Maupin ex rel. Next Friend, L. v. Longacre

• Decision Date: 11 October 1926
• Docket Number: 25534
• Citation: 288 S.W. 54,315 Mo. 872
• Parties: Gladys Maupin, by Next Friend, L.V. Maupin, v. Stanley I. Longacre and Bank of Kingsville, Appellants
• Court: Missouri Supreme Court

288 S.W. 54

315 Mo. 872

Gladys Maupin, by Next Friend, L.V. Maupin, v. Stanley I. Longacre and Bank of Kingsville, Appellants

No. 25534

Supreme Court of Missouri

October 11, 1926

Motion for Rehearing Overruled November 15, 1926.

Appeal from Johnson Circuit Court; Hon. C. A. Calvird Special Judge.

Reversed and remanded (with directions).

W E. Suddath and M. D. Aber for appellants.

(1) This is an action to determine title and it was therefore the duty of the court to adjust all equities and claims of every kind between the parties. Sec. 1970, R. S. 1919. (2) All the evidence is that this eighty acres was bought with the proceeds and increase of the separate means of Drucie M Welborn, the widow. So that the land was the proceeds of the separate means of Drucie and is in equity her property. Sec. 7328, R. S. 1919; Broughton v. Brand, 94 Mo. 169; Owings v. Wiggins, 133 Mo. 630; Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 536; Hudson v. Wright, 204 Mo. 412. (3) Even if the property were a homestead, it may be sold for a debt antedating the acquisition of the homestead. Armor v. Lewis, 252 Mo. 568; Anthony v. Rice, 110 Mo. 223; Broyles v. Cox, 153 Mo. 242; Balance v. Gordon, 247 Mo. 119; In re Bovard's Estate, 231 S.W. 602. (4) And if the property were a homestead, the proof all shows that it was at that time incumbered by the lien of a deed of trust placed thereon by James M. Welborn and his wife as a purchase-money debt of six hundred dollars, and also subject to the purchase money claim of Drucie M. Welborn for $ 485. And it was uncontradicted that Drucie M. Welborn had paid off this $ 600 encumbrance, and never got her $ 485 debt in any other way. She was, therefore, under the most elementary principles of equity entitled to and was subrogated to these rights and had her rights, on plaintiff's own theory, in the property to that amount, and it was admitted by plaintiff, and uncontradicted that $ 1200, was all the property was worth at the time in question. (5) Defendant holds his title by conveyance from Tevis, trustee; Tevis concededly was an innocent holder for value and held full title, and conveyed a like title to appellant Longacre. Craig v. Zimmerman, 87 Mo. 475; Hendricks v. Callaway, 211 Mo. 536.

N. M. Bradley and E. B. Silvers for respondents.

(1) The sale by the administratrix to herself, accomplished through the subterfuge of passing title to her brother, was "null and void." R. S. 1919, sec. 161; Green v. Holt, 76 Mo. 677; State ex rel. Whitlow v. Am. Surety Co., 191 Mo.App. 191; Gilmore v. Thomas, 252 Mo. 147. (2) This land being James M. Welborn's homestead. there could be no valid sale of it by his administrator to pay his debts. R. S. 1919, sec. 5857; Balance v. Gordon, 247 Mo. 119; In re Powell's Estate, 157 Mo. 151; In re Rombauer Estate, 256 S.W. 1066. The only exception to the rule against sale of a homestead to pay debts, is that the same is subject to levy of attachment and execution during the homesteader's lifetime, for debts existing prior to acquisition of the homestead. R. S. 1919, sec. 5860; Balance v. Gordon, 247 Mo. 119. After the homestead owner's death, the homestead becomes an estate instead of a privilege; and around this estate of the widow and minors the law forms a barrier which cannot be trespassed by the administrator to pay any debt, pre-existing or otherwise. Brewington v. Brewington, 211 Mo. 48; Balance v. Gordon, 247 Mo. 119; In re Rombauer Estate, 256 S.W. 1066. The wrongful sale of the homestead to pay debts is absolutely void, and passes nothing. R. S. 1919, sec. 5857; New Madrid Banking Co. v. Brown, 165 Mo. 33; Ehlers v. Potter, 219 S.W. 918; Dennis v. Gorman, 233 S.W. 53; Patton v. Buxton, 238 S.W. 118. (3) This administrator's sale being void, and not merely voidable, no one can become an innocent purchaser of the land, because no title ever passed at all. Stratton v. Cole, 203 Mo.App. 257; Gilmore v. Thomas, 252 Mo. 147; Gross v. Watts, 206 Mo. 373; German Sav. & Loan Soc. v. DeLashmutt, 67 F. 399. (4) The record of the probate proceeding upon which title of defendants rests shows in four places that this was Welborn's homestead. So defendants took with notice thereof, and can't be innocent. Connor v. McCoy, 83 S.C. 165; Board of Education v. Berry, 62 W.Va. 433; Williamson v. Beardsley, 137 F. 467; Lady Washing Con. Co. v. Wood, 45 P. 811. (5) If Drucie M. Welborn had any right to enforce in equity against this land, on the basis that her money went into its purchase, she waived it for all time when she elected to treat the $ 325 as a loan to her husband, and pursued her legal remedy by having it allowed as a debt against his estate. At the same time she inventoried this land as belonging to him.

Ragland, P. J. All concur, except Graves, J., absent.

OPINION

RAGLAND

This is an action to determine title to real estate and for equitable relief, under Section 1970, Revised Statutes 1919.

The land which is the subject of the controversy is the west half of the northeast quarter of Section 19, Township 47, Range 28, in Johnson County. James M. Welborn is the common source of title. He acquired the title by deed dated March 18, 1905, and which he filed for record July 29th of the same year. At the time he obtained the title he moved onto the land, accompanied by his wife and an infant daughter. He at once set about farming, and put in a crop. Presently he was advised by a physician that he had tuberculosis, and that an immediate change of climate was the only thing that offered hope of prolonging his life. He thereupon had a public sale at which he sold all of his property except the farm and growing crop, and then went to Colorado, taking his wife and child with him. The altitude there affected him adversely, he brought his family back to Johnson County, left them with relatives and then went to Texas in search of favoring climatic conditions. His health did not improve and he started home, dying on the way, February 3, 1906. He left surviving him a widow, Drucie M. Welborn, and one child, Gladys -- the plaintiff in this case.

On August 16, 1905, Welborn, being joined therein by his wife, Drucie M., executed a deed of trust on the land to secure to one Jennie E. Smith the payment of a promissory note for $ 600, due five years thereafter, with interest at the rate of six per cent per annum payable annually. The instrument was recorded the same day it was given. A brother-in-law gathered Welborn's crop for him during his absence in the fall of 1905.

On February 12, 1906, letters of administration on Welborn's estate were granted to his widow by the Probate Court of Johnson County. She thereafter filed an inventory and an appraisement, from which it appeared that the estate of the decedent consisted of the land in controversy and personal property of the value of $ 297.50. The personal property being within the amount allowed the widow as her absolute property by statute, she made an appropriation of it. On the 27th of February, 1907, she filed a claim against the estate of her husband for $ 485. The claim paper, after setting out the items of the claim, recited: "The above money so reported and set out here was loaned to my deceased husband in his lifetime and on the 18th day of March, 1905, and for the purpose of buying the west half of the northeast quarter of Section 17, Township 47, Range 28 (the land in suit) and that her money is still invested in said land." An administrator pendente lite was appointed, a hearing had and the claim allowed and classified as a demand of the fifth class. In addition to the above, demands in the aggregate sum of $ 120.90 were allowed. At the May term, 1907, of the probate court, at the time of making her first annual settlement, the administratrix applied for an order to sell the real estate. The order was made. Eliminating recitals it was in this language:

"It is therefore ordered that the said administratrix do sell, at private sale, and for not less than three-fourths of its appraised value (first having the same duly appraised according to law), the said real estate in said petition mentioned and subject to the homestead right of said widow, and that she report her proceedings to the court at its next regular term."

Following the making of the order of sale the administratrix caused the land to be appraised. It was appraised, "subject to all the homestead and dower rights of the widow of said deceased in and to said land, at the sum of $ 800." At the August term, 1907, of the probate court the administratrix made report of a sale as follows:

"That in obedience to the order of this court, made at its May term A. D. 1907, directing her to sell, at private sale, the real estate in said order described, as follows, to-wit:

"The West half of the northeast quarter of Section Nineteen, in Township Forty-seven, Range Twenty-eight, in Johnson County Missouri, subject to the dower and homestead of the widow and all encumbrances, she did, on Thursday the eighth day of August A. D. one thousand nine hundred and seven (having first had the same duly appraised by Charles Necessary, William T. Windsor and Charles T. Noland, three disinterested householders of said county, they having been first duly sworn, as appears by the affidavit herewith filed, marked Exhibit A), sell the said real estate as follows, viz:

"The west half of the northeast quarter of Section Nineteen, Township Forty-seven, Range Twenty-eight, subject to the dower and homestead of the widow and all encumbrances, to S. I. Longacre for the price and sum of eight hundred dollars, cash.

"And the said S. I. Longacre has fully complied with the terms of said sale, and has paid to me the sum of eight hundred dollars in cash, as required by said Order of...