Ailey v. Burnett
| Citation | 33 S.W. 1122,134 Mo. 313 |
| Parties | Ailey et al., Appellants, v. Burnett et al |
| Decision Date | 26 May 1896 |
| Court | United States State Supreme Court of Missouri |
Rehearing Granted 134 Mo. 313 at 320.
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Affirmed.
Lathrop Morrow, Fox & Moore for appellants.
(1) Where, as here, a homestead has been acquired, it is not lost by abandonment, by a temporary absence for purposes of business, health, or recreation. Duffy v. Willis, 99 Mo. 132; Leake v. King, 85 Mo. 413; Kaes v Gross, 92 Mo. 647; Robson v. Hough, 20 S.W. 523; Painter v. Steffen, 54 S.W. 229: Hines v. Nelson, 24 S.W. 541; Edwards v. Reid, 58 N.W. 202; Kaeding v. Joachinsthal, 56 N.W. 1101. (2) The plaintiff, being a remainder man, no act upon the part of Mrs. Burnett could affect or destroy the plaintiff's estate in remainder. Salmon's Adm'r v. Davis, 29 Mo. 176; Keith v. Keith, 80 Mo. 127; 6 Am. and Eng. Encyclopedia of Law, p. 881; Varney v. Stephens, 22 Me. 331; McCory v. King's Heirs, 3 Humph. 267; Foster v. Marshal, 22 N.H. 491; Jackson v. Mancens, 2 Wend. 357; Allen v. De Groodt, 98 Mo. 159; Allen v. De Groodt, 105 Mo. 442; Hintens v. Hintens, 114 Mo. 28; Meads v. Hutchinson, 111 Mo. 629. (3) As Mrs. Burnett occupied a fiduciary relation to the plaintiff, her possession could not become adverse until she, by some overt act, brought home to the plaintiff a knowledge that her possession had been changed from a friendly one to a hostile one. Hamilton v. Boggess, 63 Mo. 233. (4) No laches can be imputed to the plaintiff by reason of her omission to bring suit earlier. Sherwood v. Baker, 105 Mo. 478; Brown v. Moore, 74 Mo. 633.
W. C. Scarritt and J. K. Griffith for respondents.
(1) The evidence in this case shows conclusively that if the property in controversy was ever at any time the homestead of Harrison Benton, it had been abandoned and ceased to be such at least a year before his death. The right of homestead ceases to exist when the occupant, with a view to acquiring a residence elsewhere and with no fixed purpose of returning, ceases to occupy the premises as a residence, and the intention to return in order to preserve the right, must be formed at the time of the removal. Smith v. Bunn, 75 Mo. 559, and cases cited; Duffy v. Wills, 99 Mo. 132; Wolf v. Hawkins, 29 S.W. 892; Kimbal v. Wilson, 59 Iowa 636; Mattingly v. Berry, 23 S.W. 215; Jackson v. Sackett, 35 N.E. 237. (2) The property in question if ever a homestead, having been abandoned as such, as the court properly found, Mrs. Benton did not stand in any fiduciary relation to this plaintiff who was not her child, and she would acquire a good title under the deed of trust, paying as she did full value for the land at a sale which was fairly conducted, and without fraud on the part of anybody, so far as the evidence in this case shows. R. S. 1889, sec. 5435. Kopp v. Blessing, 121 Mo. 391; Tucker v. Wells, 111 Mo. 399; Greer v. Major, 114 Mo. 145; Kennedy v. Broyles, 55 Mo.App. 257. (3) Mrs. Burnett was not under any obligation to protect this property, and she had a right to buy it in at the sale. Wolcott v. Hand, 122 Mo. 628; Dillinger v. Kelly, 84 Mo. 565; Briant v. Jackson, 99 Mo. 585. (4) Before plaintiffs can maintain this action, they must contribute their proportion of the amount paid by defendant for incumbrances, taxes, and improvements. Dillinger v. Kelly, 84 Mo. 568, and cases cited; Allen v. De Groodt, 105 Mo. 452; Meads v. Hutchinson, 111 Mo. 629. (5) Plaintiff is guilty of such laches as to preclude her from recovery. The deed sought to be set aside was made nearly eighteen years ago. The cause of action arose more than thirteen years before this suit was instituted and about nine years after plaintiff became of age. 2 Story's Eq. Jurisprudence [12 Ed.], sec. 1520; Bliss v. Pritchard, 67 Mo. 181; Kelly v. Hurt, 74 Mo. 561; Tatum v. Holliday, 59 Mo. 422; Stevenson v. Saline Co., 65 Mo. 425; Burdett v. May, 100 Mo. 13; Kroening v. Goehri, 112 Mo. 641; Kline v. Vogel, 90 Mo. 239, and cases cited; Wilson v. Railroad, 120 Mo. 45; Dunklin Co. v. Chouteau, 120 Mo. 577; Ferguson v. Soden, 111 Mo. 208.
This is a suit in equity. The chief plaintiff is Mrs. Rachel Ailey, a married woman, whose husband joins her in the case. She is the daughter of Mr. Harrison Benton, deceased. There are a number of defendants, the leading one being Mrs. Luvenia Burnett, formerly widow of said Benton, now the wife of Mr. Burnett.
We pass the pleadings and state the substance of the controversy.
Waiving some slight discrepancies as to dates, there is no dispute as to the facts that govern the result.
Harrison Benton was a colored minister of the gospel in Kansas City, where he acquired a small piece of land in 1868. He died in October, 1876. At that time the defendant Luvenia was his wife. She has ever since resided upon the property mentioned. He left one child, Mattie, as the issue of his last marriage. She is one of the defendants in this suit.
Benton had been previously married to the mother of plaintiff, but had been divorced from that wife, on his application. Plaintiff Rachel was born in April, 1862, of that union, and hence became of age (18 years) in 1880.
During his lifetime, August 12, 1875, Benton and wife executed a deed of trust in the nature of a mortgage conveying the said land to secure to Mr. Bassett payment of a note for $ 190 with interest, 15 months after that date. It was in due form and recorded. It remained unpaid at his death.
In September, 1877, a sale took place according to the terms of the deed of trust. Luvenia Benton, the widow, became the purchaser of the land, by trustee's deed, also duly recorded.
The petition in the suit at bar was filed, September 19, 1890.
The object of the suit is to set aside the sale last named, to obtain a decree vesting title to one half the property in the plaintiff Rachel, subject to the life estate of Luvenia, and to have any other relief that may be obtainable.
Plaintiff insists both in her pleadings and evidence that the land in question was the homestead of her father when he died. This claim is stoutly disputed, on the theory that he had abandoned the place as a homestead.
We shall not go into the merits of that branch of the controversy. We deem it unimportant in view of other rulings. We assume, for the present, the soundness of plaintiff's contention that the property was the homestead of the deceased.
Benton died in 1876. The homestead law then in force governs the rights of these parties.
By the homestead act of 1875 (Laws, 1875, p. 60, sec. 1) the interest of a minor child in the homestead of its father is limited to the period of its minority. R. S. 1879, sec. 2689, identical with the law of 1875. When the child reaches full age, its interest in the homestead as such ceases. It certainly has no claim thereafter to the homestead as against the surviving widow of the homesteader.
It appears from plaintiff's own testimony that when she was 18 years old, living in Kansas at the time, she got an attorney there to write to one in Kansas City "to find out about the property." It was some years later before she actually engaged an attorney to bring suit.
There is no proof whatever of any claim on her part or of anyone for her, during her minority, of a right to occupy the homestead along with the widow who was in possession. The present suit is not founded on a denial of such right. It proceeds on the theory that plaintiff is entitled as heir at law, owning an undivided half of the fee (after the life estate of homestead of the widow), to attack the title conveyed to Luvenia by the trustee's deed based upon the incumbrance imposed on the land by plaintiff's father in his lifetime.
Whatever plaintiff's ultimate rights may be as heir of her father, it is clear that her interest or estate acquired by that relationship is subject to his just debts, and certainly is subject to the mortgage placed on the estate by him.
Irrespective of any title acquired through the deed of trust, de...
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