Carson v. Lee

• Decision Date: 02 March 1920
• Parties: GERALDINE H. CARSON et al., Appellants, v. CHARLES L. LEE
• Court: Missouri Supreme Court

219 S.W. 629

281 Mo. 166

GERALDINE H. CARSON et al., Appellants, v. CHARLES L. LEE

Supreme Court of Missouri, First Division

March 2, 1920

Appeal from Mississippi Circuit Court. -- Hon. Frank Kelly, Judge.

Affrmed.

Haw & Brown for appellants.

(1) The court, upon the objection of defendant, refused to permit plaintiffs to show that at the time the conveyance from Addie Howlett and her husband was made to Luke Howlett, Price Howlett, husband of Addie, was being hard pressed and even sued on claims against him. Such testimony was proper. 27 Cyc. 1006 (c); Brightwell v. McAfee, 249 Mo. 579; Powell v. Crow, 204 Mo. 487; Book v Beasley, 138 Mo. 455; Cobb v. Day, 106 Mo. 278. It does not matter that the evidence was concerning the husband's debts, as the wife may mortgage her lands to secure her husband's debts. Hack v. Hill, 106 Mo. 26. (2) The court erred in failing and refusing to hold that the conveyance from Addie Howlett and Price Howlett to Luke Howlett, was a mortgage and that plaintiffs, the heirs of Addie Howlett, had a right to redeem the land therein described. The suit was brought in time. Lipscomb v Talbott, 243 Mo. 28; Sheppard v. Wagner, 240 Mo. 437; Wilson v. Drumrite, 21 Mo. 325; Ballinger v. Chouteau, 20 Mo. 89; 27 Cyc. 1029 (e); R. S. 1909, sec. 1881; Rutte v. Carothers, 223 Mo 647; Gray v. Yates, 67 Mo. 601. (3) The instrument sued on is a mortgage and should have been so construed. Where a deed absolute in form contains a clause reserving to the grantors a right to redeem the premises by the payment of a specific sum within a limited time, this will generally convert the transaction into a mortgage, being taken as manifesting the intention of the parties to create a security only. 27 Cyc. 997 (IV); Sheppard v. Wagner, 240 Mo. 437; DesLoge v. Ranger, 7 Mo. 330. (a) The intent as expressed in the instrument itself should control. 13 Cyc. 604, 604-D, 606 (b); 34 Cyc. 766; 3 Bouvier's Law Dictionary (3 Rev.), p. 2858; 27 Cyc. 997 (IV); 7 Words and Phrases, p. 6023. (b) Even where the intention is doubtful, and the court is to determine whether the transaction is a mortgage or a conditional sale, it will be held a mortgage, as that construction is the more just and equitable. Phillips v. Jackson, 240 Mo. c. 332, Powell v. Crow, 204 Mo. 490; Turner v. Kerr, 44 Mo. 434; Bender v. Markle, 37 Mo. 246; Brant v. Robertson, 16 Mo. 145; White v. University Land Co., 49 Mo.App. 464. (4) A deed absolute on its face may be a mortgage. 27 Cyc. 991, 994 (b) 996 (b); Chance v. Jennings, 159 Mo. 554; Book v. Beasley, 138 Mo. 455; Hack v. Hill, 106 Mo. 18; Sharkey v. Sharkey, 47 Mo. 543; Tibeau v. Tibeau, 22 Mo. 77; Wilson v. Drumrite, 21 Mo. 325; McDowell v. Morath, 64 Mo.App. 297. (5) The fact that there is no agreement to pay interest in this case is more than offset by the grantee taking possession and retaining the rents and profits. Lipscomb v. Talbott, 243 Mo. 1; Bender v. Zimmerman, 122 Mo. 194; Towner v. Johnson, 95 Mo. 431; Ely v. Turpin, 75 Mo. 83.

Russell & Joslyn for respondent.

(1) The petition states no cause of action. Jones v. Hubbard, 193 Mo. 163; Branham v. Peltzer, 177 S.W. 374; Donovan v. Boeck, 217 Mo. 87. (2) The death of Addie Howlett before the expiration of the ten-year period could not extend the time limit for more than three years after her death. R. S. 1909 sec. 1883; Smith v. Settle, 128 Mo.App. 382; Reed v. Painter, 145 Mo. 341; Schradski v. Albright, 93 Mo. 42. (3) There was no existing debt alleged or proven, therefore the maxim "no debt, no mortgage" should be applied. Donovan v. Boeck, 217 Mo. 87. (4) At the time she executed the deed, Addie Howlett was a married woman, and in law deemed a femme sole so far as to enable her "to contract and be contracted with." R. S. 1899, sec. 4335; R. S. 1909, sec. 8304. (5) The deed itself and all of the evidence shows the transaction to be a complete sale, with the right reserved in the grantors, or "either of them," to repurchase within a specified time. Turner v. Kerr, 44 Mo. 433; Slowey v. McMurray, 27 Mo. 113; Bobb v. Wolff, 148 Mo. 335; Dunaway v. Kerr, 163 Mo. 415; Bailey v. Trust Co., 188 Mo. 486; Powell v. Crow, 204 Mo. 481. (6) The sale was a conditional one, and even if there had been no redemption by Price Howlett, Addie Howlett, had she lived, could not have redeemed after the expiration of the ten-year period. Bobb v. Wolff, 148 Mo. 349. (7) The burden was on the appellants to show by clear and convincing proof that the deed was a mortgage. Cobb v. Day, 106 Mo. 278; Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335. (8) "Redeem," as defined by the law writers, means to purchase back; to buy back; to repurchase in a literal sense. 3 Bouvier's Law Dictionary (3 Rev.) p. 2852; 34 Cyc. 766. (9) In order to show that a deed absolute in form was intended as a mortgage, the evidence must be satisfactory as to its credibility, unequivocal as to its terms and meaning, and clear and convincing beyond a reasonable doubt. Gerhart v. Tucker, 187 Mo. 46; Brightwell v. McAfee, 249 Mo. 562.

OPINION

GOODE, J.

Plaintiffs, who are the children and only heirs of Addie Howlett and Sterling Price Howlett, both deceased, filed this action to obtain a decree that they be allowed to redeem a parcel of land, consisting of seventy acres, from the operation of an alleged mortgage made by their parents. The instrument said to be a mortgage, executed and recorded July 6, 1903, was to Luke Howlett, a brother of said Price, and was in form a warranty deed, except that it contained this paragraph:

"And said Luke Howlett agrees that said Price and Addie Howlett may at any time within ten years redeem said land and he will upon payment to him of said sum of $ 4,000 reconvey to them or either of them the said land without payment of any interest. Subject to the easement of public and railroads, if any, over said land. Purchaser assumes payment of all taxes falling due after the year 1903."

When that conveyance was made the title to the land was in Mrs. Addie Howlett, subject to a deed of trust given by Addie and S. P. Howlett, her husband, October 17, 1901, to E. J. Deal, trustee, to secure the payment of a note for eight hundred dollars, due in three years, to J. J. Russell, which incumbrance the deed to Luke Howlett bound the latter to pay, as later he did. Price Howlett had conveyed the land to Addie in consideration of love and affection, September 18, 1895, or eight years before the conveyance to Luke. He was in embarrassed circumstances when the latter conveyance was made by himself and wife; creditors were pressing him and judgments had been rendered against him. Neither of the grantors owed Luke anything at the date of the deed, but he was surety for Price on four notes to three banks, the notes ranging in amount from two hundred to sixty dollars, Luke testified. These notes and other debts of Price to the amount of $ 3500, were paid by Luke, and as a balance of $ 440 of the purchase price of $ 4000 remained, this was paid to Addie and Price Howlett, the grantors. Mrs. Addie Howlett died March 30, 1906, and afterwards, on December 30, 1907, Luke Howlett and his wife Mable and S. Price Howlett sold and conveyed the land in question to defendant, Charles L. Lee, for five thousand dollars, of which sum Luke Howlett received four thousand dollars and Price one thousand. By the advice of his attorney, Lee exacted from the grantors a bond dated January 10, 1908, with sureties, in the sum of two thousand dollars, wherein the aforesaid deed by Addie and Price Howlett to Luke Howlett was referred to, with the statement that in the deed "there was given said Addie Howlett and S. P. Howlett the right to redeem said land within ten years from the date of said deed." The condition of the bond was this:

"Now if the heirs of said Addie Howlett, deceased, or any one of them, shall have the right to redeem said land, as it is claimed they have, and do redeem said land, then if in that event said Luke Howlett and S. P. Howlett shall pay the said Charles Lee all the sums paid by him for said land and the reasonable value of all permanent improvements put on said lands by him and hold him safe and harmless from any and all loss on purchase price and permanent improvements by reason of said property being redeemed and taken from him, than this obligation to be void, otherwise to remain in full force and effect.

"It being fully understood and agreed that if the said land be redeemed the sum paid by the parties redeeming it shall be applied to paying said Lee and protecting him from loss on account of said purchase and redemption."

Price Howlett died December 24, 1911. The petition states facts to show the deed in question was executed as a mortgage to secure Luke Howlett in the payment of debts Price owed him as surety for Price, and in the reimbursement of judgments and other debts of Price he (Luke) agreed to pay out of the consideration of four thousand dollars mentioned in the deed; avers defendant purchased with actual notice of the right and intention of plaintiffs to redeem the land; that they had offered to pay defendant four thousand dollars, with interest at six per cent from July 6, 1913, when, it is averred, interest began to run on the instrument, concluding with a prayer to be allowed to redeem and for an accounting to ascertain the amount due to defendant, taking into consideration the rents and profits he had received while the land had been in his possession. The answer of defendant admitted the truth of some of the statements of the petition and denied others, to-wit: that Addie and Price Howlett owed any debts to Luke when they conveyed to him; that he was surety for Price; that there were judgment liens on the land at the date of said conveyance;...