Herndon v. Yates

• Decision Date: 16 March 1917
• Docket Number: No. 18132.,18132.
• Citation: 194 S.W. 46
• Parties: HERNDON et al. v. YATES et al.
• Court: Missouri Supreme Court

194 S.W. 46

HERNDON et al. v. YATES et al.

No. 18132.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Nancy Herndon and others against Wm. S. Yates, who died during pendency of suit; his heirs being brought in as defendants by an amended petition. From a judgment for plaintiffs, defendants appeal. Affirmed.

Norton B. Anderson, of Platte City, and George W. Day, of Kansas City, for appellants. W. H. Haughawout and Gray & Gray, of Carthage, for respondents.

FARIS, J.

This is an action to determine interest in a certain tract of land in Platte county. Defendants were defeated below, and appeal. The action was begun against William S. Yates, who died during the pendency of same in the lower court. His heirs were, by an amended petition, brought in as defendants, and thereafter the pleadings and proceedings ran in their several names. But the cause being here entitled as above, we shall not disturb it, but merely note the fact for the purpose of identification.

The land in dispute is that certain 53 1/3 acres of land in the east half of the northwest quarter of section 12, in township 53 north of range 34 west, which lies north of Smith's fork of Platte river. The common source of title is James R. Shackelford, who conveyed the land by his deed containing covenants of warranty to Safrona E. Lutes (we follow the orthography of the deed) on the 4th day of February, 1868, for a recited consideration of $1,066.66. Six days thereafter there was executed and acknowledged (or attempted so to be) and delivered to said James R. Shackelford and one Amos Carpenter by said Safrona E. Lutes and E. P. Lutes, her husband, the below copied instrument, bearing date February 10, 1868, which, being sui generis, we set out in full, inasmuch as we are unable to apply any known part of the nomenclature of the law in apt designation of it. It is, to wit:

"Know all men by these presents: That we, James R. Shackelford, of the county of Platte and state of Missouri, of the first part, have this day, for and in consideration of the sum of one thousand sixty-six dollars and sixty-six cents, to them in hand paid by Safrona E. Lutes, of the county of Platte and state of Missouri, of the second part, the receipt whereof is hereby acknowledged, have this day granted, bargained and sold and conveyed unto the aforesaid Safrona E. Lutes, of the second part, and by these presents do grant, bargain and sell unto the said Safrona Lutes, the following described tracts and parcels of land, situate in the county of Platte and state aforesaid, to wit:

"Fifty-three and one-third acres of land off of the east end of the northwest quarter of section twelve, township fifty-three (53), range thirty-four (34).

"To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging, or in any wise appertaining unto the said Safrona E. Lutes, her heirs and assigns forever; we, the aforesaid James R. Shackelford, and Sally Shackelford, wife of said James R. Shackelford, hereby covenanting to and with the said Safrona E. Lutes, her heirs and assigns, for himself and for their heirs, executors and administrators, warrant and defend the title to the premises hereby conveyed against the claims of every person whomsoever.

"But the express condition where the Safrona E. Lutes and E. P. Lutes, on this the fourth day of February, 1868, made and executed to Amos Carpenter, James R. Shackelford, their promissory note, in words and figures as follows:

"$681.66. Two years after date, for value received of them, we promise to pay to Amos Carpenter and James R. Shackelford, the sum of six hundred and eighty-one dollars and sixty-six cents, together with interest at the rate of ten per cent. per annum from date till paid, and if the interest is not promptually paid, then interest to be as principal and to bear interest at the rate of ten per cent. from due till paid. Negotiable and payable without defalcation or discount.

"Witness their hands and seal, this the fourth day of February, 1868.

                                 "Safrona E. Lutes.   [Seal.]
                                 "E. P. Lutes.        [Seal.]
                

"Now if said Safrona Lutes and E. P. Lutes, their executors and administrators shall pay the sum of money specified in said note, and all the interest that may be due thereon, according to the tenor and effect of said note, then this conveyance shall be void, otherwise, to remain in full force and virtue in law, upon this express condition; that the aforesaid, Amos Carpenter may proceed to sell the property hereinbefore described and conveyed, or any part thereof, at public vendue, to the highest bidder, for cash in hand, in the town of Ridgley, in the county of Platte and state aforesaid, first giving thirty days notice by putting up three written notices; one at Ridgley, one at Union Mills, and one at Canington's Mills, and upon such sale, and the payment of the purchase money, shall be executed and delivered a conveyance of property so sold to the purchaser thereof, and any statement of facts recited by the said Amos Carpenter, or James R. Shackelford in such conveyance shall be received as prima facie evidence of the truth thereof, and the said Amos Carpenter, and James R. Shackelford shall, with the proceeds of the sale aforesaid, shall first pay the expense of this trust, and next whatever may be in arrear and unpaid on said note, either of principal or interest, and the balance, if any, shall be paid over to the said Safrona Lutes and E. P. Lutes, or their legal representatives. And at any time after the first day of April next, if the said Safrona E. Lutes, and E. P. Lutes shall present to the said Carpenter or Shackelford, at least one-half of the aforesaid note, and interest, the aforesaid party shall accept the same, and place the amount so paid as credit on the aforesaid note.

"Witness our hands and seals this the fourth day of February, 1868.

                                  "Safrona E. Lutes.     [Seal.]
                                  "E. P. Lutes.          [Seal.]
                

"State of Missouri, County of Platte—ss.:

"Be it remembered, that on this 10th day of February, A. D. 1868, before me, A. Hill, a justice of the peace of the county and state aforesaid, personally appeared Safrona Lutes and E. P. Lutes, who are personally known to me to be the persons whose names are subscribed to the foregoing instrument of writing, and acknowledged the same to be their act and deed for the purposes therein mentioned, the day and year first above written.

                                              "A. Hill, J. P
                "Received on the within mortgage four hundred
                and seventeen dollars, this the seventh of
                February, 1868.         James R. Shackelford
                

"By mutual consent of Amos Carpenter and E. P. Lutes, the time of payment of the within named note has been extended to the first day of August, 1871.

"Filed for record October 6th, 10 o'clock, a. m.

                                   "F. M. Tufts, Recorder."
                

In August, 1869, Safrona E. Lutes departed this life, leaving surviving her E. P. Lutes, her husband, who thereupon became seised of a curtesy estate for life in the land here in controversy, and three infant girls, Rebecca, Nancy, and Elizabeth, aged then six, four, and two years, respectively, who married in 1885, 1882, and 1885, respectively, who since the dates last above have been, and now are, under coverture, and who with their respective husbands are the plaintiffs in this case.

On the 1st day of August, 1871, pursuant at least to the agreement of extension indorsed on the above instrument, the balance of $128 of the purchase price of this land fell due. Almost immediately thereafter the land was advertised for sale thereunder, and sold for the sum of $136.50, being about the amount due on the purchase price, including costs of foreclosure, and on said sale was bought by said E. P. Lutes, who was seemingly in possession thereof as holder of the life estate therein by curtesy.

While a so-called trustee's deed which was executed by Amos Carpenter and James R. Shackelford to E. P. Lutes recited that there was due and unpaid the whole sum of the original purchase price this is so patently an error and is so opposed to the true facts that we state those facts as they existed and not as the above instrument recites them. Said Lutes in October, 1873, sold and conveyed this land by warranty deed to William Yates, who was the original defendant herein, and Yates for almost 40 years and till his death remained in the adverse possession of it, claiming the same in fee. Lutes married again prior to the making of this conveyance to Yates, and is yet living, though averred to be...