Becker v. Becker

• Decision Date: 24 December 1913
• Citation: 163 S.W. 865,254 Mo. 668
• Parties: BECKER v. BECKER (ORTHWEIN, Intervener).
• Court: Missouri Supreme Court

163 S.W. 865

254 Mo. 668

BECKER v. BECKER (ORTHWEIN, Intervener).

Supreme Court of Missouri.

December 24, 1913.

Rehearing Denied February 10, 1914.

1. TENANCY IN COMMON (§ 19)—RIGHTS OF TENANTS IN COMMON.

Where one tenant in common purchases an incumbrance on the common estate, he holds it in trust for his cotenant, to the extent of the latter's interest, upon his contributing a just proportion of the cost.

2. TENANCY IN COMMON (§ 19)—DUTY OF COTENANTS—PURCHASE AT FORECLOSURE SALE.

The owner of mortgaged land died leaving two sons, of whom plaintiff refused to assist defendant in selling the property or in paying off the mortgage, saying that he had had his share and defendant could do as he pleased. The mortgage was foreclosed for default in interest, and defendant bought the property from the purchaser and gave a new mortgage; defendant receipting for his share of the proceeds above the amount required to pay the purchaser at the sale. Held, that defendant did not hold any part of the property in trust for plaintiff as a tenant in common with himself; the foreclosure sale having cut off the cotenancy of the parties.

3. TENANCY IN COMMON (§ 38)—ACTIONS— PLAINTIFF COTENANT—GOOD FAITH.

In suit by one of two sons, the only heirs of an intestate, who had died leaving mortgaged land, against his brother, who had purchased the property upon foreclosure of the mortgage made by the intestate, evidence held to show that the proceeding was not in good faith to compel the purchaser to hold the land in trust, but to enable a creditor, whose claim against the deceased had not been presented, to reach the land and subject it to the payment of his claim, and hence the action was properly dismissed as collusive.

In Banc. Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Suit by Henry Becker against George Becker, in which William R. Orthwein was allowed to intervene as a party defendant. From a judgment for the original defendant, plaintiff and the intervener appeal. Affirmed.

See, also, 163 S. W. 871.

Henry Becker brought suit in equity in the circuit court of the city of St. Louis against his brother, George Becker, for an accounting and permission to pay into court, for the benefit of the latter, one-half of whatever amount might be found to be due on account of the foreclosure of a deed of trust on a lot in said city claimed by plaintiff to be owned by himself and defendant as tenants in common as sole heirs of their father, George Becker, Sr., and which lot had at said sale been bought by defendant; that plaintiff be decreed to be the owner in fee of one-half of said lot; and, same not being susceptible of partition, that it be sold and the proceeds divided between the parties. Rufina Becker, the mother of said parties, was also made a defendant, but her subsequent death eliminates from consideration whatever interest she may have had in said property. One William R. Orthwein, one of the counsel for plaintiff, asked and was granted leave to be made a party defendant, alleging in his application that as administrator of George Becker, Sr., to which position it appears he had been appointed by the probate court of the city of St. Louis, he had some interest in said property, and his application was by the court granted. George Becker, the principal defendant, filed an answer to plaintiff's petition, and defendant Orthwein filed what is termed "an answer and a cross-bill," to which defendant filed a reply.

Upon the pleadings thus filed, the case was heard by the circuit court, and the petition of the plaintiff and the answer and cross-bill of the defendant Orthwein were dismissed, and a decree rendered in favor of the defendant George Becker; the plaintiff and defendant Orthwein, as administrator, thereupon appealed to this court.

The material allegations of the pleadings are sufficiently set forth in the statement of facts.

In March, 1888, George Becker, Sr., the father of plaintiff and defendant, George Becker, borrowed $400 from the St. Paul Benevolent Society, hereinafter referred to as the society, and gave a deed of trust on a small lot or parcel of ground having a frontage of 25 feet by a depth of 100 feet on Lyons street, in the city of St. Louis, on which there was a building numbered 2853. The sons were then grown men, and the house referred to was occupied as a homestead by the father and mother. The $400 was borrowed to enable the plaintiff to engage in a business enterprise and was used for that purpose. The father died in 1893, and at the time of his death the loan was unpaid. Plaintiff paid the interest on same until 1897, and, from 1896 until the suit was brought to foreclose the deed of trust in 1910, plaintiff, who was a widower with a half-grown son, lived on the premises with his mother without the payment of rent, and contributed nothing to the repair of the property. The last payment of interest on the loan was made during 1907 by the mother of plaintiff. At the time of the foreclosure of the deed of trust, four years' interest remained due and unpaid on the loan.

In January, 1909, the society, through its secretary, repeatedly notified the plaintiff and his mother of the default in the payment of interest, but nothing was done in the matter. Plaintiff was solicited by the defendant to assist in paying the debt, either by a sale or the making of another loan, but plaintiff refused to do so, and defendant requested the secretary of the society to defer the foreclosure to enable defendant to have an opportunity to sell the property and pay the loan; failing in this, the society again notified the parties that no longer time would be given and that steps would be taken to foreclose the deed of trust and sell the property to satisfy the debt. The defendant thereupon again notified the plaintiff of his inability to sell the property or to procure a second loan, and that defendant, in the event of a foreclosure, intended, if possible, to borrow money and buy in the property to protect his own interest therein. The plaintiff replied that he (plaintiff) had received his share of the property and that the defendant could proceed as he thought best. The said society on the 13th day of April, 1910, after complying with the conditions of the deed of trust and giving actual notice to all the parties, proceeded to sell and did sell the lot in question to satisfy its loan. The property was bought at the foreclosure sale by a Mr. Gramann, who paid the trustee the amount of the debt and received a deed to the property. The purchaser then executed a deed of trust on the property for $725, and conveyed same by quitclaim deed to George Becker, the defendant.

On April 30, 1910, the plaintiff and the defendant, George Becker, went to a Mr. Hannauer's office, who was the agent of the society, where the plaintiff was fully advised of the foreclosure sale, and that the property had been transferred to the defendant, and that he was to secure a loan with which to pay the bid and costs. The loan, costs, and expenses of the foreclosure were checked over and explained to the plaintiff, and he gave the trustee his receipt for his share of the surplus amount of the bid after the payment of the debt and costs. At this time, in the presence of the plaintiff, the defendant, George Becker, executed a new deed of trust on the lot in question for $1,100, $725 of which was to be in payment of the purchaser's bid at the foreclosure of the deed of trust; the additional $375 was to be expended in repairing the property and putting it in a condition for renting. The deed of trust made at the time of the sale and purchase of the property by Gramann was released when defendant gave the new deed of trust for $1,100 on the property. The defendant then proceeded to repair the property, using the $375 for that purpose, and in paying the delinquent taxes. In making the repairs defendant employed the plaintiff and paid him for his time and labor. Plaintiff's attitude throughout the entire transaction was indicated by him in the remark to defendant that he had received his share in the property and manifested no further interest in it. Plaintiff's lack of interest may be best determined by reference to his testimony at the trial. The plaintiff, upon being examined by his counsel, was asked: "Q. Please tell the court what George Becker said, if anything, to you, before this sale came off, where he said it, as to what he was going to do in regard to buying it up." To which plaintiff replied: "A. I will throw my name out of it. Q. What did he say? A. He says, `I will buy in the property.'" Counsel for defendant then interjected this question: "When was this conversation? A. Right after the sale." At which juncture the court interposed this inquiry of the plaintiff: "Q. What did he say before the sale? A. He [defendant] says: `I will divide up with your mother-in-law, Mrs. Haesle. I will buy the property in, and I will pay your mother-in-law, and whatever comes out of it I will divide with you, amongst the both of us.' That is what he said; that is what my brother, George Becker, said. Q. (By counsel for plaintiff): When was the first time that George Becker claimed to own the property by himself? A. After the sale was made, and we got the papers from Mr. Hannauer. Q. When did he tell you that he claimed to own it? A. When I met him up at Mr. Hannauer's office. Q. That was after the sale had been made? A. That was after the sale had been made; yes, sir. Q. What did he say to you, Mr. Becker? A. He says, `I bought the property, and you and I will go to work and get the property fixed up, and we will sell it and divide it up.' Q. That was after the sale? A. Yes, sir. Q. When did he first claim that he bought the property in for himself, and you didn't have any interest in it? A. Some time in May, last year. Q. On May 21st [1910] what did he say? A. `We will fix it up, and after we get it straightened out we will go to...