Funk v. Seehorn

• Citation: 74 S.W. 445,99 Mo.App. 587
• Parties: BENJAMIN F. FUNK et al., Respondents, v. THOMAS J. SEEHORN, Administrator, etc., et al., Appellants
• Decision Date: 27 April 1903
• Court: Kansas Court of Appeals

74 S.W. 445

99 Mo.App. 587

BENJAMIN F. FUNK et al., Respondents, v. THOMAS J. SEEHORN, Administrator, etc., et al., Appellants

Court of Appeals of Missouri, Kansas City

April 27, 1903

Appeal from Jackson Circuit Court.--Hon. J. W. Henry, Judge.

AFFIRMED.

Judgment affirmed.

Grant I. Rosenzweig and Edwy Logan Reeves for appellant.

(1) Secret liens, etc. Bagley v. Greenleaf, 7 Wheat. 46; Adams v. Buchanan, 49 Mo. 64. (2) Deed withheld and burden of proof. Lyons v. Bank, 29 F. 566; Standard v. Guenther, 67 Wis. 101; Sayer v Guenther, 73 Wis. 356; Central v. Doran, 109 Mo. 40; State v. Freame, 112 Mo. 502; Bank v Buck, 123 Mo. 141; Williams v. Kirk, 68 Mo.App 457; Sauerwine v. Champagne, 68 Mo.App. 32. (3) Unwritten liens. 3 Pom. Eq. Juris., sec. 1253; Green v. DeMoss, 10 Humph. 371; Cowley v. McLaughlin, 141 Mass. 181; 2 Washburn Real Prop., 506; Johnson v. Cawthorn, 1 Dev. and Bates Eq., 32; Dawson v. Gerard, 27 Minn. 411; Webb v. Robinson, 14 Ga. 216; Allen v. Loving, 34 Ia. 499; Cook v. Banker, 50 N.Y. 655; Hulett v. Whipple, 58 Barb. 224; Roberts v. Rose, 2 Humph. 145; Ganngs v. Chester, 5 Yerg. 205; Uhler v. Sample, 20 N.J.Eq. 288; Coffin v. Ray, 1 Metc. 212; Porter v. Dubuque, 20 Ia. 440. (4) Probate judgments. Jamison v. Wickham, 67 Mo.App. 578; Munday v. Deeper, 120 Mo. 417; Branford v. Woolf, 103 Mo. 391; State v. Cornice, 62 Mo.App. 569. (5) Merger. Cookson v. Railway, 74 Mo. 477; Hall v. Winchell, 38 Vt. 588; Am. and Eng. Ency. Law, title, "Merger," pages 336 and 341. (6) Third party advancing money to pay off mortgages under agreement or otherwise. Grady v. O'Reilly, 116 Mo. 346; Kleinman v. Greslina, 114 Mo. 437; Peal v. Harvey, 70 Mo. 160. (7) Courts do not erect securities which parties neglect to erect for themselves, even where prima facie equities are stronger than in case at bar. Hoyt v. Story, 3 Barb. 262; Stewart v. Flowers, 44 Miss. 513; Price v. Cutts, 29 Ga. 142; Van Schine v. Goodwin, 42 Mo.App. 39; Chamberlain v. Platz, 1 Mo.App. 183; Printup v. Barnett, 43 Ga. 407. (8) Rights of co-tenants and subrogation. Jones on Liens, secs. 1156 and 1157; Am. and Eng. Ency. Law, title, "Subrogation," pages 234, 236 and 237; Price v. Courtney, 87 Mo. 395. (9) Taxes on undivided shares. Sec. 7612, R. S. 1899; K. C. Charter, art. 5, sec. 14, p. 75; Preston v. Wright, 81 Me. 306. (10) Renewals, etc., as non-reliance on liens. Taylor v. Baldwin, 10 Barb. 626; Walsh v. McBride, 72 Md. 45. (11) Character of proof. Hitchcock v. Baughan, 36 Mo.App. 220; Am. and Eng. Ency. Law, "Equitable Mortgages," sec. 6, p. 67; Kramer v. McCaughey, 11 Mo.App. 426; Allen v. Withrew, 110 U.S. 119; Cotton v. Goit, 30 S.W. 281. (12) Laches. Goodnow v. Goodnow, 140 Mo. 206.

Gage, Ladd & Small for respondents.

(1) Schultz now claims to be a judgment creditor by virtue of the allowance in his favor in the probate court of Jackson county. But it is not the law of Missouri that a judgment creditor is a purchaser. And an undisclosed vendor's lien will be upheld as against every person except only a purchaser of the land without notice of the lien, and such purchaser must have bought the property and have a deed for it, or must have advanced money and taken the land for his security. His possession of a judgment falls far short of giving him the necessary vantage ground of a purchaser for value. (2) It is no defense to this proceeding that the plaintiffs had obtained an allowance of their claim against Tryner's estate in the probate court of McLean county, Illinois. Thornton v. Pigg, 24 Mo. 249; Savings Assn. v. Mastin, 61 Mo. 435; Jones on Mortgages, secs. 936, 937; Jones on Liens (2 Ed.), secs. 1098, 1116; Graves v. Coutant, 31 N.J.Eq. 763, 780; Waldrom v. Zacharie, 54 Tex. 503; Ball v. Hill, 48 Tex. 634, 640. (3) The moneys paid by plaintiffs on Tryner's account should be repaid to them out of his interest, because they were paid by them in discharge of a liability incurred by them with his assent and his request, for the purpose of raising funds wherewith to relieve from a burden, property in which they and Tryner had a common interest. Holloway v. Holloway, 97 Mo. 628; Herchenroeder v. Herchenroeder, 75 Mo.App. 283; Burnes Estate v. Ayrlawn Co., 82 Mo.App. 66; Rozier v. Griffith, 31 Mo. 171; Peck v. Williams, 113 Ind. 256; Foltz v. Wert, 103 Ind. 404; Packard v. King, 3 Col. 211; Story Eq. Juris. (12 Ed.), sec. 656b; Freeman Cotenancy and Partition, secs. 505, 512; Pomeroy's Eq. Juris. (2 Ed.), sec. 1240; Carter v. Penn, 99 Ill. 390; Furman v. McMillian, 2 B. J. Lea (Tenn.) 121; Prentice v. Janssen, 79 N.Y. 478; Owen v. McGhee, 61 Ala. 441; Rankin v. Black, 1 Head. (Tenn.) 650; Gee v. Gee, 2 Sneed (Tenn.) 396; Hall v. Riddock, 21 N.J.Eq. 311; Danforth v. Moore, 55 N.J.Eq. 127. (4) There is no laches in the case.

ELLISON J. SMITH, P. J.

OPINION

ELLISON, J.

--This action is founded on a petition for partition of certain real estate in Jackson county, Missouri, consisting of several distinct lots, some of which were owned in equal and some in unequal parts. The prayer of the petition is, "that the rights and interests of the parties to the suit in the real estate described be ascertained by the court and the title thereto be decreed to be vested in them respectively." The petition further prayed that a lien be declared against defendants' interests in favor of plaintiffs for purchase money and taxes paid by them in excess of their interests in the property. The judgment of the court was for partition of the property. It vested certain described parts of the property in the several parties, and it set apart dower. It also found that plaintiffs had paid out certain sums of the purchase money for the property and for taxes more than was due for their interests and it charged the other interests with a lien in plaintiff's favor for this excess. To the findings and decree the defendant Seehorn took an exception in these words: "And to each and all the foregoing findings and to each and every part of this decree, said defendant Thomas J. Seehorn, administrator, excepts." Defendant Seehorn also filed the following motion for new trial: "Now comes defendant, Thomas J. Seehorn, administrator, and prays the court to set aside its findings, judgment and decree herein and to grant new trial hereof for reasons that same are contrary to the law and the evidence. The court erred in setting aside the report and decision of the referee herein. The court erred in the law and in the conclusions of fact. The evidence is not sufficient to sustain the judgment. All errors by the court were committed over objections and exceptions taken by Seehorn at the time." This motion being overruled he excepted and appealed to this court.

When the cause came up for hearing in this court we entertained no doubt that it was not within our jurisdiction and so ordered it transferred to the Supreme Court. That court sustained a motion (joined in by both parties) to transfer back to this court. It is thus seen why we assume to entertain a case where we must either affirm or reverse a judgment which determines and vests the title to real estate. If the judgment to be rendered by this court is one of affirmance, it will be the judgment upon which the title of the different parties to the controversy will rest. If our judgment be one of reversal, then we annul and render inoperative the judgment of the circuit court upon which the title would have vested but for our interference.

Notwithstanding the record shows that defendant refused to acquiesce in the decree vesting the title to the real estate in the different parties, as well as to charging the lien for advances made by plaintiffs, and notwithstanding that he excepted "to each and all the findings, and to each and every part of the decree," and although the motion for new trial set up "that the judgment and decree are contrary to the law and the evidence," and that the court "erred in the law and conclusions of fact and that the evidence was not sufficient to sustain the judgment," yet the parties have stated in argument that, in fact, the only controversy between them relates to that part of the judgment charging the lien for purchase money and taxes. We, therefore, in obedience to the action of the Supreme Court, proceed to dispose of the case.

The original parties concerned in the matters out of which this controversy arose were Benjamin F. Funk, Francis M. Funk, William Van Schoick and George A. Tryner, all living in Illinois. In 1887 and 1889 they together bought several pieces of real estate in Kansas City, the amount of the interest of each to be in proportion to the amount of the purchase money each paid. The titles to these properties were taken in the names of one or more of them, but the party in whose name a title was taken would hold it for himself and the others as were their interests as evidenced by the portion of the purchase money which each paid. There were incumbrances on these properties which were assumed as part of the purchase price, and as they became due these parties borrowed money to pay them from banks in Illinois for which they gave their joint notes. These notes were renewed from time to time; and it appears that at some of the renewals they were not signed by all the parties, but by those of them who might then be convenient. This borrowed money was not for or on account of any particular piece of the property so purchased, but was used indiscriminately as necessary to handle the different incumbrances.

Tryner died in 1890, insolvent. At his death an adjustment of accounts disclosed that each of the parties owed one-fourth of the moneys so borrowed from the banks. Thereupon, Van Schoick and the two Funks paid the notes to the banks, each furnishing one-third of the money, and in that way...