Mahoney v. Nevins

• Decision Date: 03 July 1905
• Citation: 88 S.W. 731,190 Mo. 360
• Parties: MAHONEY v. NEVINS et al.
• Court: Missouri Supreme Court

88 S.W. 731

190 Mo. 360

MAHONEY v. NEVINS et al.

Supreme Court of Missouri, Division No. 2.

July 3, 1905.

1. TENANTS IN COMMON—PURCHASE OF INCUMBRANCE—CONTRIBUTION.

Where a co-tenant buys in an incumbrance without any express agreement, the other co-tenants are bound in equity to contribute their respective proportions of the consideration paid.

2. SAME—EFFECT OF PURCHASE.

A co-tenant cannot, by buying in an out-standing incumbrance. acquire title as against his co-tenants.

3. HUSBAND AND WIFE—DEATH OF HUSBAND —PERSONAL ESTATE—WIDOW'S TITLE.

Where the personal estate left by a deceased husband and in the possession of his widow did not exceed the amount to which she was absolutely entitled under Rev. St. 1899, §§ 107, 108, though there was no administration, the widow would, in equity, be regarded as having title.

4. SAME—WIDOW'S RIGHTS IN GROWING CROPS.

A widow with no minor children was entitled to the crops growing on the homestead at the time of the husband's death.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Suit by Henry Mahoney against Mollie Nevins and others, and from the decree granting insufficient relief plaintiff appeals. Affirmed.

Lozier & Morris and S. J. Jones, for appellant. Conkling & Rea, for respondents.

GANTT, J.

This is an appeal from a decree in equity by the circuit court of Carroll county setting aside a trustee deed to the homestead of Patrick Mahoney, deceased, and adjudging contribution by the plaintiff and the other heirs of Patrick Mahoney to defendant Catherine Mahoney on the ground that the said deed of trust and note secured thereby was acquired by said Mollie Nevins as a tenant in common with plaintiff and the other heirs of Patrick Mahoney to the exclusion of plaintiff and said heirs. Patrick Mahoney and defendant Catherine Mahoney, his wife, on the 15th of December, 1890, executed to Gus Siegel a deed of trust to secure payment of a note for $360, bearing interest at 8 per cent. per annum, on 45.96 acres off the south half of the southwest quarter of section 18, township 55, range 21, Carroll county, Mo., which land was worth about $1,300, and at that time was the homestead of said Patrick Mahoney. On the ____ day of February, 1891, while the deed of trust was still a lien on the land, Patrick Mahoney died intestate, leaving no other debts, still owning and residing on this land as his homestead. He left surviving him his widow, Catherine Mahoney, who was entitled to a homestead in the land; Henry Mahoney, a son, the plaintiff; Mollie Nevins, a daughter; and Cora, Mary, William, and Jessie Rinehart, grandchildren, being the children and sole heirs in law of a deceased daughter, named Kate Rinehart. Catherine Mahoney, the widow, was entitled to use and occupy all the premises, upon the death of her husband, as her homestead, and she was also entitled, by reason thereof, to all rents, issues, and profits arising therefrom. Catherine Mahoney was the mother of Henry Mahoney and Mollie Nevins, and the grandmother of the Rinehart children, and continually resided on the homestead until shortly before the suit. Patrick Mahoney at his death owned personal property consisting of a team of horses, five cows, twelve hogs, some grain and hay, and farm machinery, worth less than $300. The twelve hogs were soon sold by the widow, and delivered by Henry Mahoney, the son, and all the money arising therefrom used to pay the funeral expenses. At the time of Patrick Mahoney's death there was also growing on this homestead property a crop of wheat, which was afterwards harvested, and sold by his widow for $238 gross. Henry Mahoney hauled this wheat to market at the request of his mother, and she paid him for his work. No letters of administration were ever granted on the estate of Patrick Mahoney by the probate court of Carroll county, nor was there any order or judgment of said court refusing to grant letters of administration upon the ground that the personal assets of the estate were less in quantity and value than allowed the widow by law; but the evidence conclusively shows that in reality the value of the personal property would not exceed the amount allowed the widow by law. This is a suit in equity growing out of the deed of trust and note executed by Patrick Mahoney to said Gus Siegel. In December, 1891, Catherine Mahoney furnished Mollie Nevins with $295 with which to buy said note, which at that time amounted to $388; Mollie Nevins furnishing the balance of the money to buy the note. The portion of the money paid of Catherine Mahoney for the note was derived by her from the sale of the wheat and personal property left by her husband. The note was assigned to Mollie Nevins, who, on the 13th of November, 1900, had the deed of trust securing the same foreclosed in accordance with the terms and conditions thereof. At such foreclosure a life estate was conveyed to Catherine Mahoney and the remainder in fee to Mollie Nevins, whereupon the plaintiff instituted this suit to cancel the deed of trust, in which suit Mollie Nevins, Catherine Mahoney, and the Rinehart children were all made defendants. The amended answer of defendants Mollie Nevins and Catherine Mahoney states that the purchase of said note "was made with the full knowledge and consent of plaintiff, and not in fraud or prejudice of his rights; and that for a period of almost ten years, although knowing said facts, he failed and neglected to make any objection thereto, or to make any contribution on his part on account of the purchase of said incumbrance"; and, "if the court should find that plaintiff and the other defendants...