Hardy v. Atkinson

• Decision Date: 19 April 1909
• Citation: 118 S.W. 516,136 Mo. App. 595
• Parties: HARDY v. ATKINSON et al.
• Court: Missouri Court of Appeals

118 S.W. 516

136 Mo. App. 595

HARDY v. ATKINSON et al.

Kansas City Court of Appeals. Missouri.

April 19, 1909.

Rehearing Denied May 3, 1909.

1. EXECUTORS AND ADMINISTRATORS (§ 3)— FORECLOSURE OF MORTGAGE—NECESSITY OF ADMINISTRATION.

Where a husband and wife mortgage their homestead, and the husband dies, and there is no estate for administration, it is unnecessary to have an administrator appointed and made a party to an action to foreclose the mortgage, as any surplus at the foreclosure sale would go to the widow, though Rev. St. 1899, c. 52, § 4346 (Ann. St. 1906, p. 2392), requires that in case of the death of the mortgagor his personal representative shall be made defendant.

2. MORTGAGES (§ 427)—FORECLOSURE—NECESSARY PARTIES.

The widow of a mortgagor should be made a party to an action to foreclose, though during the lifetime of the mortgagor it would be unnecessary to join the wife in the foreclosure suit.

3. HOMESTEAD (§ 146)—INTEREST OF SURVIVING WIFE—CONVEYANCE—ESTATE CONVEYED.

Where a widow's right of dower is extinguished by reason of the preponderance in value of her homestead right, and she conveys her homestead right to her children, who are the only heirs of the owner and entitled to the land after the expiration of the widow's rights, the entire fee to the land merges in them.

4. MORTGAGES (§ 534)—FORECLOSURE—TITLE OF PURCHASER.

A foreclosure sale under a mortgage covering the entire fee, including dower, homestead, and the remainder which would descend to the heirs of the mortgagor, passes the fee to the purchaser.

5. HOMESTEAD (§ 121) — FORECLOSURE OF MORTGAGE—RIGHT OF WIDOW TO SURPLUS.

Where mortgaged property is of greater value than the homestead right of the widow and the mortgage combined, the widow is entitled to the surplus on the foreclosure sale of the property after the death of her husband.

Appeal from Circuit Court, Moniteau County; Wm. H. Martin, Judge.

Action by H. B. Hardy, administrator of James T. Atkinson, deceased, against Sarah C. Atkinson and others. A demurrer to the petition was overruled, and defendants appeal. Affirmed.

Edmund Burke, for appellants. Moore & Williams, for respondent.

BROADDUS, P. J.

The appeal in this case is from the action of the court in overruling defendant's demurrer to plaintiff's petition.

The recitations of the petition in substance are that in September, 1898, one W. J. Atkinson executed his promissory note payable to James T. Atkinson or order for the sum of $500 due one day after date, bearing 7 per cent. interest per annum; that the said W. J. Atkinson with his wife, the defendant Sarah C., for the purpose of securing the payment of the note, executed a deed of trust in the nature of a mortgage with J. E. Lander as trustee, conveying to the latter for the use of the said James Atkinson as beneficiary certain real estate, described, upon the usual conditions in such instruments; and that, when the debt and interest was paid, the instrument was to be void otherwise to remain in full force and effect. It is alleged that the said W. J. Atkinson failed to pay any part of said note and interest; that, after its execution, the said W. J. Atkinson died on the 25th day of December, 1898, intestate; that he left no property subject to administration and no administration was had on his estate; that on the 14th day of January, 1899, defendant Sarah C., his widow, filed a motion in the probate court of Moniteau county, stating that the personal property of the said W. J. did not exceed $94 in value, and praying that an order be made refusing letters of administration; that the court upon hearing the motion made an order that no letters of administration should be granted on said estate, and all the property of deceased was turned over to the said Sarah C. as widow; that the said W. J. at the time of his death occupied the dwelling on the land described with his family, and that said real estate constituted his homestead and that of his...