Bearden v. Hodge, 43545

Decision Date13 December 1954
Docket NumberNo. 43545,43545
Citation273 S.W.2d 207
PartiesMildred H. BEARDEN, Plaintiff-Appellant-Respondent, v. Mildred L. HODGE, Mildred L. Hodge, as administratrix of the Estate of David F. Hodge, Deceased, Thomas Williams, and J. C. Ellison, Jr., Defendants-Respondents-Appellants, Marion L. Killian and Mary Killian, Husband and wife; George Edwards and Mary Edwards, or, if they, or either of them, be dead, the unknown consorts, heirs, executors, administrators, successors, assigns, devisees, donees, alienees, and immediate, mesne or remote voluntary and involuntary grantees of each of said persons who is deceased, Third-Party Defendants-Respondents.
CourtMissouri Supreme Court

M. Walker Cooper, Briney & Welborn, Bloomfield, James Glenn, Macon, for defendants-appellants.

Paul L. Hale, St. Louis, Clarence A. Powell, Dexter, for respondent, Mildred H. Bearden.

DALTON, Judge.

The plaintiff below and the defendants Mildred L. Hodge and Mildred L. Hodge, administratrix of the estate of David F. Hodge, deceased, have appealed from a decree determining the extent of plaintiff's title to described real estate in Stoddard County, fixing liens thereon for improvements and awarding third party defendants damages against defendant Mildred L. Hodge for breach of warranty.

On this appeal, plaintiff-appellant complains particularly of that part of the decree subjecting plaintiff's interest in the described real estate to certain liens for improvements, while defendants-appellants complain of the adjudication of title in plaintiff and of the judgment in favor of third party defendants.

Without quotation marks we shall adopt portions of an opinion prepared in Division One by Coil, Commissioner, and we shall continue to refer to the parties as plaintiff and defendant. Except as hereinafter stated, John A. Hodge is the common source of title.

John A. and Mollie Hodge had two sons, David F. and Hickman. Hickman died in 1926 leaving plaintiff as his sole heir. David died in 1947 leaving a widow (defendant Mildred L. Hodge) but no descendants. Third-party defendants Killian, husband and wife, were the grantees in a warranty deed dated January 1, 1944, wherein David F. and Mildred Hodge purportedly conveyed fee simple title to lot 21 in Asherville. Other defendants and third party defendants either disclaimed any interest or defaulted.

John A. Hodge died intestate in October 1937, survived by his widow Mollie, his son David, and his granddaughter, the plaintiff. He died owning the land in controversy, except lot 21 which he and his wife had owned by the entirety. There was no administration of his estate. Mollie, his widow, died in September 1942. There was no administration of her estate. There was no change in the title to the involved property prior to Mollie's death.

The land in controversy for our purposes is best described as three separate tracts to which we shall refer as the '122-acre tract,' the 'house and barn property,' and lot 21. The '122-acre tract' is unimproved farm land; the 'house and barn property' includes a 6-acre tract on which there is a house, a 3-acre tract on which there is a barn, and an unimproved 90' x 60' 'east' lot; lot 21 is a town lot. The 'house and barn property' is contiguous to the '122-acre tract' except that a county road runs between the house and barn, and the two properties were operated as a farm.

In August 1934, John A. and Mollie Hodge executed their deed of trust to W. L. Tucker as trustee for Ralph and Nora Wammack, conveying the following described property to secure a $750 note: 'The Southeast Quarter of the Southwest Quarter of Section Ten (10); The Northeast Quarter of the Northwest Quarter of Section Fifteen (15), the Southeast Quarter of the Northwest Quarter of Section Fifteen (15) except 7 acres off of the east side thereof and a strip of land containing about 9 acres on the east side of the southwest quarter of the northwest Quarter of Section Fifteen (15), all in Township Twenty-six (26), Range Eight (8) East, and containing in the aggregate 122 acres, more or less, and being the home place of the grantors.' The land particularly described above included the '122-acre tract' only.

In October 1943 (subsequent to the deaths of John A. and Mollie Hodge), the deed of trust was foreclosed. David F. Hodge purchased at foreclosure for $875 and received a trustee's deed to himself and his wife (defendant) as tenants by the entirety. Both the trustee's advertisement of sale and the trustee's deed described the '122-acre tract' only. The description in neither the advertisement nor the deed contained the words 'and being the home place of the grantors.'

Defendant contends that the deed of trust conveyed to the trustee the 'house and barn property' as well as the '122-acre tract' because of the words 'being the home place of the grantors' and that the trustee's deed conveyed title to her and David to both the '122-acre tract' and the 'house and barn property.'

There was evidence to the effect that the 'home place' by general reputation included the 'house and barn property' as well as the '122-acre tract.' The evidence further showed that the '122-acre tract' was of small value at trial time; one of plaintiff's witnesses thought the 122 acres would sell for $2,000. There was other evidence of a much lower value. There was no dispute that the 122 acres was extremely poor land.

Plaintiff contends that, irrespective of what the deed of trust conveyed, the fact remains that the trustee advertised and sold at foreclosure only the '122-acre tract' and that his deed to David F. Hodge and his wife (the defendant) as tenants by the entirety, conveyed only the 122 acres. Defendant contends, on the contrary, that, taking into consideration all the circumstances in evidence, it was the intention of the holder of the deed of trust and the trustee to sell, and of the purchaser to purchase, the 'house and barn property' as well as the '122-acre tract'; that the trustee believed that the 122 acres described in the advertisement and in the deed of trust in fact included the 'house and barn property.' Defendant has not affirmatively sought a reformation or correction of the trustee's deed. She contends, in substance, that in this equity suit the intention of the parties should be given effect in order to arrive at a proper result.

The circumstances in evidence to which defendant points are these: that the '122-acre tract' was of relatively small value and the house and barn were in poor condition at the time of foreclosure; that shortly after the purchase by David Hodge at foreclosure, David and defendant executed a new deed of trust to the same beneficiary and the same trustee securing a note for $1,200, and that that deed of trust described the '122-acre tract' only; that $875 of the new loan was used to pay the old indebtedness and that the additional $325 was used to make improvements on the house; that defendant and her husband, subsequent to foreclosure, immediately went into possession of the 'house and barn property' and claimed ownership under the trustee's deed and expended their funds in making improvements on the 'house and barn property.' Defendant urges that it is unreasonable to believe that the holder of the first deed of trust, having covered in it the 'home place' (which she says included the 'house and barn property,') would make a new deed of trust for a relatively substantially larger amount to permit improvements to be made on the house, if he had not intended to take, and thought he was obtaining, a deed of trust on the 'house and barn property' as well as the '122-acre tract'; and that the beneficiary would not have loaned additional money on the relatively worthless '122-acre tract' alone. Defendant says the holder of the note intended, and all the parties to the transaction intended, that the 122 acres specifically described included the 'house and barn property.'

Reference to the description of the 122 acres in the deed of trust, set forth above, discloses that part of that description is: 'a strip of land containing about 9 acres on the east side of the southwest Quarter of the northwest Quarter of Section Fifteen (15).' The 'house and barn property' consisted of about nine acres, and while it is not the nine acres described in the deed of trust, nevertheless, it may well be that the scrivener was confused as to the location of the house and barn and believed that they were on the nine acres referred to in the description of the 122 acres.

The advertisement of the trustee's sale shows: 'By virtue of a deed of trust, * * * dated August 22nd, 1934, and recorded in book 69 at page 577 * * * I, the undersigned trustee, will at the request of the legal holder of said note sell * * * the land in said deed of trust described as follows: * * *.' A description of the '122-acre tract' follows but, as noted, the words 'and being the home place of grantors' are omitted.

And the trustee's deed contains this language: 'Whereas, John A. Hodge and Mollie Hodge, * * * by their Deed of Trust, dated the 22nd day of August A.D. 1934, and recorded in the Recorder's office * * * in Book 69 at page 577, conveyed to the undersigned Trustee the real estate hereinafter described, * * * I * * * do hereby Bargain, Sell and Convey unto the said David F. Hodge, & Mildred L. Hodge, husband and wife, the said real estate in said Deed of Trust and notice of sale described, * * * to wit: * * *.' Again, a description follows of the '122-acre tract' with no reference to the 'home place.'

We find it unnecessary to determine whether the description in the deed of trust was sufficient to include 'the house and barn property', because all of the facts and circumstances relied upon by defendant are insufficient to permit the inclusion of any property other than that specifically described in the trustee's deed. The trustee's deed, under its terms, conveyed only the real estate...

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4 cases
  • Graham v. Oliver
    • United States
    • Missouri Court of Appeals
    • October 17, 1983
    ...pass to the purchaser the legal title to the property sold." Lanier v. McIntosh, supra, 117 Mo. at p. 516, 23 S.W. 787. Also see Bearden v. Hodge, 273 S.W.2d 207 (Mo. banc 1954); Talley v. Schlatitz, 180 Mo. 231, 79 S.W. 162 (1904). Compare Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851, 853 (......
  • In re Abernathy
    • United States
    • U.S. Bankruptcy Appellate Panel, Eighth Circuit
    • March 8, 2001
    ...of the tenancy. Goforth v. Ellis, 300 S.W.2d 379 (Mo. 1957). The interest is fully alienable without destroying the tenancy. Bearden v. Hodge, 273 S.W.2d 207 (Mo. banc 1954). Poetz v. Klamberg, 781 S.W.2d 253, 255 (Mo.Ct.App.1989). "In short, the interest of the joint tenant is to the whole......
  • Swift v. Fed. Home Loan Mortg. Corp.
    • United States
    • Missouri Court of Appeals
    • December 23, 2013
    ...ex-wife subject to her limited interest in the real property which remained in limbo until there was a final judgment. See Bearden v. Hodge, 273 S.W.2d 207, 213 (Mo. banc 1954) (noting that a warranty deed delivered by a co-tenant “passed title to only an undivided one-half interest.”); 86 ......
  • Poetz v. Klamberg
    • United States
    • Missouri Court of Appeals
    • December 12, 1989
    ...the tenancy. Goforth v. Ellis, 300 S.W.2d 379 (Mo.1957) [2-5]. The interest is fully alienable without destroying the tenancy. Bearden v. Hodge, 273 S.W.2d 207 (Mo. banc 1954) Given the different nature of the two co-tenancies it appears logical that different treatment exist as to the requ......

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