Martin v. Martin
| Decision Date | 03 July 1944 |
| Docket Number | 38881 |
| Citation | 181 S.W.2d 544,352 Mo. 1243 |
| Parties | Efton Martin et al., Appellants, v. Sadie Martin et al |
| Court | Missouri Supreme Court |
Appeal from Stone Circuit Court; Hon. Tom R. Moore, Judge.
Affirmed.
E. G Wadlow for appellants.
(1) Land descends to children subject to the dower of widow which the widow may assign, and widow has the right of quarantine until dower is assigned in the mansion house. Secs. 306, 318 320, 366, 338, R.S. 1939. (2) Widow has right to homestead until youngest child attains the age of twenty-one or until remarriage or death of widow. Sec. 612, R.S. 1939. (3) On death of husband his widow becomes natural guardian of infant child, and if she claims homestead rights, becomes trustee of all the children regardless of their age and her assignees become trustees. 65 C.J., 962, 963; Guy v. Mayes, 138 S.W. 510; Johnson v. United Railway, 219 S.W 38; Loud v. Union Trust Co., 281 S.W. 744; Horigan Realty Company v. First Natl. Bank, 273 S.W. 772; Elliott v. Landis Machine Co., 139 S.W. 356; Hyndes v. Hyndes, 202 S.W. 387. (4) Persons occupying fiduciary relation, buying at forced sale by third person, become a trustee for the remainderman. Boggart, Trusts & Trustees, sec. 486; Broder v. Concklin, 53 P. 699; Van Epps v. Van Epps, 9 Paige, 237. (5) This action seeks to declare a constructive trust as distinguished from a resulting trust. Perry on Trusts, sec. 127; Roberts v. Opp, 56 Ill. 34; Musham v. Musham, 87 Ill. 80. (6) A purchaser from a trustee, who has acquired the trust property, stand in no better position than the trustee. Perry on Trusts, pp. 95, 863; Haughton v. Pierce, 203 Mo. 723. (7) This action is not barred by the Statutes of Limitations. Elliott v. Landis Machine Co., 139 S.W. 356; 34 Am. Jur., pp. 198, 199, 200; Rice v. Waddell, 168 Mo. 99; Gannon v. Moore, 83 Ark. 196, 104 S.W. 139; Harris v. Brady, 112 S.W. 974; Powell v. Koehler, 52 Ohio St. 103. (8) The dower interests of the widow does not merge in the homestead, but is suspended during its existence and the homestead rights of the children cannot be impaired by abandonment of the widow. Christman v. Linderman, 202 Mo. 605; Phillips v. Presson, 172 Mo. 24; Bank v. Sapp, 73 S.W.2d 294. (9) The payment by Parsons of the note executed by S. A. Martin is a voluntary payment. Natl. Enameling & Stamping Co. v. St. Louis, 40 S.W.2d 593; Ferguson v. Butler County, 247 S.W. 795, 26 A.L.R. 1519. (10) The payment of the balance of $ 3100.00 testified to by Parsons of the note shown as defendants' Exhibit No. 2 was a voluntary payment, because the same was barred by the Statutes of Limitation. Sec. 1017, R.S. 1939. (11) Defendant Parsons had notice of the claim of the plaintiffs, either actual or inferred. Rittenhouse v. St. Louis-S.F. Ry. Co., 252 S.W. 945; Voelpel v. Phoenix Mutual Life Ins. Co., 183 S.W. 679; Holmes v. Doe Run Lead Co., 223 S.W. 772; Barrett v. Davis, 16 S.W. 377; Natl. Bank of Commerce v. Francis, 246 S.W. 326; Richmond v. Ashcraft, 117 S.W. 689.
Rufe Scott and A. L. Wright for respondents.
(1) The purchase of land at a mortgage foreclosure sale, by a life tenant will be deemed to have been made for the benefit of the remaindermen if they contribute their proportion of the purchase money within a reasonable time thereafter. Such rights on the part of the remaindermen will be denied after a lapse of years and after the property has been improved and has greatly increased in value. Cockrill v. Hutchinson, 135 Mo. 67. (2) The cause of action of the remaindermen accrues at the time the property is purchased by the life tenant at the foreclosure sale. Cockrill v. Hutchinson, 135 Mo. 67. (3) The purchase of land by a co-tenant at a mortgage foreclosure sale vests legal title in co-tenant, subject to the rights of other co-tenants to share in the benefits of the purchase of the outstanding title by contributing within a reasonable time, their share of the money expended in acquiring the outstanding title. Willoughby v. Brandes, 317 Mo. 544. (4) Where owner of land together with his wife mortgaged the land during his lifetime, and after his death the mortgage was foreclosed for the debt, and the land purchased at a foreclosure sale by holder of note who two days later conveyed to widow, and said widow borrowed the necessary money from a third party to pay the mortgage debt, then conveyed the land to another who assumed the mortgage debt against the land placed thereon by the said widow, and paid the same, none of said conveyances were nullities or void, the only right of the husband's heirs was to share in the benefits of the purchase money and the expense of the foreclosure sale within a reasonable time. Willoughby v. Brandes, 317 Mo. 544. (5) Where the life tenant buys the land at a mortgage foreclosure sale, and the mortgage debt is to be regarded as a debt for which the remaindermen as well as the life tenant are liable, then the remaindermen will be subject to losing their estate unless they contribute within a reasonable time. Souders v. Kitchens, 345 Mo. 977. (6) The change in the situation of the parties, the improvement of the property and all other elements must be considered by the court in its determination of whether or not the remaindermen have offered to contribute within a reasonable time. Cockrill v. Hutchinson, 135 Mo. 67. (7) Plaintiffs are barred by laches. 10 R.C.L. 396; Cockrill v. Hutchinson, 135 Mo. 67; Robey v. Smith, 261 Mo. 192; Ready v. Smith, 170 Mo. 163.
Dalton, C. Bradley and Van Osdol, CC., concur.
Action in equity to quiet title and partition 120 acres of described real estate in Stone county. The court found for defendants on both counts and entered judgment accordingly. Plaintiffs have appealed.
The real estate in question was owned by one Jesse Thomas Martin (hereinafter referred to as Martin), who died intestate December 4, 1919, leaving his widow and eleven children, ten of whom were minors. Ten of these children are now plaintiffs in this cause and a minor son of a deceased son is one of the defendants.
The petition (count 1) charged that at the time of Martin's death the said real estate and other real estate was subject to a deed of trust to secure the payment of a $ 3600 note; that Martin's widow, the owner of the said note and the trustee in the deed of trust "entered into a conspiracy to cheat and defraud the heirs of Jesse Thomas Martin"; that in furtherance of the conspiracy said conspirators caused the deed of trust to be foreclosed and the real estate to be conveyed to said widow, who executed a deed of trust thereon for $ 3586.90; that, thereafter, the said other real estate was sold for $ 5600 and the entire indebtedness paid; and that, thereafter, in furtherance of the conspiracy the said conspirators caused the described real estate to be conveyed to other persons and by them to certain of the defendants, who knew the facts from the records and so "became trustees of all of such interests . . . for the use and benefit of the heirs of Jesse Thomas Martin, deceased." Plaintiffs asked a decree of title in the heirs of Jesse Thomas Martin, deceased, an accounting of rents and profits, less amounts paid out for taxes, maintenance and improvements, and a declaration that the defendants in possession of the described real estate held as tenants and trustees for the heirs of Martin.
The answer of the defendants in possession of the described real estate (to count 1) denied any fraud, claimed to be the owners and innocent purchasers for value, alleged the making of permanent and lasting improvements and pleaded estoppel, limitations and adverse possession. They further alleged that the foreclosure was for the protection of the widow and children; that the land remained subject to the lien of the original debt of Martin; that said defendants acquired the lands subject to said original indebtedness and paid the same off; and that plaintiffs had full knowledge of the facts for years and had not contributed or offered to contribute any part of the purchase price. Said defendants prayed to be adjudged the fee simple owners of the described lands. The reply was a general denial. The count in partition was in the usual form.
At the time of Martin's death, the land records indicated that the described real estate was subject to two deeds of trust: (1) a deed dated September 12, 1914, executed by Martin and wife, which secured a note for $ 2083.54 payable to S. P. Wilson; and (2) a deed of trust dated July 15, 1919, which secured a note of Martin and wife for $ 3600 payable to S. P. Wilson. This latter deed of trust appeared as a first lien on an 80 acre tract, which Martin had purchased from one King on that date for $ 3600, and as a second lien on the 120 acres, which was the homestead of deceased. It is conceded that these funds were advanced by Wilson to Martin, although Mrs. Martin signed the notes with her husband.
On October 28, 1920, following Martin's death, the deed of trust dated July 15, 1919, securing the $ 3600 note, was foreclosed and the real estate was conveyed by trustee's deed to Martin's widow for a recited consideration of $ 3850. The trustee's deed further recited that the conveyance was subject to a "deed of trust for $ 1763 which is a balance on $ 2082.54 note shown M page 348." The deed of trust dated September 12, 1914, was recorded in Book M at page 348. On October 28, 1920 (the date of the trustee's deed), Mrs. Martin (the widow and grantee in the trustee's deed) conveyed 40 acres out of the 80 acres, supra, to a Mrs. Emma Ellis for $ 2000 and the deed of trust dated September 12, 1914, recorded in Book M at page 348, was satisfied of record on October 30 1920. On December 13, 1920, Mrs. Martin deeded a 20 acre tract out of the 80 acres, supra...
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