Montgomery v. Clarkson
585 S.W.2d 483
Mo.
1979
Check Treatment

Elizabeth Ann MONTGOMERY, Plaintiff-Appellant, v. Bessie CLARKSON, Defendant-Respondent, and Charles I. Stewart et al., Defendants.

No. 61221

Supreme Court of Missouri, En Banc.

Sept. 11, 1979.

585 S.W.2d 483

This claim is without merit. In

,
, was among the cases overruled. Although the specific statute at issue in Stanhope was § 452.345 rather than § 452.325, the Court‘s holding that, “trial courts are henceforth empowered to punish by imprisonment for contempt the failure of a person to comply with orders for payment of maintenance and child support * * *”
, is equally applicable to § 452.325.

Appellant finally asserts that Mo.Const. Art. I, § 13, is violated. Article I, § 13 provides, “That no ex post facto law, nor law impairing the obligation of contracts * * * can be enacted.” Appellant implies that the obligation of contracts clause has been violated in the present case.

is cited.

Andrus is of no help to appellant. In

this Court held that the State did not abridge the right to contract by enacting a statute declaring suicide to be no defense to an action on an insurance policy.

Article I, § 13, prohibits the State from enacting a law which impairs the rights of parties to an existing contract. See

;
; 1 Antieau, Modern Constitutional Law § 3:26-3:32; 1 Cooley‘s Constitutional Limitations (8th ed.) 582-586. In the instant case, the statute at issue was enacted and made effective prior to the time at which appellant and respondent entered into the maintenance agreement and prior to the dissolution of their marriage.
, cited by appellant, is distinguishable in that the contract at issue in that case was entered into before the effective date of the statute at issue. Additionally, § 452.325 does not require that the parties to a maintenance agreement make the agreement enforceable as a judgment. It requires only that they make their intentions on this issue clear and explicit. We find no violation of Art. I, § 13.

We note appellant‘s contention that it “is undisputed by the parties herein that the treatment throughout this case of the wife‘s award of maintenance is contractual and not decretal.” He has filed a supplemental transcript to demonstrate that when appellant previously moved in the trial court to modify the maintenance award, because of changed circumstances, respondent opposed the motion on the grounds that the maintenance as allowed by the court, “is a contractual agreement between petitioner and respondent, and is not modifiable by this Court * * *.” Apparently, the trial court did not rule on appellant‘s motion to modify. In any event, we cannot rule the question on the record before us.

The order of August 23, 1978, overruling the motion to quash is affirmed.

All concur.

Richard N. Brown, Brown & Casey, Brookfield, for plaintiff-appellant.

Harry L. Porter, Marceline, for defendant-respondent.

Jack D. Lukehart, Brunswick, Robert G. Smith, Brookfield, for defendants.

DONNELLY, Judge.

This is a suit for partition of land in Chariton County, Missouri.

On January 28, 1943, a Warranty Deed to the land was executed, naming as grantees “James E. Stewart and Nancy E. Stewart, jointly.” Nancy E. Stewart was the niece of James E. Stewart. Both grantees are deceased. James E. Stewart died in February, 1944. Nancy E. Stewart died August 16, 1976.

The trial court denied partition, and found that the deed, dated January 28, 1943, “vested title in said premises in James E. Stewart and Nancy E. Stewart as joint tenants with the right of survivorship; that Nancy E. Stewart survived the said James E. Stewart; that Nancy E. Stewart was the sole owner of said premises at the time of her death; that Bessie Clarkson acquired title to said premises under the will of Nancy E. Stewart.”

An appeal was taken to the Missouri Court of Appeals, Western District, where the judgment of the trial court was reversed. On March 13, 1979, this Court ordered the cause transferred. It will be decided here the same as on original appeal. Mo.Const. Art. V, § 10.

Section 442.450, RSMo 1978, is involved here. It reads as follows:

“Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.”

In

, the testatrix devised “to my two sons James Conda Reynolds and John W. Reynolds the following described real estate * * *.” This Court held that the will devised the property to James and John as tenants in common and not as joint tenants and said:

“It is essentially true that the intention of the testator shall be sought and effectuated in construing and enforcing wills, but this rock-ribbed rule of construction, so strictly and faithfully followed in this state, is subject to this very vital qualification, to wit, that it must not conflict with any inflexible rule or requirement of law. Such is the case here. The statute [now § 442.450] has declared the effect of a conveyance or devise of real estate in the event that the grant or devise does not expressly declare that a joint tenancy is intended. No such intention is expressly declared in this will, * * *. It is therefore not within the power or province of the courts, under any rule of interpretation, or to carry out any unexpressed intention of the grantor or testator, to construe such a grant or devise to be a joint tenancy, for the statute says it is a tenancy in common. Grantors or testators who do not wish the statute to apply, and to create only a tenancy in common, are given the right to so arrange it; but they must expressly declare in the grant or devise that a joint tenancy is intended, or else the courts must construe it to be a tenancy in common.

There is no distinction under the statute between a deed and a will in this regard.”

In

, the testator devised the property in suit to his “said daughters Julia and Victoria jointly.” This Court, relying on the predecessor of § 442.450, held “that by the will of Hyam H. Cohen, his daughters Julia and Victoria became tenants in common of the property in controversy * * *.”

In

, the deed in question, on its face, created a tenancy in common. This Court held that what is now § 442.450 does not prevent reformation of a deed so as to create a joint tenancy, and said:

“The statute (section 2273, R.S.1919) does not abolish joint tenancies, but defines the manner in which they can be created. The policy opposed to survivorships (

) tends against a construction of an ambiguous conveyance such as would result in the creation of a joint tenancy, but in no way does either statute or policy render joint tenancies unlawful; nor does the statute prevent the reformation of a deed so as to cause it to create a joint tenancy, if that was the contract or intent of the parties affected, and the proof is sufficiently strong of facts which put the reforming power of equity in motion.”

In

, this Court cited Lemmons and Cohen with approval and said:

“Sec. 3114, R.S.1929 [now § 442.450], did not abolish joint tenancies.

;
;
;
. But Sec. 3114 makes it plain that a joint tenancy can be created in grantees or devisees, who are not executors, trustees or husband and wife, in one way only, and that is to expressly say so, by using the term ‘joint tenancy.’ The statute says ‘expressly declared.’ The word expressly is the adverb; express is the adjective, which means ‘directly and distinctly stated; expressed, not merely implied or left to inference.’ Webster‘s New International Dictionary, Second Ed.”

In taking this position, Missouri is sustained by a majority of the cases. In 2 American Law of Property, § 6.3, at page 13, statutes such as § 442.450 are referred to as follows:

“There is some disagreement in the cases applying these statutes as to what will be a sufficient affirmative expression of intent to create a joint tenancy. Thus, a conveyance to two persons ‘jointly’ has been held in some cases to be sufficient, but the better view, sustained by a majority of the cases, is that the word ‘jointly’ is equivocal and is as often used, at least by those unlearned in the law, to describe ownership in common as it is to describe the technical estate of joint tenancy with right of survivorship.”

We have reexamined the existing law (Mo.Const. Art. V, § 10) and reaffirm the holdings in Lemmons, Cohen and Ashauer. Insofar as

conflicts with those holdings, it should no longer be followed.

The trial court erroneously applied the law.

.

The judgment is reversed and the cause is remanded for partition.

BARDGETT, C. J., RENDLEN and SEILER, JJ., and HENLEY and FINCH, Senior Judges concur.

WELLIVER, J., concurs in separate concurring opinion filed.

MORGAN, J., not sitting.

HIGGINS, J., not participating because not a member of the Court when cause was submitted.

WELLIVER, Judge, concurring.

I concur in the result of the principal opinion. I do not believe that

, conflicts with the principal opinion and I would reserve the right to reform a deed in an appropriate case where there is clear, cogent and convincing evidence that the language of the deed did not represent the intent of the parties at the time of the drafting of the instrument. There is no such evidence in this record.

COLLECTOR OF REVENUE OF the CITY OF ST. LOUIS, Missouri, Plaintiff-Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS (Parcels 24-069 and 24-070), Defendant-Appellant.

No. 60950

Supreme Court of Missouri, En Banc.

Sept. 11, 1979.

585 S.W.2d 486

Bruce Nangle, Clayton, for appellants.

James Wilson, Jack L. Koehr, James E. Crowe, St. Louis, for respondent.

Jackson County, Mo., Jon Reginald Gray, Kansas City, for amicus curiae.

SEILER, Judge.

This is an appeal from the judgment of the circuit court of the City of St. Louis foreclosing tax liens under the Municipal Land Reutilization Law (MLRL), §§ 92.700 et seq., RSMo 1978. Appellant contends that the trial court erred in overruling the appellant‘s motion to dismiss on the ground that MLRL is constitutionally defective on its face for failing to provide for personal service of process on owners of tax delinquent property1 or for an affidavit stating that the owner is unavailable. This court

Notes

1
In
, the same law was challenged on the ground that the provision that failure of the collector to mail notice would not invalidate the proceedings was unconstitutional. The challenge was overruled, it being held that the taxpayer, under the circumstances of the case, had no standing to raise the issue.