Casteel v. Potter
| Decision Date | 15 June 1903 |
| Parties | CASTEEL, Appellant, v. POTTER et al |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.
Reversed and remanded.
R Frank Jones and William Aull for appellant.
(1) The mansion house and plantation were sold by the executor under order of the probate court for the payment of debts, and out of the proceeds received by him the executor paid off and discharged said deeds of trust. Until dower was assigned her appellant was and is entitled to the widow's quarantine in said land. R. S. 1899, sec. 4533; Casler v. Gray, 159 Mo. 589; Gentry v. Gentry, 122 Mo. 220; Sweaney v. Mallory, 62 Mo. 485; Orrick v Robbins, 34 Mo. 226; Agan v. Shannon, 103 Mo. 388; Parker v. Barker, 17 Mass. 564; Casler v. Chase, 60 S.W. 1040. (2) The old rule of the common law that the mortgagee became the legal owner of the estate no longer prevails in this State. The office of a mortgage or deed of trust is not to alienate the land but to create a lien thereon to secure indebtedness. Dickerson v. Bridges, 147 Mo. 243; Woods v. Hildebrand, 46 Mo. 284; Pease v. Co., 49 Mo. 124; Kennett v. Plummer, 28 Mo. 145; Masterson v. Railroad, 72 Mo. 342; Hargadine v. Hargadine, 97 Mo. 375; Fischer v. Johnson, 51 Mo.App. 157; Logan v. Railroad, 43 Mo.App. 71; Parker v. Barker, 17 Mass. 564. (3) The executor paid off and discharged the deeds of trust out of the proceeds of the sale of said real estate, and the same were satisfied of record. The deeds of trust accordingly were paid and dead and can not be used to defeat the widow's quarantine. Casler v. Gray, 159 Mo. 589; Casler v. Chase, 60 S.W. 1040; Jones v. Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo. 510; Atkinson v. Angert, 46 Mo. 515; Wedge v. Moore, 60 Mass. 8; Eaton v. Simonds, 31 Mass. 98; Collins v. Torrey, 7 Johns. 277. When the deeds of trust were paid off and discharged by the executor, they had no further effect. They were dead and in nowise affected the rights of the widow, who was entitled to dower and quarantine as though such deeds of trust had never existed. They were not admissible in evidence for any purpose. Washburn on Real Property (6 Ed.), pp. 195-6; Hildreth v. Jones, 13 Mass. 525; Matthewson v. Smith, 1 R. I. 22; Peckham v. Hawden, 8 R. I. 160; Rossiter v. Cossitt, 15 N.H. 58; Hastings v. Stevens, 29 N.H. 564; Klink v. Lecky, 2 Hill Ch. 250; Hatch v. Palmer, 58 Me. 271; Parker v. Barker, 17 Mass. 564; Carter v. Goodin, 3 Ohio St. 75; Kinim v. Walsh, 44 Mo. 65. Even though the deeds of trust were still valid and binding, and appellant was entitled only to dower in the equity of redemption, yet there has never been any foreclosure and she would be and is entitled to the rents and profits by virtue of her quarantine rights. The manner of sale can not affect the rights of the widow. A sale free and clear of the deeds of trust and payment of same out of the proceeds would have the same effect as a sale subject to the deeds of trust with an agreement that the deeds of trust be paid by the purchaser. In either event the debts are paid out of the Casteel estate. Matthewson v. Smith, 1 R. I. 22; Peckham v. Hawden, 8 R. I. 160; Snow v. Stevens, 15 Mass. 280; Hitchcock v. Harrington, 6 Johns. 290; Collins v. Torrey, 7 Johns. 278; Coats v. Cheever, 1 Cowen 478; Bolton v. Ballard, 13 Mass. 227; R. S. 1899, secs. 2935, 2936; House v. Fowle, 22 Ore. 303. (4) Respondent purchased no rights of appellant, and bought at his peril. She had nothing whatever to do with the negotiation between the executor and respondent or the sale of the premises. Foley v. Boulware, 86 Mo.App. 674; Hensley v. Baker, 10 Mo. 157; Throckmorton v. Pence, 121 Mo. 50; Hart v. Giles, 67 Mo. 175; Fern v. Ostertrout, 42 N.Y.S. 450; Motley v. Motley, 73 N.W. 738. (5) The executor was ordered to sell, and sold, the premises and the right, title and interest of Casteel in and to the same. The fact that he caused to be used a portion of the proceeds to extinguish the deeds of trust, gives respondent no grounds for complaint. The executor relieved the real estate of the deeds of trust, but the rights of the widow remain as though such deeds of trust had never existed. Duke v. Brandt, 51 Mo. 221; Jones v. Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo. 510; Sweaney v. Mallory, 62 Mo. 485; Owen v. Slatter, 26 Ala. 547; Livingstone v. Cochran, 33 Ark. 294; House v. Fowle, 22 Ore. 303; 10 Am. and Eng. Ency. of Law (2 Ed.), p. 166, and note; Bolton v. Ballard, 13 Mass. 227. (6) Respondent is not entitled to be subrogated to the rights of the holders of said deeds of trust. He does not hold under the deeds of trust, but under the executor's deed. The deeds of trust were discharged out of the assets of Casteel's estate. Jones v. Bragg, 33 Mo. 337; Sweaney v. Mallory, 62 Mo. 481; Atkinson v. Stewart, 46 Mo. 514; Carter v. Goodin, 3 Ohio St. 75; Atkinson v. Angert, 46 Mo. 515; Shurtz v. Thomas, 8 Pa. St. 359; Collins v. Torrey, 7 Johns. 278; Hitchcock v. Harrington, 6 Johns. 290; Wedge v. Moore, 60 Mass. 8; Matthewson v. Smith, 1 R. I. 22; Peckham v. Hawden, 8 R. I. 160.
W. H. Chiles and John S. Blackwell & Son for respondents.
(1) Appellant had never at any time a right to dower in the Maloney lands in controversy, but only in the interest or estate of her husband therein, which was simply the equity of redemption and that equity of meager value on account of the heavy incumbrance. The land sold for $ 10,600 which under the evidence was its full value, and that sum was less than the debts upon it and the costs of sale, commission, etc. Appellant relies upon the cases of Jones v. Bragg, 33 Mo. 337; Atkinson v. Stewart, 46 Mo. 510, and 46 Mo. 515, and Sweaney v. Mallory, 62 Mo. 485. The latter cases are all based on the first case in 33 Mo. and it may be doubted if, in these days of increased rights to married women and corresponding duties, the harsh rule made in that case could be called law. But leaving the criticism of those cases and the doctrine announced with this court, where it belongs, there is a marked distinction between the case at bar and those cited. In those cases the husband owned the fee simple title unincumbered, and the wife had full rights therein; she released that right of dower by signing the mortgage and when the mortgage was discharged, she was reinstated to her former rights. In this case the husband never had such a title, and of such as he had, and that only, did she have a right of dower. She did not provisionally surrender a full right to have it afterwards restored; she had signed nothing and there was nothing to be restored. It would be a strange rule indeed that, with the husband's title to land a bare and valueless equity of redemption, without a dollar from him or act from her, that right could be swelled to a $ 10,000 estate, in which she could claim dower. The efforts of the "get-rich-quick" operators of to-day would be far surpassed. The court below held properly that she was entitled to no such right and had no right of quarantine. While we have in our reports no such case concerning dower, we have some concerning the husband's curtesy, which is a similar estate, which take this view of the law. Casler v. Gray, 159 Mo. 588; Kinner v. Walsh, 44 Mo. 65. The meaning of the word "dower" bears the construction contended for, and no other. "Dower" is the interest of the wife in the husband's lands. Bryant's Admr. v. McCune, 49 Mo. 546. The statute endows her in the one-third part of all the lands, whereof her husband, or any other person, to his use, was seized of an estate of inheritance, etc., which is not limited to the unincumbered fee simple title, but to whatever his estate may be, and in that interest or title only. A widow has no dower in partnership lands sold to pay partnership debts, because her husband has a qualified title only in such lands, and the qualification precludes her endowment in such case. Duhring v. Duhring, 20 Mo. 164; Willet v. Brown, 65 Mo. 138. So, the lien of a vender for his purchase money, even if evidenced by mortgage in which the wife does not join, bars her right of dower. Ragsdale v. O'Day, 61 Mo.App. 230. The right of quarantine is simply incident to the right of dower. Wigley v. Beauchamp, 51 Mo. 54. And without the right of dower there can be no quarantine right in the lands in controversy. (2) It is now firmly established by the great weight of authority in this country that the purchaser, in good faith, of property at a judicial sale that turns out to be defective, irregular or void, who pays money which has been applied in the payment of liens upon the property, or in paying claims which, though not secured by specific lien, were enforcible against the assets of the estate, and for the payment of which the property in question might have been sold, is entitled to be subrogated to the rights of the creditors whose debts have been so satisfied. And we insist that the respondent herein is entitled to be subrogated to the rights of the creditors whose liens, deeds of trusts and mortgages were paid off and satisfied with his money. Schaefer v. Causey, 76 Mo. 365; Long v. Joplin Mining and S. Co., 68 Mo. 428; Carey v. West, 139 Mo. 146; Schaefer v. Causey, 8 Mo.App. 142; Cunningham v. Anderson, 107 Mo. 377; Smith v. Stephens, 164 Mo. 423; Jackson v. Magruder, 51 Mo. 58; Weston v. Hull, 50 Mo. 296; Perry v. Adams, 2 Am. St. 328; Valle Heirs v. Flemming Heirs, 29 Mo. 157.
In Banc: MARSHALL, J. Robinson, C. J., and Brace, Gantt, Burgess and Fox, JJ., concur; Valliant, J., dissents. In Division One: MARSHALL, J. All concur except Valliant, J.
OPINIONIn Banc.
MARSHALL J. -- The following opinion heretofore rendered in Division One is hereby adopted as the opinion of the Court in Banc with the...
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