Ailey v. Burnett
| Decision Date | 26 May 1896 |
| Parties | Ailey et al., Appellants, v. Burnett et al |
| Court | Missouri Supreme Court |
Original Opinion of May 26, 1896, Reported at: 134 Mo. 313.
ON MOTION FOR REHEARING.
The chief contention on the motion for rehearing is that plaintiff's right to a judicial declaration, establishing her interest in the property, should not be denied because of the fact that she has made no tender toward redemption of the property from the incumbrance. Her claim is that the offer to do full equity is enough to satisfy the demands of the law.
We do not regard that claim as sound, in the circumstances exhibited by this record.
Sometimes an offer to do equity may be sufficient to satisfy the requirements of justice; but not where the property, in which an interest is sought to be asserted, is charged with a definite equitable incumbrance, as in the case at bar.
Assuming, as plaintiff contends, that Mrs. Burnett is to be dealt with as a mere tenant for life, still her purchase of the land at the sale (under the old deed of trust) at least inured to her benefit so far as to keep the incumbrance as such, alive against anyone claiming the property in remainder who might assert a right to redeem. In re Harvey (1896) 1 Ch. 137.
Mrs. Burnett has, on principles of subrogation, the right to maintain the status of a mortgagee in possession as to plaintiff, in that view of the case, on plaintiff's own theory of her standing.
Holding that position, and there being no claim that the old debt has been discharged, or even reduced, by rents and profits or otherwise, Mrs. Burnett can not be disturbed in her possession or title, held at least as a security, without an actual tender of the sum equitably due by plaintiff on account of the incumbrance still resting, equitably, on the estate. What that sum would be, need not be considered, as no tender whatever has at any time been made.
There could of course be no successful claim advanced by plaintiff that the rents and profits had reduced the principal debt, since on plaintiff's own theory, Mrs. Burnett would be entitled to receive them by virtue of her right to enjoy the homestead during her life.
These observations dispose of all we note in the motion for rehearing calling for any further comment than was made in the first opinion.
The motion for rehearing is overruled.
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