Richmond v. Ashcraft, 137 Mo.App. 191, 199, 117 S.W. 689, 692(2) (1909); Sires v. Clark, 132 Mo.App. 537, 538, 112 S.W. 526, 527 (1908); Kugel v. Knuckles, 95 Mo.App. 670, 675, 69 S.W. 595, 596(2) (1902); Marlow v. Liter, 87 Mo.App. 584, 589 (1901); Pierce v. Rollins, 60 Mo.App. 497, 508-09(6) (1895) (on motion for rehearing); Hill v. Tissier, 15 Mo.App. 299, 306(1) (1884).

      . Accord: McAboy v. Packer, 353 Mo. 1219, 1226, 187 S.W.2d 207, 210(8) (1945); Rains v. Moulder, 338 Mo. 275, 286, 90 S.W.2d 81, 86(15) (1936); City of Poplar Bluff v. Knox, 410 S.W.2d 100, 103(7) (Mo.App.1966); 41 Am.Jur.2d Improvements § 22, p. 495; 42 C.J.S. Improvements § 11a, pp. 446-448.

      . Kisling v. Yoder, 236 S.W. 860, 867 (Mo. banc 1921); State ex rel. Jiner v. Foard, 251 Mo. 51, 56, 157 S.W. 619, 620 (banc 1913); Fairchild v. Creswell, 109 Mo. 29, 18 S.W. 1073, 1075 (1892); Foote v. Clark, 102 Mo. 394, 408, 14 S.W. 981, 983 (1890); Henderson v. Langley, 76 Mo. 226, 228 (1882); Connecticut Mut. Life Ins. Co. v. Carson, 186 Mo.App. 221, 233, 172 S.W. 69, 72 (1914).

      . State ex rel. Highway Com’n v. Galloway, 292 S.W.2d 904, 911(15, 17) (Mo.App.1956), aff'd, 300 S.W.2d 480 (Mo.1957); Sutton v. City of St. Joseph, 265 S.W.2d 760, 768(8) (Mo.App.1954). See Barlow v. Scott, 85 S.W.2d 504, 519(11) (Mo.1935); Barr v. Nafziger Baking Co., 328 Mo. 423, 436, 41 S.W.2d 559, 565(14) (1931); Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 417, 41 S.W.2d 543, 556(23) (1931).

      . West v. Witschner, 428 S.W.2d 538, 548 (Mo.1968); DeMoulin v. Kissir, 446 S.W.2d 162, 166 (Mo.App.1969); Ely v. Parsons, 399 S.W.2d 613, 619 (Mo.App.1966); Johnson v. Hunter, 398 S.W.2d 449, 452-53 (Mo.App.1966); Chandeysson Electric Co. v. Wollweber, 398 S.W.2d 12, 16 (Mo.App.1965).

      . The judgment entry now under review prompts us to add the caveat that, in drafting the final judgment, care should be taken to identify each of the parties as his or her name appears in the amended pleadings.

      . In so limiting the proceedings on remand, we have not considered Feldmanns’ right of action against the Gayers predicated on their warranty deed executed in July 1972, because such right of action was neither raised in the pleadings nor in the trial. However, it may not be amiss to record here our concurrence in the opinion expressed by the trial court that “they [the Feldmanns] do have [a] cause of action for damages against co-defendant[s] Gayer for breach of warranty.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samuel LONGMEYER, Defendant-Appellant.
    No. 38792.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.

      Huck & Kasten, Inc., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

This is an appeal from a judgment of conviction entered by the Circuit Court of the City of St. Louis whereby the defendant-appellant, Samuel Longmeyer, was sentenced under the provisions of the Second Offender Act to ten years in the Department of Corrections for the offense of assault with intent to kill with malice. §§ 559.180, 556.280, RSMo. He appeals. We affirm.

On appeal the appellant emphasizes alleged inconsistencies in the state’s case and the improbability that the appellant was the perpetrator of the offense and thereby challenges the sufficiency of the “credible” evidence to make a submissible case.

The state’s evidence consisted of the testimony of Mr. Frank Mills, the victim, the arresting and investigating officers and the hospital records of the victim. The defense consisted of the testimony of the defendant, who denied the assault, and the defendant’s mother, wife of the victim. Certain physical evidence was also introduced by the state.

The jury could reasonably find the following. The victim, Mr. Frank Mills, testified that on the afternoon of December 1, 1973, he returned home from his place of employment. Mr. Longmeyer was there when he arrived. After a few “words” concerning Longmeyer’s mother and brother-in-law, Mr. Mills requested that Long-meyer leave the house. Not long after-wards the defendant returned to the house —“He entered the back door. He kicked it down.” At that time Mills was in the middle room of the three-room residence sitting on the bed. When Longmeyer “kicked in the back door and entered,” he had a “shotgun” in his hands. He took two or three steps into the house and “then fired the shotgun.” He fired one shot. The pellets hit Mills in the eye. Mills retaliated, and “reached over in the corner and got my rifle and fired.” The rifle was in the corner “sitting right by the bed.” Mills “fired a shot out of the rifle.” “I pointed — he is going out this way (indicating) and I fired like this (indicating) but see, I don’t know which way I pointed it but — because that blood was coming out.” Mills indicated that Longmeyer “took the shotgun with him” when he left. As a result of the injuries, Mr. Mills has a glass eye.

On cross-examination Mr. Mills testified that no “argument” occurred between him and Longmeyer, but did admit that there were words or an “argument” “about his mother messing around with her son-in-law and he [son-in-law] knocked her down and he [Longmeyer] wanted me to take it up and I [Mills] said I didn’t have nothing to do with it.” He also testified that there was an “argument” and he kicked a knife out of Longmeyer’s hand. Also, on cross-examination Mills testified that he didn’t know whether his rifle was loaded, but said, “I had to load the gun.” “They [the bullets] was right up on the shelf and I reached and I loaded that in five minutes, or in less than five minutes.” He also admitted that he had two other rifles in the house but denied having any handguns. “I don’t have nothing but them three rifles.” Also, on cross-examination Mills said, “ . . . well, listen, I’ll tell you like it was. Now, he took two steps from the door and got inside the door good and then he shot me and then he broke and run out.” The police were called and Mr. Mills was taken to the hospital. When the police arrived, Mills was bleeding and blood was on the floor and bed. An investigation was made and a police evidence technician traced a bullet that had pierced the wall separating the kitchen. Police also recovered shotgun pellets embedded in the front door. A live shotgun shell was recovered from the back porch. “Shotgun wadding” was found in the bedroom. Hospital records indicated that Mills was admitted that day with a diagnosis of shotgun blast to the face and right shoulder and was discharged the next day with a further complication of a globular rupture of the right eye.

Some months later the appellant was arrested for the offense.

At trial Longmeyer testified in his own defense. He admitted that he went to the Mills’ residence to “talk to my mother.” He admitted having an argument with Mills and Mills started “kicking.” Longmeyer was kicked in the stomach. He said he left about 4:20 p. m. He denied returning to Mills’ home or returning with a shotgun. He denied firing a shotgun at Mr. Mills. He testified that he was chased out of the house and out the back door. He went to a friend’s house to watch a ballgame. He also testified that Mills had “hand guns” and “shot guns” in the house. He admitted having a little pen knife in his pocket and pulled it out after Mills advanced.

Mrs. Marie Longmeyer Mills, defendant’s mother, testified on defendant’s behalf. The thrust of Mrs. Mills’ testimony was that when Mr. Mills came home her son was there. They had an argument and Mills “started kicking.” She told Longmeyer to leave and Mills chased Longmeyer out the door, “on out around the yard.” She saw Mills “getting his guns loaded, putting them on the bed.” She saw Longmeyer get into his car and leave. She testified that Mills “always had a whole lot of long guns” and “hand guns.” While Mrs. Mills was sitting in a chair in the house, she saw Mills “shooting and all the doors was standing open and I saw him shooting.” She did not see the person who shot at Mills but did see Mills “bleeding.”

Two young men were at the house, but they did not testify at trial.

At the close of the evidence the defendant moved for a judgment of acquittal which was overruled.

Appellant’s sole point on appeal is that the court erred in submitting the case to the jury “because the state failed to adduce sufficient credible evidence that the defendant was the perpetrator of the crime.”

The appellant seizes upon certain inconsistencies in the victim’s testimony, inconsistencies between the victim’s testimony and defense witnesses, the improbability of the events of the shooting and the lack of credibility of the victim’s testimony. Because of these, appellant contends that there was insufficient evidence to make a submissible case. Appellant points out (1) that Mr. Mills first stated that there was no argument but then admitted an argument and that he kicked a knife out of Longmeyer’s hand; and (2) that the rifle he fired was loaded before he shot but then stated that he had to load the rifle and that he did so in five minutes or less. Appellant also complains (1) that the sequence of events as testified makes it improbable for the appellant to have remained standing the kitchen while Mills loaded the gun in five minutes or less and then fired at appellant; (2) that such testimony makes it improbable to show that appellant was the one who shot the victim; and (3) that such testimony is unbelievable. Appellant also seizes upon the discrepancies in the victim’s testimony that he had no handguns when Mrs. Mills testified that he did. Appellant points out that a shotgun was never located and that no paraffin tests were made of him and no fingerprints were found.

Therefore, because of these discrepancies and the improbability of the state’s evidence, appellant contends that there was insufficient evidence to submit the cause to the jury.

We disagree and hold that appellant’s point is without merit.

There are certain fundamental principles governing the contention raised. In determining whether there is sufficient evidence to support a criminal conviction, the appellate court considers as true the evidence most favorable to the state and all the favorable inferences reasonably to be drawn therefrom. Evidence and inferences to the contrary are disregarded. Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence is sufficiently substantial to make a submissible case. State v. Gamache, 519 S.W.2d 34, 39 (Mo.App.1975); State v. Cain, 507 S.W.2d 437, 440-441 (Mo.App.1974). Review of the evidence is limited to a determination of whether substantial evidence supports the verdict. State v. Wilson, 544 S.W.2d 859, 864 (Mo.App.1976). Substantial evidence means evidence from which the trier of facts reasonably could find the issue in harmony therewith. See State v. Taylor, 445 S.W.2d 282, 284 (Mo.1969). It is not our function to weigh the evidence, but it is our duty to pass upon the sufficiency of the evidence. Our review is limited to determining whether there was sufficient evidence from which reasonable persons could have found the defendant guilty as charged. State v. Johnson, 510 S.W.2d 485, 487 (Mo.App.1974). A defendant is not entitled to a judgment of acquittal because of discrepancies or conflicts in the testimony of the state’s witnesses. State v. Cox, 478 S.W.2d 339, 341 (Mo.1972). Conflicts in the evidence, the determination of the credibility of the witnesses and the weight to be given their testimony are within the peculiar province of the jury. State v. Kellick, 521 S.W.2d 166, 167 (Mo.App.1975). The fact that a witness’ testimony may to some extent be contradictory does not prevent its constituting substantial evidence. Inconsistencies in testimony are questions for jury resolution. State v. Hodges, 537 S.W.2d 886, 887 (Mo.App.1976); State v. Collett, 526 S.W.2d 920, 925 (Mo.App.1975). The testimony of a single witness may be considered sufficient although the testimony may be inconsistent. State v. Platt, 496 S.W.2d 878, 880-881 (Mo.App.1973). The principle that uncorroborated testimony of a victim of a sexual assault is insufficient to support a conviction where the testimony is inconsistent is not applicable to these proceedings. Platt, 496 S.W.2d at 880; Cf. State v. Donnington, 246 Mo. 343, 151 S.W. 975, 979 (1912). To find reversible error here so as to reverse the overruling of the motion for judgment of acquittal, we would have to conclude as a matter of law that the evidence was not sufficient to sustain a judgment of conviction. State v. Thompkins, 515 S.W.2d 808, 812 (Mo.App.1974).

This we cannot do. Here there was definite evidence by Mr. Mills that the defendant returned to his home, kicked the door in, took two or three steps and shot Mr. Mills with a shotgun. This testimony of the victim is sufficient to submit the case to the jury. The credibility of the witness and the weight of the testimony are for the jury to determine. State v. Williams, 376 S.W.2d 133, 136 (Mo.1964).

The inconsistencies in the testimony— those relating to whether there was an argument, where and when Mills’ rifle was loaded, whether Mills had handguns in his home and the improbability of the defendant standing and observing the events while Mills loaded the rifle — are all matters for the jury to determine. State v. Spraggins, 368 S.W.2d 407, 410-411 (Mo.1963); State v. Washington, 383 S.W .2d 518, 522 (Mo.1964); Platt, 496 S.W.2d at 881; State v. Berry, 526 S.W.2d 92, 95 (Mo.App.1975); State v. Pinkus, 550 S.W.2d 829, 838 (Mo.App.1977). None of these inconsistencies or alleged improbability goes to the vital and material issue that the defendant, as Mr. Mills testified, broke into his residence and shot him. See State v. Parker, 324 S.W.2d 717, 722 (Mo.1959).

Appellant relies for reversal on our recent 2-1 divisional opinion of State v. Talbert, 524 S.W.2d 58 (Mo.App.1975). That decision is not dispositive of the cause here. There the victim did not see the defendant shoot; a witness heard a shot but not from the defendant’s car; no one saw the defendant with a gun or saw him make a shooting motion; there was no evidence as to who really shot the victim. Furthermore, the physical contortion was incompatible with accurate marksmanship. Talbert is clearly distinguishable from the facts here and is not controlling.

We hold that under all the circumstances there was sufficient substantial evidence to make a submissible case and that the trial court did not err in overruling the appellant’s motion for judgment of acquittal.

The judgment is affirmed.

All the Judges concur.


author: KELLY, Judge.

text:
    STATE ex rel. SIGNAL L. P. GAS, INC., Relator, v. Hon. James L. SANDERS, Judge, etc., Respondent.
    No. 39048.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 9, 1978.

      Coburn, Croft, Shepherd & Herzog, Joseph A. Krai, III, St. Louis, for relator.
    James M. Martin, Rau & Martin, St. Louis, for respondent.
   KELLY, Judge.

In this proceeding in Prohibition the Relator, Signal L. P. Gas, Inc., seeks an order prohibiting the Respondent Circuit Judge from proceeding further in Cause No. 55492 F, Esther Lorraine Curtis v. Signal L. P. Gas, Inc., et al. For reasons hereinafter stated the Preliminary Writ of Prohibition hereinbefore issued is quashed.

Esther Lorraine Curtis, plaintiff in the cause in the Circuit Court of the City of St. Louis, is the widow of Herman Paul Curtis and the mother and Next Friend for the six minor children surviving Mr. Curtis. The petition in the Circuit Court proceeding is in eight counts, but Relator is a named defendant in Count I and Count V only. In Count I damages are sought for the alleged wrongful death of Mr. Curtis and in Count V damages for personal injuries and medical expenses incurred as a result therefrom are sought because of the alleged negligence of Relator which plaintiff contends caused the fire and explosion taking the life of Mr. Curtis as well as the injuries to Mrs. Curtis and the minor children.

Relator, in the Circuit Court proceeding, filed a motion to dismiss or in the alternative to quash service of summons on the grounds that the Circuit Court lacked jurisdiction of the person of the defendant Signal L. P. Gas, Inc., on the grounds that it was a nonexistent corporation because it had been dissolved prior to the commencement of this lawsuit and because service of summons and petition on C. T. Corporation System, Inc., was insufficient because said corporation was not a registered agent for Relator at the time of said service.

Petition for Writ of Prohibition filed in this court on March 16, 1977, is in two counts. In Count I Relator contends that at the time the cause of action in the Circuit Court was commenced it had ceased to exist as a corporate entity from and after December 20, 1974, and therefore the Circuit Court never acquired personal jurisdiction to hear and determine the cause of action on its merits. Relator alleges further that on March 1, 1977, the Respondent entered an Order overruling its Motion to Dismiss or in the alternative to Quash Service of Summons and unless he is prohibited from proceeding further in the case by an Order out of this court will do so despite the fact he lacks jurisdiction in the cause over this Relator. In Count II Relator alleges that the wrongful death action pleaded in Count I of plaintiff’s petition in the Circuit Court is barred and was so barred at the time of the filing of the petition in the Circuit Court because it had not been commenced within two years after the cause of action for wrongful death accrued; that Respondent overruled its alternative motion to dismiss on those grounds and, unless prohibited by an Order of this court, will proceed with said cause despite the fact that its Motion should have been sustained.

On the same day Relator filed its Petition for Writ of Prohibition, the Respondent filed a Motion to Dismiss same accompanied by suggestions. On March 18, 1977, the Preliminary Rule ordering the Respondent to show cause why a final judgment in Prohibition should not be entered issued. Respondent’s Return was filed on May 11, 1977, and Relator’s Reply thereto, on June 2, 1977. With the issues thus joined the Relator filed its brief. Respondent has not favored us with a brief.

With respect to Count I of Relator’s Petition for Writ of Prohibition wherein it contends that the Circuit Court lacks jurisdiction over it by reason of its merger, the brief filed in its behalf devotes itself to arguments relative to lack of jurisdiction over Burmah L. P. Gas, Inc., the surviving corporation, and the question whether by amendment plaintiff in the Circuit Court might join said surviving corporation and relate back said amendment and substitution of parties to the date of the filing of the plaintiff’s petition on October 24, 1975.

There is no evidence before this court at this time that the said Burmah L. P. Gas, Inc., has been joined as a party defendant in the Circuit Court proceeding nor that plaintiff has filed any motion in the Circuit Court to so amend her petition and substitute said corporation as a party defendant.

The crucial issue with respect to Count I of Relator’s Petition for Writ of Prohibition is: May a foreign corporation holding a certificate of authority to conduct its business in the State of Missouri, be sued for its alleged tortious conduct committed within the boundaries of the State of Missouri upon a citizen of said State causing personal injuries and medical expenses incurred therefrom, when said foreign corporation, in the time between the date of the alleged tortious conduct and the date on which a suit is filed seeking damages therefor, has merged with another foreign corporation under the laws of the state of the survivor corporation?

Signal L. P. Gas, Inc., was an Oklahoma corporation; Burmah L. P. Gas, Inc., a Delaware • corporation. They merged, we believe, under the laws of Delaware.

Relator, in its brief, has not cited a single case dealing with this issue.

Furthermore, the entire thrust of Relator’s brief with respect to Count I of its Petition for Writ of Prohibition, is stated at page 10 of its brief as follows:

“This case law, relator contends, shows conclusively that Burmah L. P. Gas, Inc., has not been brought within the jurisdiction of the Court. Under the law, Signal L. P. Gas, Inc., and Burmah L. P. Gas, Inc., are distinct and separate persons. Burmah L. P. Gas, Inc., has not been named or served as a party defendant.” (Emphasis supplied).

Further, at p. 11 of the brief, at the conclusion of the arguments in support of Count I of its Petition, Relator states:

“Having dealt with the question of the lack of jurisdiction over defendant Bur-mah L. P. Gas, Inc., the next issue is to determine whether the plaintiff is, at this time, to be allowed leave to amend the Petition as to Count One such that it relates back to October 24,1975, the date after which the statute of limitations bars any wrongful death action.”

In oral argument counsel for Relator, in response to a question by the Court, stated that this was a case of first impression in this State and that the controlling statute, “Section 351.450” R.S.Mo. 1969, V.A.M.S., had not been construed under these circumstances. He stated that the Missouri statute was patterned from the Illinois statute and there was an Illinois case construing the Illinois statute but he had not cited that case in his brief. Nevertheless, neither did he cite any other cases on this point.

In our opinion, Relator occupies an anomalous position here. On the one hand it argues that the Circuit Court cannot obtain personal jurisdiction over it because by reason of its merger it ceased to exist. Yet, it would argue that for the purpose of precluding an amendment to the petition in the Circuit Court to substitute the surviving corporation it has sufficient existence and standing to raise issues connected to that proceeding, should it take place, for and on behalf of the surviving corporation, despite the fact said surviving corporation is not at the time a party to the Circuit Court suit. We do not render advisory opinions on what we would do should this take place; rather, we presume that the trial court would follow the law when the issue is presented.

It is not for all purposes that the existence of a corporation which has been absorbed by merger into a surviving corporation comes to an end. Domestic corporations which merged pursuant to the provisions of § 351.410 R.S.Mo.1969 V.A.M.S., in effect when Relator merged with Burmah L. P. Gas, Inc., were, nonetheless, subject to suit in the name of the absorbed corporation on “any claim existing or action or proceeding pending by or against (them)” prior to the merger. Section 351.450 R.S.Mo. 1969, V.A.M.S. In those cases where one or more foreign corporations merge with one or more domestic corporations under the law of the state of incorporation, and whether the surviving corporation will do business in Missouri, the surviv- or corporation is required by § 351.458 R.S.Mo. 1969, V.A.M.S. to file with the Secretary of State of Missouri an agreement that it may be served with process in the State of Missouri and to appoint irrevocably the Secretary of State as its agent to accept service of process in any proceeding based upon any cause of action against any such domestic corporation arising in this state prior to the issuance of the certificate of merger by the Secretary of State. There are, however, no Missouri statutes specifying what effect the merger of a foreign corporation holding a certificate of authority to do business in Missouri with another foreign corporation which, at the time of merger, holds no certificate of authority to do business in this state, has upon any claim existing against the constituent corporation, at the time the merger takes effect and the constituent corporation is absorbed into the survivor corporation.

Relator has not briefed this issue crucial to our decision in this case and for that reason we conclude that Relator has abandoned it as a grounds for Prohibition.

With respect to Count II of Relator’s Petition for Writ of Prohibition we were informed when this case was argued that the wrongful death count—Count I—of plaintiff’s petition in Circuit Court had been dismissed as to other defendants on the grounds that it had not been commenced by the widow and minor children within one year from the date of death of Mr. Curtis. Section 537.080 R.S.Mo. 1969, V.A.M.S.; State ex rel. Kansas City Stock Yards Company v. Clark, 536 S.W.2d 142 (Mo. banc 1976). Under those circumstances the relief sought by Relator with respect to that Count of plaintiff’s petition in Circuit Court can best be attained by an appropriate motion in the Circuit Court.

For the foregoing reasons the Preliminary Rule in Prohibition is hereby ordered quashed.

SIMEONE, C. J., and GUNN, J., concurs.

      . See Lawrence v. Williamson Ford, Inc., 13 Ill.App.3d 880, 300 N.E.2d 636 (1973).


author: SMITH, Judge.

text:
    Anthony BAILEY, Appellant, v. Daniel E. HILLEMAN, Respondent.
    No. 39012.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.
    David G. Dempsey, Shifrin, Treiman, Bamburg & Dempsey, Clayton, for appellant.
    John M. Goodwin, St. Louis, for respondent.
   SMITH, Judge.

Plaintiff appeals from a judgment against him based upon a jury verdict finding for the defendant in an intersection collision case. On appeal plaintiff challenges the giving of an instruction on contributory negligence and the failure of the trial court to order a new trial because of the alleged misconduct of the jury.

Plaintiff, a State Highway Patrol officer, was injured when his vehicle was struck by the defendant’s automobile as plaintiff was making a left turn from the eastbound exit ramp of 1-270 into the northbound lane of Brown Road in St. Louis County. Defendant was going south on Brown Road at the time of the collision. Plaintiff’s evidence was that plaintiff was proceeding on a left turn arrow at approximately 11 p.. m. when he was struck by defendant. Defendant contended that he had a green light through the intersection. Plaintiff’s verdict directing instruction submitted defendant’s negligence in violating the traffic signal. Defendant’s contributory negligence instruction was based upon plaintiff having violated the traffic signal, which plaintiff contends was unsupported by evidence. We disagree.

Defendant testified the light for him was green. A state patrol officer who arrived at the scene testified he checked out the traffic signals for fifteen minutes and they were working properly. While it was undisputed that'the traffic light for northbound Brown Road traffic was red when the collision occurred, defendant testified that this was because there was a left turn arrow as well as the green light for southbound Brown Road traffic. It is true there was no direct testimony that plaintiff had a red light. We think it is a reasonable inference, however, that if the lights were working properly they did not show green to traffic coming from two different directions on an intersecting course. There was evidence to support the submission.

Plaintiff’s contention of jury misconduct is based upon the affidavit of William Moran, a juror in the case. That affidavit is set out in entirety in the margin.

In his motion for new trial plaintiff alleged that the jury misconduct consisted of two jurors having gone to the intersection during jury deliberations to observe and time the sequence of the electric signal and reporting the results of their investigation to the other jurors. Obviously, nothing in the Moran affidavit supports this charged misconduct. The trial court therefore had no evidence before it upon which to grant the new trial for the reasons alleged in the motion for new trial.

On appeal plaintiff asserts that the affidavit does establish a different jury misconduct, the conveyance to the jury of the independent knowledge of facts by three jurors. No contention is advanced on appeal concerning the grouping and discussing by the jurors in the hall referred to in the latter part of the affidavit. We must determine whether the affidavit sufficiently demonstrated jury misconduct that the trial court was required to grant a new trial as a matter of plain error.

Initially it should be pointed out that a juror may not be allowed to impeach the jury’s verdict because of the misconduct of a juror unless the respondent fails to timely and properly object. Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430 (1948) [9]; Thorn v. Cross, 201 S.W.2d 492 (Mo.App.1947) [6]. Here respondents admit that the record does not reflect any timely or proper objection to the affidavit of Moran. In such posture the affidavit may be considered and is to be accorded its natural probative value. Initially we note that the affidavit is greatly lacking in specificity. It does not reveal the names of the offending jurors, in what manner they “indicated” that the map drawing was based upon independent knowledge, what importance the map of the intersection and traffic lights had as contrasted to the sequence of those lights, and whether the juror who discussed the light sequence based that on independent knowledge or upon the evidence. We also note that the affidavit is factually inaccurate. There was in fact evidence that the northbound and southbound lights were not in sequence and the evidence that they were in sequence was not uncontradicted. There is no other evidence of record to establish jury misconduct. We do not find that the affidavit was sufficient factually to require the trial court to find jury misconduct and prejudice to plaintiff. See, Rogers v. Steuermann, 552 S.W.2d 293 (Mo.App.1977); Thorn v. Cross, supra, Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S.W.2d 154 (1941).

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . “AFFIDAVIT
      I, William Moran, to the best of my knowledge, information, and belief state that I was one of the twelve jurors selected to hear the above styled case from January 17 through January 20, 1977; that one of the issues debated by the jury during their deliberations was which one of the parties had a red light at the time of the accident in question; that there was testimony during the trial that when the northbound traffic on Brown Road at the location of the accident in question had a red light, the southbound traffic on Brown Road at the same location also had a red light; that there was no testimony whatsoever that the aforementioned northbound and southbound lights were not in sequence; that during the jury deliberations the first night at least three members of the jury drew maps of the intersection and the electric signals which they indicated was based upon their own independant (sic) knowledge and acquaintance with the intersection and not based on the evidence presented in the case; that at least one of these jurors stated that the electric lights for north and southbound traffic were not in sequence and that even if the light • for northbound traffic was red, it was not necessarily true that the light for southbound traffic was also red despite the uncontradicted evidence to the contrary presented during the trial; that prior to resuming deliberations the next day at approximately 11:15 A.M., many of the jurors were grouped out in the hall and discussing the case not only not in the presence of the twelve jurors, but not in the presence of all the eleven jurors that were present; that the information furnished by the abovementioned (sic) three members of the jury relating to their own independent knowledge and acquaintance with the intersection had a substantial and significant effect upon the jury’s arriving at a verdict on behalf of the defendant.
      /s/ William Moran
      I, William Moran, upon my oath, state that the above and foregoing statements are true and are correct to the best of my knowledge, information, and belief.
      /s/ William Moran
      Subscribed and sworn to before me this 28th day of January, 1977.
      /s/ Frank W. Jansen. Jr.
      Notary Public
      My commission Expires:
      11-19-77


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Curtis McCLINTON, Defendant-Appellant.
    No. 39120.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.

      Thomas R. Motley, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Curtis McClinton appeals from a conviction entered in the circuit court of the City of St. Louis for the offense of stealing from a dwelling house in violation of § 560.156, RSMol969. Appellant was found guilty after a trial by jury, and received a sentence of five (5) years imprisonment according to § 560.161, RSMol969.

On appeal, appellant attacks the sufficiency of the evidence; therefore, a recitation of the facts presented at trial is necessary. On October 23, 1976, approximately 7:40 p. m., appellant was driving south in the 4100 block of Newstead Avenue with his headlights off. Officer Rodney Williams, of the St. Louis Police Department, seeing this traffic violation, pulled behind appellant and turned on his red lights. Appellant pulled to the curb, got out of his car and walked back to Officer Williams’ vehicle. At the officer’s request, appellant produced his driver’s license. After examining the driver’s license, the officer got out of his vehicle and approached appellant’s car. In the car the officer observed two passengers as well as a television set, two suede coats, and some ladies’ jewelry, all of which was partially concealed under a blanket in the back seat. Officer Williams then ordered the two passengers out of the car. While the officer was looking at the items in the back seat, one of the passengers, Stanley Smith, ran away. In answer to the officer’s inquiry as to the ownership of the property in the back seat, the appellant indicated that it belonged to Smith, and that he had been helping Smith move the items from the apartment of Smith’s sister, Frances Smith.

At Officer Williams’ request, the appellant directed the officer to Frances Smith’s apartment located at 4557A Clarence Avenue. We noted that this apartment was only four blocks from the location where Officer Williams had stopped appellant. Officer Williams then questioned Smith’s sister, Ms. Frances Smith, who stated that her brother had been at her apartment earlier, but that he was not moving any of her clothing or furniture, and that he had no property of his own at her apartment to move. Ms. Smith further stated that she did not own any of the items found in the back seat of appellant’s car. At this point, the officer arrested appellant for driving without headlights and took him into custody-

Later that evening, the police received a call from Frederick L. Jones, who lives next door to Ms. Smith at 4557A Clarence Avenue, informing them that his apartment had been burglarized. According to Jones’ testimony, he was gone from his apartment from 6:00 p. m. to 10:00 p. m., that evening. Upon his return he found his front door pried open and that a television set, some clothes and some ladies’ jewelry were missing. Jones identified all of the items seized by police from appellant’s car as those items taken from his apartment. Appellant offered no evidence in his behalf, and at the end of the case made a motion for judgment of acquittal, which was denied.

On appeal, appellant argues that the trial court erred in failing to sustain his motion for judgment of acquittal because the inference of recent, joint possession of stolen property, which arose when the stolen property was found in the back seat of appellant’s car, was insufficient to support the submission of the case to the jury.

In Missouri an inference of guilt is permissible from the unexplained possession of property recently stolen in a burglary, and the inference exists both as to the offense of burglary and of stealing. State v. Cobb, 444 S.W.2d 408, 414 (Mo.1969); State v. Fields, 442 S.W.2d 30, 35 (Mo.1969); State v. Kennedy, 396 S.W.2d 595, 598 (Mo.1968). In addition, the possession of recently stolen property which would support an inference of guilt may be a joint possession of the accused and others, and such possession need not be separated from all possession by others. State v. Heitman, 473 S.W.2d 722, 726 (Mo.1971); State v. Cobb, supra at 412. However, where the possession of recently stolen property is shown to be joint with another, there must be something else in the evidence to connect the defendant with the offense. State v. Mayfield, 520 S.W.2d 680, 683 (Mo.App.1975); see also State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973); State v. Fields, supra, at 35.

Applying these general principles to the presented facts, we hold that the evidence was sufficient to make a submissible case for the jury. The fact that the joint possession was recent and unexplained is patent. Moreover, there are other facts which connect appellant with the offense charged. Appellant, by his own admission, stated to Officer Williams that the threesome had just left a party which was allegedly in progress in Ms. Smith’s apartment, which is located next door to the victim’s apartment. Also, Ms. Smith told Officer Williams that her brother had been at her apartment earlier. The appellant was stopped four blocks from the scene of the crime at the approximate time the crime had occurred. Thus, appellant was placed at the scene of the crime, with the opportunity to commit the crime, at the time the crime allegedly occurred. These facts are sufficient to circumstantially link appellant to the commission of the crime.

In Missouri, similar circumstantial facts have been held to be sufficient to make a submissible case involving joint possession. In State v. Cobb, supra, appellant was a passenger in an automobile which was stopped by police in close proximity to a drug store which had just been burglarized. The ear in which Cobb had been riding was seen by the police leaving the drug store’s parking lot. The car quickly accelerated, ran across a ditch, and stalled in the middle of a nearby highway. At this point, the police stopped the car and found a carton of prescription drugs which had been stolen from the drug store. The supreme court held that a submissible case based on inferences of joint possession had been made where the appellant was shown to have been at the scene of the crime and had an opportunity to commit it, as well as being a passenger in the car transporting the stolen property. Cobb, supra, at 414. Similar facts have been so presented here.

Appellant has cited State v. Watson, 350 S.W.2d 763 (Mo.1961), in support of his argument. This case, however, has been severely questioned, even by its author, and its precedential value is doubtful. State v. Mayfield, supra, at 683; see also State v. Heitman, supra, at 727 and Cobb, supra, at 414. Even if Watson were on sound ground, its facts are distinguishable. In Watson, there were no facts presented which placed appellant at the scene of the crime, nor which showed that appellant had an opportunity to commit the crime. Thus, in Watson, there were no additional facts, beyond the joint possession of the stolen goods, to connect the appellant to the commission of the crime. Here, such facts are present.

Judgment affirmed.

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


author: CLEMENS, Presiding Judge.

text:
    Jeanette BOYKINS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38851.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.
    Devereaux & Stokes, Michael D. Stokes, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Asst. Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant (defendant) has appealed from an order denying her Rule 27.26 motion to vacate sentence without a hearing. We affirm.

A jury found defendant guilty of possession of a Schedule I controlled substance. Section 195.017,195.020, RSMo.1975 Supplement. The court entered judgment and sentenced defendant to 15 years’ imprisonment. Her conviction was upheld on appeal. See State v. Boykins, 541 S.W.2d 90 (Mo.App.1976). Thereafter, defendant filed a pro se motion to vacate, alleging: “I was not represented by counsel at my preliminary hearing. 6th Amendment grounds. I could not defend myself at my preliminary hearing. If my right to counsel had been observed, the charges against me might have been dismissed. My lawyer could have prepared a much better defense at this hearing.” The trial court found the motion was vague, conclusory and indefinite, and denied it without an evidentiary hearing and without appointing counsel. On appeal, defendant contends the trial court erred in failing to appoint counsel immediately upon the filing of her Rule 27.26 motion and that she was thereby denied due process.

Although we agree defendant’s motion was conclusory there is a more basic reason for denying it. The state tried defendant on a substitute information in lieu of indictment. Rule 23.02 specifically provides no preliminary hearing is required in such an instance. That obviated the need to appoint counsel.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Defendant was tried on a substitute information in lieu of indictment. Her brief admits a preliminary hearing was never held because the state proceeded by substitute information so a preliminary hearing was not required. See Sec. 544.250, RSMo.1975, Suppl.

      . If trial court reached correct result but for wrong reason, the appellate court must affirm. Ricketts v. Kansas City Stockyards of Maine, 537 S.W.2d 613[1] (Mo.App.1976); Webb v. St. Louis County Natl. Bank, 551 S.W.2d 869[8] (Mo.App.1977).