Johns v. McNabbJohns v. McNabb
- Reporters:
- Before:
- Barrett Commissioner., Westhues Cc., Bohling Cc. (per curiam)
Formerly, 1936 to 1949, the plaintiff and the defendant were husband and wife. The plaintiff wife became enamoured of her neighbor, Virgil Johns, and in June 1949, upon the petition of the husband, the McNabbs were divorced. Since the divorce the wife has married Johns and the
As to the real estate, counsel for McNabb, the former husband, insist that there was no conflict in the testimony and that there is no evidence to support the court‘s finding and decree canceling the contract and setting aside the deeds. He also insists that there is no evidence from which it could be found that Mrs. Johns had any interest in the claimed personal property, hence that phase of the judgment should be affirmed. On the other hand counsel for Mrs. Johns insist that there was evidence in support of her claim to the personalty and that the court erred in denying her claim. As to the finding and decree with respect to the real estate it is urged that this court is bound by the trial court‘s finding and that only questions of law are reviewable upon this appeal. Essentially, however, this is a suit in equity and this court is charged with the duty of reviewing the cause anew, of reviewing the evidence and determining its weight and value, with deference to the findings of the trial court. Thomason v. Beery, 361 Mo. 424, 235 S.W.2d 308, 309; Gardine v. Cottey, 360 Mo. 681, 693, 230 S.W.2d 731, 18 A.L.R.2d 1100.
In our view it is unnecessary, with reference to the real estate, to particularly consider or emphasize any questions concerning fraud or duress in the execution of the contract and deeds. It is doubtful that there is any evidence of fraud and the evidence of duress is largely dependent upon the inferences and implications to be drawn from the circumstantial evidence, the mental distress of the parties and their exigencies during the execution of the contract, the procurement of the divorce and the subsequent execution of one of the deeds. The principal question relative to the real estate, the one briefed and argued here, and the one determinative of this phase of the cause, is whether there was any consideration for the contract and deeds.
After the husband became aware of the relationship between his wife and Johns and their clandestine meetings there were arguments and discussions as to divorce, separation and reconciliation. The husband had consulted a lawyer and on the 7th day of April 1949 the husband and wife appeared at his lawyer‘s office and the lawyer, after making notations as to what the parties desired in their separation agreement, drafted the written contract which the parties then executed. The contract recites their separation and desire to settle their property rights. It then describes the 200 acre farm which “the parties own as tenants by entirety” and stipulates that the wife “agrees to relinquish all of her right, title and interest” in the property and for that purpose agrees to execute
After the execution of the contract and deed and after a frustrated attempt at reconciliation it was finally determined that the husband and wife would separate. The wife had no grounds for a divorce, and some time after the execution of the contract the lawyer filed a suit for a divorce for the husband and the divorce was granted on the 17th day of June 1949. On the same day the wife executed the previously prepared quitclaim deed conveying all her interest in the 200 acre farm to her former husband. The divorced wife and Johns were married in November 1949, the husband was married again in February 1950 and the former wife instituted this action the following April.
As to the consideration for the contract, it must first be borne in mind that upon the granting of the divorce the husband and wife became tenants in common of the 200 acre farm they had previously owned as tenants by the entirety, each owned an undivided one half interest in the land as they both well knew and were advised. Joerger v. Joerger, 193 Mo. 133, 91 S.W. 918; Russell v. Russell, 122 Mo. 235, 26 S.W. 677. By reason of the husband‘s being granted a divorce the wife lost the rights in his property accruing to her by reason of the marriage,
The appellant husband urges, nevertheless, that there was consideration for the contract and deeds not mentioned in the written agreement and that he was entitled to and did prove that consideration and, therefore, the trial court erred in canceling the contract and setting aside the deeds. It is his position that he had a cause of action against Johns for alienating the affections of his wife and that the true consideration for the contract between himself and his wife, resulting in a third party beneficiary contract, Semon v. Illgenfritz, 223 Mo.App. 546, 15 S.W.2d 912, was his agreement with his wife, or his promise to her, that he would not and did not, within the period of limitations, sue Johns in consideration of her transfer to him of her one half interest in the farm.
In this connection we lay to one side any questions concerning the substantive law of contracts, including the parol evidence rule, and whether in the unique circumstances urged there was or could be such a valid third party beneficiary contract. We assume, solely for the purposes of this opinion, the inapplicability of the parol evidence rule and the validity of the contract as urged, and consider only whether the evidence so definitely proves the consideration relied upon that it can be said that the trial court erred in finding this issue against the husband. It is our conclusion in reviewing this case anew, in passing upon the weight and value of the evidence, that the appellant‘s evidence does not so definitely and clearly establish his forbearing suit against Johns as the true consideration for the contract that this court can confidently find the issue contrary to the way the trial court must have found it.
The husband said that his wife‘s principal concern was her freedom and her right to see the children and after their proposed settlement had been discussed at length she wondered how it would all “read in the contract” and she said that they would have the lawyer draw up the contract and “see how about the visiting privileges read and if agreeable with me I will sign the papers today and leave things as they are in the house with the kids if you promise not to sue Virgil Johns, so I promised her I would.” He said that they got ready to sign the contract “and she says and he is supposed not to sue Virgil Johns too” and “I says no, I won‘t sue him.” The wife had not consulted a lawyer and she says that her husband told her that he had consulted a lawyer and had found that he could get a divorce and she could not, that he could take the children from her, take all the property and put her and Johns in jail. She denies that McNabb‘s suing Johns was even discussed and positively testified that the subject was in no way a part of the contract. So thus far there is a direct conflict in the testimony of the parties. There are other circumstances, however, strongly corroborative of the view that McNabb‘s promise not to sue Johns did not constitute any part of the consideration for this contract. The contract was drawn by the husband‘s careful
“Q. What if anything did Cleo say? A. I don‘t remember what he said that he would but all right I don‘t remember he said anything.” In this state of the record we must find as the trial court did that McNabb‘s forbearing suit against Johns was not a part of the consideration for the contract and deeds, and that they were properly canceled and set aside for lack of consideration. In re Wood‘s Estate, supra; Speiser v. Speiser, supra.
Likewise as to the former wife‘s appeal and claim to the personal property, it is indeed significant, except for the living room suite and chickens, that the subject was not mentioned in the separation agreement purporting to dispose of and settle all their property rights. As indicated she lost any marital rights she may have had in his property and she had no other rights in his separate personalty. State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116; 41 C.J.S., Husband and Wife, § 18, page 414. She enumerated certain items of personalty which she said they owned jointly, although she said that there was no agreement between them as to its ownership and for the most part it was merely accumulated during their thirteen years of marriage. Admittedly, when they were married, his father gave him certain livestock. He positively testified, except for the chickens and living room suite, that she did not own or have any interest in the personal property, that they owned no such property jointly and that it belonged to him personally. And in reviewing the cause anew we cannot confidently say that the trial court erroneously adjudged this issue.
Accordingly the judgment of the trial court as to both appeals is affirmed.
WESTHUES and BOHLING, CC., concur.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.