Brewster v. Terry

• Decision Date: 02 May 1944
• Docket Number: 38770
• Parties: Arthur T. Brewster, Appellant, v. Lucy A. Terry, Executrix Under the Will, of the Estate of P. S. Terry, Deceased
• Court: Missouri Supreme Court

180 S.W.2d 600

352 Mo. 967

Arthur T. Brewster, Appellant, v. Lucy A. Terry, Executrix Under the Will, of the Estate of P. S. Terry, Deceased

No. 38770

Supreme Court of Missouri

May 2, 1944

Rehearing, Motion to Modify Opinion or Transfer to Banc Denied June 5, 1944.

Appeal from Circuit Court of St. Louis County; Hon. Peter T Barrett, Judge.

Affirmed and remanded (with directions).

John A Nolan, J. Arthur Francis and Arthur T. Brewster, pro se, for appellant.

(1) The decree, as rendered was contrary to the pleadings and issues tried, and, therefore, not responsive to the issues pleaded. Payment of the sum decreed in favor of Lucy A. Terry, to her, could not be pleaded in bar as against a later claim against plaintiff by the estate of P. S. Terry, deceased. Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008; Ross v. Ross, 81 Mo. 84; Schneider v. Patton, 175 Mo. 684, 75 S.W. 155; Agan v. Quick, 226 S.W. 601; State ex rel. v. Ry., 193 S.W. 932; Kortjohn v. Seimers, 29 Mo.App. 271. (2) Plaintiff had a right to elect to accept damages in lieu of his property, and did so elect in his amended petition. Nor could the trial court compel the plaintiff to accept a reconveyance of the property, unless it was in the same condition as it was when it was converted by Terry. Wilson v. Drumrite, 24 Mo. 304; Turner v. Johnson, 95 Mo. 431; Jones v. Bank, 67 Mo. 109; Reilly v. Cullen, 159 Mo. 322, 60 S.W. 126; Smith v. Dickerson, 199 S.W. 956; Mooney v. Byrne, 163 N.Y. 86, 57 N.E. 163. (3) The trial court's finding of an indebtedness from plaintiff to the estate of P. S. Terry, deceased, of $ 6,668.55, was arrived at by charging plaintiff not only with the amount of the total debt, including taxes and interest to June 29, 1932, but by adding thereto all expenditures made by Terry after he had converted the property to his own use, and also interest on the debt after June 29, 1932. This was error, because the date of conversion (June 29, 1932) automatically fixed the liabilities of each party to the other, and closed the books. Any expenditures by Terry after that date could not be charged against plaintiff. Neither can he be charged with interest on the debt after that date. The wrongdoer cannot be permitted to profit by his own wrongful acts. Wilson v. Drumrite, 24 Mo. 304; Smith v. Dickerson, 199 S.W. 956; 41 C.J., p. 370, sec. 152; 42 C.J., pp. 425-426, sec. 2231; Mooney v. Byrne, 163 N.Y. 86, 57 N.E. 163. (4) A successful litigant should not be penalized with payment of costs incurred in proceedings brought to enforce his right to recover from one who has wrongfully and fraudulently deprived him of his property and concealed his conduct by false statements. Hawkins v. Nowland, 53 Mo. 328; Turner v. Johnson, 95 Mo. 431.

Hennings, Green, Henry & Evans for respondent.

(1) Where the evidence shows that a decree is for the right party it should be affirmed. Potes v. Pyles, 202 S.W. 446; Meeks v. Mining Co., 124 S.W. 1084; Brigham v. Zollman, 220 S.W. 911; Peetz Bros. v. Vahlkamp, 11 S.W.2d 26; Reynolds v. Reynolds, 234 Mo. 144. (2) The presumption is that a deed absolute in form is a deed and not a mortgage. Pomeroy, Equity, sec. 1196; Burke v. Murphy, 275 Mo. 397; Mosley v. Cavanah, 125 S.W.2d 852; Bobb v. Wolff, 148 Mo. 335; Gerhardt v. Tucker, 187 Mo. 46. (3) Before a deed absolute in form will be construed to be a mortgage, the evidence must establish such fact, not merely by a preponderance of the evidence, but beyond a reasonable doubt. Smith v. Dickerson, 199 S.W.2d 956; Gerhardt v. Tucker, 187 Mo. 47; Hutchings v. Terrace City, 175 S.W. 905; Runkel v. Lubke, 246 Mo. 377; Mayberry v. Clark, 317 Mo. 442; Robinson v. Field, 342 Mo. 778. (4) Where the grantee takes possession and pays taxes this is strong evidence that no mortgage was intended. Carson v. Lee, 281 Mo. 166; 41 C.J., sec. 106. (5) The intention that the deed was to be a mortgage must appear as of the time of the transaction. Knight v. Ins. Co., 49 S.W.2d 682; Carson v. Lee, 281 Mo. 166; Williamson v. Frazee, 294 Mo. l.c. 329. (6) In a suit to redeem, plaintiff must plead a willingness to do equity by offering to pay the debt. Pomeroy, Equity, sec. 392; Gerhardt v. Tucker, 187 Mo. l.c. 58; Allen v. Best, 58 S.W.2d l.c. 812; Lipscombe v. Ins. Co., 138 Mo. l.c. 24; Constant v. Simon, 302 Mo. 202. (7) Under the evidence plaintiff was guilty of laches in bringing his suit, therefore was not entitled to redemption. Schardski v. Allbright, 93 Mo. 42; Dexter v. McDonald, 196 Mo. l.c. 399; Gerhardt v. Tucker, 187 Mo. l.c. 58; Snow v. Funke, 41 S.W.2d 2; Bobb v. Wolff, 148 Mo. 335. (8) Assuming that plaintiff was entitled to redeem, he was not entitled to a money judgment because it was not shown that it was impossible for defendant to permit redemption. The law allowing money judgment in lieu of redemption only applies where the grantee has sold the land and is for that reason unable to recover the property. Mooney v. Byrne, 57 N.E. 163; Bell Ayre Co. v. State, 211 N.Y.S. 641; United States v. Dunn, 45 S.Ct. 451; Bobb v. Wolff, 148 Mo. 335; Pierson v. Freeman, 166 A. 121; 41 C.J., p. 364, sec. 133. (9) The court was within its power to permit Lucy A. Terry, either individually or as executrix, to tender a deed to the property. Because under the pleadings Lucy A. Terry, in effect, became a party to the suit and offered to permit the redemption of the property. 4 C.J., p. 1324; Anderson v. Watts, 138 U.S. 694; 34 C.J., p. 1008; Edgar v. Huff, 235 Mo. 552; Sharp v. Garesche, 90 Mo.App. 233; Green v. Conrad, 114 Mo. l.c. 665. (10) Because Lucy A. Terry was interested in the estate of P. S. Terry and therefore in the subject matter of the suit. Kincaid v. School Dist., 11 Me. 189; Gould v. Aringost, 46 Neb. 897; Kartright v. Cady, 21 N.Y. 343; McDougal v. Dougherty, 11 Ga. 588. (11) Because plaintiff by permitting Lucy A. Terry to plead and offer a tender of the deed waived the right to object to her becoming a party for the purpose of the tender. Wegenka v. St. Joseph, 212 S.W. 71; 27 C.J., p. 322; Anderson v. Watts, 133 U.S. 694; McMullen v. Eagan, 21 W.Va. 233.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

PER CURIAM

In August, 1923 Senator P. S. Terry loaned Mr. Arthur Brewster $ 2,000.00. To secure the note Senator Terry was given a deed of trust on 790 acres of land in Butler County, the title to which was in Mr. Brewster's mother, Mary J. Harston. In 1924, 1925, 1926 and 1927 interest was paid on the indebtedness. After 1927 little, if any, interest was paid, the taxes became in arrears in the sum of $ 1,556.60 and in October, 1929, Mr. Brewster delivered Senator Terry a warranty deed to the land with Mrs. Harston as grantor. Senator Terry and his wife, on June 29, 1932, conveyed the land to Louis Kay for a recited consideration of $ 4,000.00. Subsequently Kay, in turn, transferred the land back to Senator Terry and Mrs. Lucy A. Terry as tenants by the entirety. Mrs. Harston died and in 1937 Mr. Arthur Brewster acquired from his mother and his brother whatever interest they may have had in the land. The land in fact belonged to Mr. Brewster and title to it was in his mother for convenience only. Senator Terry died in June, 1936, and in 1937 Mr. Brewster instituted this action against Lucy A. Terry as the executrix of her husband's estate, claiming that the warranty deed of June 29, 1932 was in fact intended by the parties as a mortgage rather than an absolute conveyance and he asked the court to so declare. He alleged the value of the land to be $ 15,000.00 and stated that it was impracticable and impossible to redeem the land in kind and "in lieu of his equitable right to redeem said land in kind and as an equitable substitute therefor he is entitled to an equitable money judgment representing the land, in a sum equal to the difference between the reasonable market value of said land and the total indebtedness due by plaintiff to the said P. S. Terry on said June 29, 1932." Mr. Brewster, in his petition, admitted an indebtedness to Senator Terry of $ 2,950.00, which may have included another loan, and prayed that the court (1) declare the absolute deed to be in fact an equitable mortgage to secure his indebtedness, (2) "that the plaintiff is entitled to redeem said land," (3) that the Terry estate does not own the land and that he is entitled to "a judgment of redemption in money" and (4) for an accounting.

Mrs. Terry filed an answer containing a general denial and a statement that she was the owner of the land in question and that Senator Terry purchased the land in order that he might be made whole on account of previous loans to Mr. Brewster. However, Mrs. Terry plead that she was now and had always been willing to account for the rents, profits and proceeds from the farm and in her petition set forth what she considered a true account. She stated that she did not know whether she was sued individually or in her representative capacity but in any event it was practicable and possible for her to convey the land to Mr. Brewster and she tendered into the court a deed to the land to be delivered upon his paying the indebtedness, consisting of the note, interest and taxes due. She also tendered the original note and deed of trust.

The trial court found that Mr. Brewster was indebted to Senator Terry in the total sum of $ 6,668.55. He found that the "real property is capable of being redeemed" and that Mrs. Terry was willing to convey it upon Mr Brewster's payment to her of the amount the court finds due. He also found that if Mr. Brewster did not redeem Mrs. Terry was willing to keep the land and surrender the note and deed of trust for cancellation. The court entered a decree in accordance with its finding and gave Mr. Brewster thirty days in which to pay the debt and...