Kleimann v. Gieselmann

• Citation: 21 S.W. 796,114 Mo. 437
• Parties: Kleimann v. Gieselmann et al., Appellants
• Decision Date: 28 February 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 796

114 Mo. 437

Kleimann v. Gieselmann et al., Appellants

Supreme Court of Missouri, Second Division

February 28, 1893

Certified from St. Louis Court of Appeals.

Affirmed.

James Carr for appellants.

(1) The court erred in admitting in evidence the certified copy of the deed of trust. Sufficient foundation was not laid therefor. (2) The minor appellants had and have a homestead right in the property, and nothing their mother could do could prejudice them, and hence it was error to permit respondent to testify in regard to Mrs. Gieselmann paying him rent. Kochling v. Daniel, 82 Mo. 54; Roberts v Ware, 80 Mo. 363; Kaes v. Gross, 92 Mo. 648. (3) There was no agreement between Augustus Reinhardt and Mrs. Werk, by which he was to assign or transfer the note held by him to her. She acquired no right to the lien of his deed of trust by contract. Bunn v. Lindsay, 95 Mo 250. Mrs. Werk was an entire stranger to the debt and deed of trust given by John Henry Gieselmann to secure Justus Reinhardt; and when she loaned the $ 1,600 to Mrs. Anna Gieselmann to pay off said debt she was a volunteer, and was not entitled to be subrogated to the rights and security of Augustus Reihnart, the owner of said debt and security. Volunteers are not entitled to subrogation. Ins. Co. v. Middleport, 124 U.S. 534; Woolridge v. Scott, 69 Mo. 669; Evans v. Halleck, 83 Mo. 376; Norton v. Highleyman, 88 Mo. 621; Wade v. Beldmeier, 40 Mo. 486; Shinn v. Budd, 14 N.J.Eq. 234; Kitchell v. Mudgett, 37 Mich. 82; Woods v. Gibson, 17 Ill. 218. Payment of a debt by a stranger, which is secured by mortgage, deed of trust or other lien on property, absolutely extinguishes the debt and operates as a satisfaction of the security, unless he has been compelled to pay the debt of a third person in order to protect his own rights or to save his own property. Sheldon on Subrogation, sec. 3. Shinn v. Budd, 14 N.J.Eq. 234; Guy v. Du Uprey, 16 Cal. 195; Wolff v. Walter, 56 Mo. 295; Webster & Goldsmith's Appeal, 86 Pa. St. 403; Wallace's Estate, 59 Pa. St. 401; Sanford v. McLean, 3 Paige, 117. A homestead cannot be devised away from minor children. Revised Statutes, 1879, sec. 3693; Kaes v. Gross, 92 Mo. 648; Kochling v. Daniel, 82 Mo. 54; Roberts v. Ware, 80 Mo. 363.

Lubke & Muench for respondent.

(1) Respondent is entitled to be subrogated to the former rights of Augustus Reinhardt in this mortgage, because at the request of the debtors his assignor, Mrs. Werk, took up that mortgage. His rights are those of "conventional subrogation." Jones on Mortgages, sec. 874; Sheldon on Subrogation, secs, 247, 248; Lockwood v. Marsh, 3 Nev. 138; Candle v. Murphy, 89 Ill. 352; Wilson v. Brown, 13 N.J.Eq. 277; Carter v. Taylor, 3 Head (Tenn.), 30; Peltz v. Clark, 5 Pet. 482; Wheeler v. Willard, 44 Vt. 640; Hoy v. Bramhall, 4 C. E. Green (N. J. Eq.), 563; Walker v. King, 44 Vt. 601; Wolff v. Walter, 56 Mo. 295; Valle's Heirs v. Fleming, 29 Mo. 152; Norton v. Highleyman, 88 Mo. 624. (2) There was a mutual mistake of fact and law. Both parties supposed that Mrs. Werk would receive the same degree of security held by Reinhardt. Equity will not permit these defendants to gain an unconscionable advantage through such mistake. By granting the relief prayed, the defendants are clearly placed in no worse position than they formerly occupied. To deny such relief would inflict a serious wrong upon an innocent party who acted in the best of faith. Griffith v. Townley, 69 Mo. 13; Nelson v. Betts, 21 Mo.App. 219.

OPINION

Burgess, J.

This suit was instituted in the circuit court of the city of St. Louis, where it resulted in a judgment for defendants, from which plaintiff appealed to the St. Louis court of appeals, by which court the decision of the circuit court was reversed. The cause was certified to this court by the court of appeals on the ground that the decision rendered therein by that court is, in the opinion of one of the judges, in conflict with the decision of this court in the case of Griffith v. Townley, 69 Mo. 13.

The questions presented by the record in this case are sufficiently stated by Judge Rombauer (45 Mo.App. 497), which are as follows:

"The object of the petition is to obtain a decree declaring that a certain deed of trust executed by John H. Gieselmann is a subsisting lien on certain real estate, and that the plaintiff is the owner of the lien, and to foreclose the lien in this proceeding. The petition states that this deed of trust was executed by Gieselmann to secure the payment of a note of $ 1,500 to one Reinhardt; that the said Gieselmann afterwards died, leaving Anna Gieselmann, his widow, and the other defendants, his children and heirs at law, and leaving also a last will, duly probated on September 9, 1882, whereby he bequeathed the property in question to his said widow and to the heirs of her body forever; that, at the time of his death, said Gieselmann occupied a part of the buildings on the land as a homestead, the residue being occupied by his tenants; that the debt and interest amounting to $ 1,600 remained unpaid on or about January 5, 1884, and said Reinhardt threatened, and was entitled to foreclose the deed of trust, unless his debt be secured to him, and the defendant, Anna Gieselmann, being executrix of the mortgagor's last will and representing herself to one Fredericka Werk as the devisee in fee of the equity of redemption in said real estate fully empowered to pass and grant title to the fee in said property and to renew said mortgage, and to keep the lien thereof in force and effect, applied to said Fredericka Werk to pay and furnish to Reinhardt the amount of the mortgage debt and caused her to believe that upon her furnishing such money said deed of trust could and would be kept alive by a new mortgage of said Anna Gieselmann alone.

"That, relying upon and believing such representations, said Fredericka Werk without intention on part of herself or Mrs. Gieselmann to release, arrest or defeat the lien of the deed of trust, furnished the sum of $ 1,600 then due to Reinhardt, and thereupon received another and new deed of trust executed by Mrs. Gieselmann, extending such debt for two years, but without releasing the original deed of trust.

"That this new deed of trust was executed for the sole benefit of the widow and heirs of John Gieselmann, deceased, with the intent of all parties thereto to merely keep and enforce, continue and extend the debt and lien on the old deed, and of keeping the equity of redemption therein from being foreclosed and lost.

"That on April 30, 1888, the secured debt remaining still unpaid, Mrs. Fredericka Werk caused the property to be advertised and sold pursuant to power of sale given, became the purchaser at the sale, had title conveyed to her by the trustee, and said Anna Gieselmann thereupon attorned and delivered possession to her.

"Thereafter, on January 9, 1889, in payment of a just debt, Federicka Werk conveyed the property to respondent Kleimann, thereby transferring to him all this interest in the property, as also all right and equity to subrogation to such mortgage, so that respondent is now vested with all rights respecting the same theretofore existing in said Werk.

"That owing to a right of homestead in defendants and for lack of power in Anna Gieselmann to convey as great an estate as had been vested in the deceased Gieselmann, this new deed of trust failed to express the intent of the parties thereto and did not, and should not, extinguish or satisfy the first mortgage; but, by reason of the premises, plaintiff should be subrogated and substituted to all rights held by Reinhardt in the first mortgage before January 5, 1884, and the debt secured by the same should be foreclosed unless redeemed by the Geiselmanns.

"The prayer was for a foreclosure of the original deed of trust unless paid off and for general relief.

"The answer in the case by Mrs. Gieselmann and her children was a general denial.

"The court, upon the hearing, made an interlocutory decree to the effect that the plaintiff as assignee of Mrs. Werk was entitled to be subrogated to the rights of Reinhardt under the first deed of trust, ordered the surrender of the second note and deed of trust to Mrs. Gieselmann and sent the case to a referee to take an account of moneys due under the first deed of trust. Upon the referee's report coming in, the court made a final decree, finding that the sum of $ 2,234.47 was due under the first deed of trust, and ordering its foreclosure by sale unless the defendant redeemed the property by payment of that sum with interest. From this decree the defendants appeal, assigning for error the ruling of the court upon the evidence, and that the decree is not supported by the evidence and is against the great weight of the evidence.

"The court, upon the hearing, permitted the plaintiff to read a certified copy of the first deed of trust. It is claimed by defendants that this was error, as the loss of the original was not accounted for. All the evidence concurred that the original was left with the justice who prepared the second deed, and could not now be found by him, although he had made diligent search for it."

The rule is, in questions of this...