In re Lee
| Decision Date | 29 April 1927 |
| Docket Number | No. 25646.,25646. |
| Citation | 213 N.W. 736,171 Minn. 182 |
| Parties | In re LEE et ux. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Charles Bechhoefer, Judge.
In the matter of the application of Joseph Lee and wife for the issuance of a certificate of title to certain land in lieu of another certificate. Decree establishing a life estate in petitioner Alvina Lee, with remainder to Lawrence Thompson, and denying the mortgage of Elizabeth Marie Wartha any lien on the remainder. From an order denying their motion for a new trial, petitioners appeal. Affirmed.
Leslie C. Smith, of St. Paul, for appellants.
Christofferson, Walsh, Christofferson & Jackson, of St. Paul, for respondent.
By this proceeding, Joseph and Alvina Lee, husband and wife claiming as joint tenants, seek a new certificate of title of a St. Paul residence property. Elizabeth Marie Wartha, the mortgagee later referred to, joins in the petition. The decision below established a life estate in Alvina Lee, one of the petitioners, with remainder to her minor son, Lawrence Thompson, by a former marriage. It also denies the Wartha mortgage any lien on the remainder. This appeal is by petitioners from the order denying their motion for a new trial.
The fee was in William E. Thompson at the time of his death, intestate, in 1917. He left surviving him his widow (now Alvina Lee, one of the petitioners), and their son, the said minor, Lawrence Thompson. Being the homestead, the property descended to the widow and son, to the former a life estate and to the latter the remainder in fee. The widow became the administrator of the estate. Mr. R. A. Walsh, of the St. Paul bar, thereafter became the guardian of the minor, and in that capacity raised the issue upon which the case was tried below. At the time of Mr. Thompson's death, the property was subject to a mortgage to one Danz for $850, some accrued taxes, and a small mechanic's lien.
There are findings as follows: During her widowhood and until she married her co-petitioner, Joseph, Alvina Lee occupied the premises as her home. Since their marriage, the Lees have continued so to occupy them. For four years or more they neglected to pay taxes or interest on the mortgage debt. They did not keep up the insurance. The result was a foreclosure at which the property was bid in by Danz, the mortgagee. Both applicants knew of the threatened foreclosure for some time prior thereto. Mrs. Lee, as the representative of the estate of her former husband, was in possession of property by the proper use of which the foreclosure could have been prevented. Mr. Walsh, the guardian, was kept in ignorance of the foreclosure, although the estate of his ward could have paid the portion of the mortgage indebtedness properly chargeable to the ward. The applicants, purposing to exclude the ward from his title as remainderman, purchased the sheriff's certificate of sale within the period allowed for redemption and caused it to be assigned to "a friend," who, after the period for redemption had expired, conveyed to applicants as joint tenants. In the meantime, and as a part of their plan to divest young Thompson of his title, the applicants executed the Wartha mortgage for $1,000.
1. Having so found the facts, the learned trial judge correctly applied the rule of Whitney v. Salter, 36 Minn. 103, 30 N. W. 755, 1 Am. St. Rep. 656, and Upton v. Merriman, 116 Minn. 358, 133 N. W. 977, Ann. Cas. 1913B, 491:
"A life tenant, in possession of property subject to mortgage, must keep down the interest accruing on such mortgage, and if he purchases an incumbrance upon or adverse title to the estate he will be regarded as having made the purchase for the joint benefit of himself and the remainderman."
He cannot "hold it for his own exclusive benefit, if the other parties interested in the estate will contribute their share of the amount paid for the purchase." Accordingly, the judgment ordered below is conditioned upon the payment by the guardian out of the property of his ward of the latter's share of the incumbrances against the property at the time of the father's death.
2. The correctness of the computations made in order to ascertain that share are not in question, but the method is. The latter is that stated in Pomeroy's Eq. Jur. (4th Ed.) § 1223, and approved in Engel v. Ladewig, 153 Mich. 8, 116 N. W. 550. Mr. Pomeroy's statement is:
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