McMurray v. McMurray
| Decision Date | 26 May 1914 |
| Citation | 167 S.W. 513,258 Mo. 405 |
| Parties | MARY McMURRAY et al., Appellants, v. KATIE McMURRAY et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Affirmed.
C. S McLane, H. D. Kissenger and Frans E. Lindquist for appellant Martin; Albert E. Martin, of counsel.
Leonard Waddell for appellant Elbert.
(1) If said Mary McMurray purchased the property, at such trustee's sale, while the owner of the equity of redemption, such sale has no more legal and equitable bearing on her interest in the land than if she had paid off such $ 2500 deed of trust and received a release thereof. She but redeemed her land from her deed of trust. Kemper v Berkeley, 79 Mo.App. 578; Freeman v. Moffitt, 119 Mo. 280. However, Mrs. Ketchum claims that she paid the purchase price of the property, out of her loan to Mr Batson. Had she paid off such deed of trust of $ 2500, either at the request of Mary McMurray, or to protect her own interest, there would be no question but that she would, in equity, be entitled to be subrogated to the rights of the original mortgagee in the $ 2500 deed of trust. Under the pleadings, she did neither. She was a mere volunteer. Hence, no subrogation can be made. Roberts v. Best, 172 Mo. 81; Kirby v. Tallmadge, 160 U.S. 379; Squires v. Kimball, 208 Mo. 110; Wiggenhorn v. Daniels, 149 Mo. 165; Leavitt v. LaForce, 71 Mo. 253; Davis v. Briscoe, 81 Mo. 27; Insurance Co. v. Smith, 117 Mo. 261; Stuart v. Ramsey, 196 Mo. 416; Sensenderfer v. Kemp, 83 Mo. 588; Shaffer v. Detie, 191 Mo. 393. (2) The decree is not supported by the pleadings. State ex rel. v. Muench, 217 Mo. 124. (3) The court erred in holding that such liens, in favor of Helen V. Elbert, were inferior and subject to the pretended lien of Beulah L. Ketchum. R. S. 1909, secs. 1806, 2127, 2128, 2881. (4) No jurisdiction to allow Ketchum claim. (5) No jurisdiction to appoint special commissioner. R. S. 1909, sec. 2198.
Hogsett & Boyle for respondent Ketchum.
(1) The circuit court had full jurisdiction to give to this respondent the relief to which she was entitled, to render the judgment for $ 6817, to declare such judgment a lien on the property in question, to make the proper provisions for the redemption of said property from said lien, and to provide for the foreclosure of said lien in the event said property was not redeemed. (a) This is an equitable proceeding and the relief granted to this respondent is equitable in its nature, and the probate court had no jurisdiction whatever in the case; and this respondent would have had no adequate remedy and, in fact, no remedy at all, in the probate court. In re Estate of Strom, 213 Mo. 1; Matson & May v. Pierson, 121 Mo.App. 121; Jenkins v. Morrow, 131 Mo.App. 298; Hanson v. Neal, 215 Mo. 256; Baumhoff v. Railroad, 205 Mo. 248; Secs. 498, 499, R. S. 1909. (b) The relief to which this respondent became entitled by virtue of the court's decree is not a demand, within the meaning of Sec. 498, R. S. 1909, and the judgment rendered in behalf of this respondent does not constitute a demand against the estate of an insane person within the meaning of said section, but is simply a lien against the real estate in question. See authorities supra. (c) Even if it be said that respondent's claim was a demand, still it did not accrue until the deeds in question were set aside, and this was after letters of guardianship had been issued. Therefore, Sec. 498, R. S. 1909, has no application. St. Louis v. Hollrah, 175 Mo. 79. (d) Even though respondent's claim should be held to be a demand of the character referred to in Sec. 498, R. S. 1909, and it be held that respondent would have had an adequate remedy in the probate court and that the relief to which she was entitled was not equitable in its character, the circuit court would still have jurisdiction of the case because it has concurrent jurisdiction with the probate court in a case of that character. Sec. 3318, R. S. 1889; Secs. 498, 499, 500 and 3956, R. S. 1909; St. Louis v. Hollrah, 175 Mo. 79. (e) It being conceded that the circuit court had jurisdiction of the cause for the purpose of cancelling the deeds in question, the court thereby had jurisdiction for all purposes and could adjudge the equities of all parties concerned and give to them proper relief. McClure v. Bank, 160 S.W. 1005; Wehr v. Sullivan, 217 Mo. 167; State ex rel. v. Muench, 217 Mo. 124; Powell v. Powell, 217 Mo. 571; Gill v. Safe Co., 156 S.W. 811. (2) The court did not err in holding that this respondent was an innocent incumbrancer and purchaser in good faith, for value without notice. (a) This court, in the absence of the testimony, will presume, as against both appellants, that the testimony justified the findings of the trial court in this respect and that this respondent did everything which the law required of her. Railroad v. Wyatt, 223 Mo. 347; Nall v. Nall, 243 Mo. 254; Patterson v. Insurance Co., 164 Mo.App. 157; Sommer v. Bryson, 168 Mo.App. 335. (b) The rule invoked by the administrator to the effect that respondent should have made inquiry of Mary McMurray, relative to the interest which Mary McMurray claimed in said premises has no application, because the lower court held that both the $ 2500 deed of trust and the $ 600 deed of trust were valid deeds and made at the instance and request of Mary McMurray by her duly authorized agents. (c) A grantor having made a deed purporting to convey all the grantor's interest and then remaining in possession under a secret arrangement, is estopped in any event to invoke such rule. Van Keuren v. Railroad, 38 N. J. L. 165; Bank v. Batty, 30 N.J.Eq. 127; Galford v. Gillett, 55 Ill.App. 576; Sprague v. White, 73 Iowa 670; Koon v. Trammel, 71 Iowa 132; May v. Sturdivant, 75 Iowa 116, 9 Am. St. 463; Dodge v. Davis, 85 Iowa 77; Crooks v. Jenkins, 124 Iowa 317, 104 Am. St. 326; McNeil v. Jordan, 28 Kan. 7; Sellars v. Crossan, 52 Kan. 570; Hockman v. Thuma, 68 Kan. 519; Bloomer v. Henderson, 8 Mich. 395, 77 Am. Dec. 453; Kerr v. Kingsbury, 39 Mich. 150, 33 Am. Rep. 362; Abbott v. Gregory, 39 Mich. 68; Hafter v. Strange, 65 Miss. 323, 7 Am. St. 659; Brophy Min. Co. v. Gold & S. Min. Co., 15 Nev. 101; Land & Invest. Co. v. Smith, 7 N.D. 236; Bldg. & L. Assn. v. Dawson, 7 Ohio N. P. 601; Forsha v. Longworth, 1 Ohio C. C. 271, 22 Ohio L. J. 354; Exon v. Dancke, 24 Ore. 110; Smith v. Phillips, 9 Okla. 297; Love v. Breedlove, 75 Tex. 649; Eylar v. Eylar, 60 Tex. 315; Bingham v. Kirkland, 34 N.J.Eq. 229; Railroad v. Oyler, 82 Ind. 394; Humphrey v. Hurd, 29 Mich. 44; Jeffery v. Hursh, 45 Mich. 59; Brigham v. Thompson, 12 Tex. Civ. App. 562; Tuttle v. Churchman, 74 Ind. 311. (d) Especially is the last proposition true where the grantor has, as in this case, made the deed for a fraudulent purpose and for the express purpose of deceiving the general public. Trust Co. v. O'Brien, 32 Ore. 336; Bank v. Batty, 30 N.J.Eq. 127. (e) Such rule could not be invoked in any event by appellant Elbert because she was never in possession and never had any right to the possession of the property. (3) The lien given to appellant Elbert was properly held to be subordinate to the lien of this respondent. (a) This court will presume that the evidence showed such lien to be subordinate and that the decree of the court below was justified. Railroad v. Wyatt, 223 Mo. 347; Nall v. Nall, 243 Mo. 247; Patterson v. Insurance Co., 164 Mo.App. 157; Sommers v. Bryson, 168 Mo.App. 335. (b) The court did not err in refusing to treat the cross-petition of appellant Elbert as confessed, and even if it did, such question could not be reviewed in the absence of a motion in arrest. Railroad v. Wyatt, 223 Mo. 347; Trust Co. v. Merritt, 158 Mo.App. 656; Zinc Co. v. Assurance Corp., 144 Mo.App. 386. (c) The cross-petition of appellant Elbert was denied by the plaintiff and its allegations thereby put in issue. (d) Appellant Elbert admits she filed no motion for judgment on the pleadings. Having failed to do this and having gone to trial and tried the cause on the theory that the allegations of her cross-petition were in issue, she cannot now raise this question. Benne v. Miller, 149 Mo. 232; McDonnell v. Sav. & Bldg. Assn., 175 Mo. 275; Lapsley v. Bank, 105 Mo.App. 104; Price v. Hallett, 138 Mo. 561; Stevens v. Fitzpatrick, 218 Mo. 721; Atterbury & Nichols v. Hendrix, 127 Mo.App. 47; Henslee v. Cannefox, 49 Mo. 295; Roden v. Helm, 192 Mo. 83; Allen v. Aylor, 111 Mo.App. 257; Brewster v. Improvement Co., 247 Mo. 223; Sharp v. Insurance Co., 164 Mo.App. 475; Murphy v. Wabash, 228 Mo. 56. (e) Appellant Elbert likewise filed no pleading to this respondent's answer and cross-petition. The allegations in such answer and cross-petition are wholly inconsistent with the allegations in appellant Elbert's answer and cross-petition. If one is to be taken as confessed, both must be. (4) Conveyances made with intent to hinder, delay and defraud creditors are null and void as to such creditors only and not as to grantees who have purchased in good faith. Secs. 2881, 2882, R. S. 1909; Bank v. Worthington, 145 Mo. 91; Gordon v. Ritenour, 87 Mo. 61; Reynolds v. Faust, 179 Mo. 21.
On April 1, 1908, Mary McMurray was the owner and in possession of the west thirty-six and one half feet of lots 26, 27, 28, 29 and 30 in block 17, Dundee Place, an addition to Kansas City, and on that day executed a deed of trust thereon to Richard W. Hocker to secure a loan of $ 2500 made by Homer McWilliams to her.
Helen V. Elbert recovered judgments against Mary McMurray before a justice of the peace of Jackson county and filed transcripts thereof in the office of the clerk of the circuit court of Jackson county on the following dates and for the...
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