Fuller v. Devolld
| Decision Date | 23 May 1910 |
| Citation | 128 S.W. 1011,144 Mo.App. 93 |
| Parties | MARY E. FULLER, Appellant, v. SAMUEL DEVOLLD et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. Nat M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
Smoot & Cooley for appellant.
(1) The life tenant is bound to pay all the accruing interest on existing incumbrances upon the estate. Tiedeman on Real Property, sec. 66, p. 42; 16 Cyc., p. 634, par. 12.
(2) If the incumbrance itself is discharged by the life tenant the amount should be apportioned ratably between him and the remaindermen. See authorities above cited.
Campbell & Ellison for respondent.
Samuel Devolld was the owner of a tract of land and was the father of three children, to-wit: Miranda J., Hattie L., and Willis H. Miranda's only heir and Hattie L., each brought their action, which were consolidated into one, which is the present case. Willis H. refused to join.
Samuel Devolld gave a deed of trust on the whole tract of land to secure the payment of one thousand dollars and interest. Afterwards he conveyed a part of the land to one of his daughters, a part to the other daughter, and the remainder to his son Willis, by three separate warranty deeds, each reciting a paid consideration of seven hundred dollars, and each containing a recital that the deed was subject to the deed of trust, and that he, the grantor, reserved an interest in it during his life. This recital was in these words The debt secured by the deed of trust was due in five years and drew interest. After making these deeds to his children, the debt became due and Samuel Devolld procured the creditor to renew or extend, it for another period of five years; and when that time expired, a second extension was had for another like period. The interest was paid by Devolld.
The petition, in effect, charges that as to the plaintiffs, their land became discharged from the lien of the deed of trust, and states that Samuel refuses to pay said sum so secured and that the land is advertised and about to be sold by the trustee, unless he be restrained and the deed of trust cancelled. But the petition continues and asks that if the court finds that the lien is valid and still subsists that the land be sold, the lien paid, and the shares of the parties in the proceeds be set off to them subject to Samuel's use during his life.
Defendant Samuel's answer admitted the several deeds and the deed of trust securing the payment of the sum of one thousand dollars and interest. It then alleges that after the advertisement of the land for sale by the trustee, he was forced to pay the debt and interest or lose his right to the use of the land. He then prayed for judgment for the amount of the principal paid by him, as well as the interest thereon, which he paid to the trustee in order to stop the sale. He recovered judgment in the trial court.
The foregoing, while not a statement in detail, is sufficient for an understanding of the law which we have concluded should dispose of the case.
Devolld's children, as grantees in the warranty deeds, stand on the proposition of law that as he retained a life estate in the land he became a tenant for life and as such it was his duty to pay the encumbrance on the land as well as all interest and taxes; and that therefore the judgment should be reversed. It can be gathered from the argument that it is considered the life tenant should pay at last the interest on an incumbrance and we take it that is really all they contend for. It is the law that: "The tenant for life is bound to pay the interest on incumbrances on the property out of the rents and profits; but if he pay off the encumbrances it is said that he is, prima facie, a creditor of the estate for the amount paid, deducting the interest he would have had to pay as life...
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