McDonald v. Quick

• Decision Date: 08 June 1897
• Parties: McDonald et al., Appellants, v. Quick et al
• Court: Missouri Supreme Court

41 S.W. 208

139 Mo. 484

McDonald et al., Appellants, v. Quick et al

Supreme Court of Missouri, First Division

June 8, 1897

Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood Judge.

Affirmed.

Webster & Webster for appellants.

(1) Breckenridge was entitled to be subrogated to the rights of the mortgagee, having paid off the incumbrance, which was a charge on the estate, under the belief that he had the title thereto. Cobb v. Dyer, 69 Maine, 494; Wood v Smith, 51 Iowa 156; Young v. Morgan, 89 Ill 199; Brewer v. Nash, 16 R. I. 458; Dillow v. Warpel, 71 Iowa 106; Valle v. Fleming, 29 Mo. 152. Even though it might, in a certain sense, be called a mistake of law. Griffith v. Townlee, 69 Mo. 13; Lawrence v. Beaubien, 2 Bailey, 623. (2) This right of subrogation in Breckenridge passed to his grantee, and from him to plaintiffs by the conveyance of the property. Logan v. Taylor, 20 Iowa 297; Fisher v. Johnson, 5 Ind. 492; Given v. Carroll, 18 S.E. 1030; Shroyer v. Nickell, 55 Mo. 264; Kinneas v. Lowell, 34 Maine, 299; Allen v. Kennedy, 91 Mo. 324. (3) The fact that Breckenridge and plaintiffs may be said to have had constructive notice of the state of the title by record will not preclude the relief prayed for. Cobb v. Dyer, 69 Maine, 494; Spencer v. Spencer, 3 Jones Eq. (N. C.) 404; Converse v. Blumrich, 14 Mich. 109. (4) Plaintiffs have the right to charge the land with the amount Breckenridge paid in satisfaction of the mortgage, and the sums they and their grantors paid for taxes, improvements, etc., and credit it with the rents and profits, and are entitled to a lien on it for the amount of the excess of debits over credits. Shroyer v. Nickell, 55 Mo. 264; Sims v. Gray, 66 Mo. 614.

Everett W. Pattison and C. H. Coggeshall for respondents.

(1) The relief sought by plaintiffs, if the right thereto ever existed, is barred by limitation, and the laches of plaintiffs. (2) The persons who satisfied the deed of trust are not complaining nor seeking any relief. (3) There can be no relief on the ground of mistake. The Breckenridges purchased with full notice of the state of the title. Tydings v. Pitcher, 82 Mo. 379; Meier v. Blume, 80 Mo. 179; Orrick v. Durham, 79 Mo. 174; Major v. Bukley, 51 Mo. 227; Patterson v. Booth, 103 Mo. 402; Oliver v. Piatt, 3 How. (U.S.) 333, 410; McPherson v. Rollins, 107 N.Y. 316. (4) The facts do not present a case falling within the equitable doctrine of subrogation. Foote v. Sanders, 72 Mo. 616; Kleimann v. Geiselmann, 114 Mo. 437; Anglade v. St. Avit, 67 Mo. 434; Bunn v. Lindsay, 95 Mo. 250; Goodyear v. Goodyear, 72 Iowa 329; Caley v. Morgan, 114 Ind. 350. (5) The case of Valle v. Fleming, supra, and like cases, have no application. Henry v. McKerlie, 78 Mo. 416; Burden v. Johnson, 81 Mo. 318; Price v. Estill, 87 Mo. 378.

OPINION

Brace, J.

On the first day of May, 1860, one Oliver Quinette, being then the owner of the lot of ground in the city of St. Louis described in the petition, by his deed of that date conveyed the same, in consideration of the sum of $ 18,312.76, to Henry W. Williams, his successors and assigns, in trust for the following purposes:

"First. In trust for the sole and separate use, benefit, enjoyment and behoof of Mary Eliza Miles, wife of Stephen W. Miles, Jr., during the term of her natural life, and entirely free from all control, restraint or interference whatsoever on the part of her husband, the said Stephen W. Miles, Jr., the said Mary Eliza Miles to have, hold, use, occupy, and enjoy the exclusive and undisturbed possession of said tract of land and its appurtenances during the term of her natural life, as aforesaid, with full power, at any time during the lifetime of her husband, Stephen W. Miles, Jr., but not after his death, to direct the sale, leasing, incumbrance, or other disposition thereof by said party of the second part, and his successors in trust, at her will and pleasure. Also to receive to her own separate use and benefit the proceeds of such sale or incumbrance, and all rents and profits arising or accruing from the leasing or other disposal thereof; the said party of the second part, or his successors in trust, holding said tract of land subject at all times, during the lifetime of said Stephen W. Miles, Jr., to the direction in writing under the hand and seal, and without the intervention of her husband, of said Mary Eliza Miles, as to the disposal of said lot of ground and its appurtenances, whether by lease, deed of incumbrance, conveyance in fee absolute, assignment, or transfer of said trust, or otherwise.

"Second. In the event of the death of the said Mary Eliza Miles, the said Stephen W. Miles, Jr., her surviving, said party of the second part, or his successors in trust, to hold said property to the use, benefit and behoof of said Stephen W. Miles, Jr., during the term of his natural life, in the same manner as is above provided, and subject at all times to the direction, in writing, of said Stephen W. Miles, Jr., as to the disposal of said lot in any manner whatsoever, whether by lease, deed of incumbrance, conveyance in fee absolute, assignment, or transfer of trust, or otherwise.

"Third. If after the death of said Mary Eliza Miles and said Stephen W. Miles, Jr., said property remain undisposed of by them, said party of the second part, and his successors, to hold said tract of land and its appurtenances to the use, benefit and behoof of the children then living, born of the marriage between said Stephen W. Miles, Jr., and Mary Eliza Miles, in equal proportions, share and share alike, and if any children born of said marriage should then be dead, leaving issue, said issue to be entitled to the share which said child would have been entitled to if living.

"Fourth. In the event of the death of said Stephen W. Miles, Jr., and of all the children born of said marriage, without issue, said Mary Eliza Miles surviving, said party of the second part or his successors in trust, to convey said tract of land and its appurtenances in fee simple to whomsoever the said Mary Eliza Miles should by her last will and testament direct, and in default of such will, to convey the same in fee simple to the heirs at law of said Stephen W. Miles, Jr.

"Fifth. In the event of the death of said Mary Eliza Miles, and of all the children born of said marriage without issue, said Stephen W. Miles, Jr., then surviving, said party of the second part, or his successors in trust, to convey said tract of land and its appurtenances in fee simple to said Stephen W. Miles, Jr., or to whomsoever he might in writing direct."

By further provision of the deed, power is given to the said Mary Eliza Miles and Stephen W. Miles, Jr., each, or either of them, whenever they, or either of them, shall have cause, or deem it necessary or advisable, to appoint a trustee in place of the said Williams, in the manner therein specified. By virtue of such power, the husband, Stephen W. Miles, Jr., was on the sixteenth of September, 1867, duly substituted as trustee in place of said Williams, and afterward, to wit, on the first day of September, 1869, the said Stephen W., as such trustee, by the written request and direction of his wife, executed a deed of trust on the property to secure the payment of four notes of the said Stephen W., of even date therewith, aggregating $ 12,000, and interest thereon from date at the rate of ten per cent per annum; the principal payable five years after date, and interest notes payable semiannually.

In April, 1872, Stephen W. Miles, Jr., died, and upon the third of July, 1872, upon the petition of his widow, the said Mary E., the said Henry W. Williams was appointed by the St. Louis circuit court trustee instead of the said Stephen W., whose death was recited in the decree; and afterward, to wit, on the fifteenth of September, 1873, Mrs. Miles and Williams, as trustee, in consideration of the sum of $ 17,000, conveyed the property to George Breckenridge in trust for the sole and separate use of his wife, Julia. Mrs. Miles joined in the deed as grantor, describing herself therein as the "widow of Stephen W. Miles, deceased," and with the trustee warranting the title. The conveyance to the Breckenridges was made subject to the deed of trust aforesaid which was assumed as a part of the consideration money; was executed and acknowledged also by them, and contained the following covenant on their part: "And said parties of the second and third parts for themselves, their heirs, executors, and administrators, do by their signatures and seals to this instrument covenant and agree to and with the said Mary E. Miles that they will pay and take up said notes as they severally mature and become due and payable and deliver the same to said Mary E. Miles to be canceled; the property hereby conveyed to remain mortgaged and pledged to secure the faithful performance of this covenant." The Breckenridges took possession of the property immediately after their purchase, paid off the notes secured by the deed of trust on the twenty-third of December, 1874 (when satisfaction thereof was acknowledged by the assignees of the cestui que trust and the property released by them upon the margin of the record thereof), and remained in in the undisturbed possession of the property until the twenty-seventh of August, 1881, when by their warranty deed of that date they sold and conveyed the same to James M. Pierce for the consideration of $ 14,000, who on the fifteenth day of September, 1881, by warranty deed of that date sold and conveyed the property to Benjamin F. Webster for the consideration of $ 15,000, who on the first day of July, 1882, by his warranty deed of that date sold and conveyed the property to the plaintiffs for the consideration of $ 9,500, subject to...