Maupin v. Longacre

• Decision Date: 11 October 1926
• Docket Number: No. 25534.,25534.
• Citation: 288 S.W. 54
• Parties: MAUPIN v. LONGAGRE et al.
• Court: Missouri Supreme Court

288 S.W. 54

MAUPIN v. LONGAGRE et al.

No. 25534.

Supreme Court of Missouri, Division No. 1.

October 11, 1926.

Motion for Rehearing Overruled November 15, 1926.

Appeal from Circuit Court, Johnson County; A. Calvird, Judge.

Action by Gladys Maupin, by her next friend, L. V. Maupin, against Stanley I. Longacre and another. Judgment for plaintiff and defendants appeal. Reversed and remanded, with directions.

W. E. Suddath and M. D. Aber, both of Warrensburg, for appellants.

N. M. Bradley, of Warrensburg, and E. B. Silvers, of Kansas City, for respondent.

RAGLAND, P. J.

This is an action to determine title to real estate and for equitable relief, under section 1970, R. S. 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 tiled 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 cry, 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 K, executed a deed of trust on the land to secure to one Jennie E. Smith the payment of a promissory note for $600, due 5 years thereafter with interest at the rate of 6 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 19, in township 47, range 28, in Johnson county Mo., subject to the dower and homestead of the widow and all incumbrances—she did, on Thursday the 8th day of August, A. D. 1907 (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 19, township 47, range 28, subject to the dower and homestead of the widow, and all incumbrances, to S. I. Longacre for the price and sum of $800 cash. And the said S. I. Longacre has fully complied with the terms of said sale, and has paid to me the sum of $800 in cash, as required by said order of sale, and I certify that said real estate was sold for not less than three-fourths of its appraised value; all of which is respectfully submitted."

The sale so reported was confirmed and the administratrix ordered to execute a deed to the purchaser. A deed was executed in conformity with the order. The deed itself is not set out in the record. The abstract recites parenthetically:

"Said deed is ordinary form of administrator's deed conveying the described land to defendant reciting order as above."

S. I. Longacre, the purchaser, was a brother of the administratrix. On September 11, 1907, he executed a quitclaim deed, wherein he purported to convey the land to her individually, for a consideration of $800. The deed of trust which had been given by Welborn and his wife to secure the Smith note for $600 was satisfied of record May 26, 1908.

Two or three years after the death of her husband, Drucie Welborn married one Shepherd. On October 4, 1913, she and her husband executed a deed of trust on the land in question to secure to one Carmichael the payment of a note for $700, due 5 years thereafter, with 6 per cent. annual interest thereon. A few days later a second deed of trust to one Tevis, as trustee, was executed to secure the payment of a note for $375 due one year thereafter. In June, 1916, an execution, sued out on a judgment for $200 against Shepherd and his wife and in favor of the defendant Bank of Kingsville was levied upon the land. On November 3, 1916, the land was sold at a foreclosure sale under the Tevis deed of trust to defendant Longacre for $675 and he thereupon received a trustee's deed. On December 16, 1916, Longacre obtained from the defendant bank a loan of $1,500 and gave a deed of trust on the land to secure it. Out of the proceeds of the land he satisfied the Carmichael deed of trust and the outstanding judgment lien held by the bank. So that the record title to the land at the commencement of this suit appeared to be in defendant Longacre, subject to the lien of a deed of trust to the bank securing an indebtedness of $1,500.

Mrs. Shepherd died in the year 1916. Plaintiff must have been about 11 years of age at that time. After her mother's death she was taken into the home of her uncle, defendant Longacre, and there cared for as a member of his family until she married. When this suit was commenced she was but 16 years of age.

There was evidence on the part of defendants tending to show that James M. Welborn at the time of his marriage was wholly without means; that property of his wife was sold and the proceeds invested in a store in a little town or village known as Robbins; that this store was subsequently sold and the money realized from the sale was used to purchase a half interest in a similar mercantile enterprise at Chapel Hill, in Lafayette county; and that that interest was exchanged for the land in suit. The land at the time of Welborn's death did not exceed in value $1,500.

The petition alleges that James M. Welborn died the owner in fee of the land in controversy; that the same was his homestead; that he left surviving him a widow and a minor child; that plaintiff is his only heir; and that the purported sale of the land by the administratrix was void (1) because it was an attempt to sell the Land to herself and (2) because the debts upon which the order of sale was based were not legally charged thereon in the lifetime of the homesteader. It further alleges the remarriage of the widow, the execution by her of the Carmichael and Tevis deeds of trust, her death, the foreclosure of the Tevis deed of trust and the purported purchase of the land by defendant Longacre, and the execution by him of the deed of trust to the defendant bank. It prays that the court ascertain and determine the right, title, and interest of each of the several parties; that plaintiff be adjudged to be the owner in fee simple; that the deeds under which defendants claim be canceled and set aside; and that plaintiff have general relief.

The defense pleaded by the defendant Longacre sufficiently appears from the following paragraphs of his separate answer:

"Further answering, this defendant says that, although the legal title to said real estate vested in James M. Welborn at the time of his death, said Welborn was not the owner of said land, but held same in trust for said Drucie M. Welborn, his wife; that said land was in truth and in fact bought with the separate money and means of Drucie M. Welborn, the proceeds of the sale of her own real estate, owned by her prior to her marriage with ...