Morrison v. Roehl

• Decision Date: 25 November 1908
• Parties: MORRISON v. ROEHL et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Missouri Supreme Court

114 S.W. 981

215 Mo. 545

MORRISON v. ROEHL et al.^†

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. MORTGAGES (§ 319)—PAYMENT OR PURCHASE —EVIDENCE—SUFFICIENCY.

Evidence held to sustain a finding that mortgage notes were not paid, but were purchased by the mortgagor's widow.

2. MORTGAGES (§ 249) — ASSIGNMENT OF NOTES—EFFECT.

An assignment of mortgage notes carried the mortgage with it, depriving both the mortgagee and his executor of control over the mortgage, thus making his executor's release void.

3. MORTGAGES (§ 424)—FORECLOSURE—LIMITATIONS.

Prior to Act Feb. 18, 1891 (Laws 1891, p. 184; Rev. St. 1899, § 4276 [Ann. St. 1906, p. 2353]), prohibiting mortgage foreclosures after bar of the notes, and section 4277, prescribing when notes executed before 1891 should be barred, a deed of trust was not barred within 20 years.

4. MORTGAGES (§ 424)—FORECLOSURE—LIMITATIONS.

Act Feb. 18, 1891, effective June 22, 1891 (Laws 1891, p. 184; Rev. St. 1899, § 4276 [Ann. St. 1906, p. 2353]), prohibiting a mortgage foreclosure after the note is barred, and section 4277, prohibiting foreclosure of mortgages theretofore executed after two years, did not invalidate a sale made August 12, 1893, under a mortgage given in 1880, where none of the notes were barred when the act was passed, though one of them became barred before the act took effect, and all were barred when the sale was made.

5. TENANCY IN COMMON (§ 19)—PURCHASE OF OUTSTANDING TITLE—EFFECT.

Generally a purchase by a co-tenant of an outstanding title is presumed to be for the benefit of all the parties in interest, and is not void, passing title subject to the rights of other co-tenants.

6. LIFE ESTATES (§ 10)—OUTSTANDING TITLE —PURCHASE BY LIFE TENANT—EFFECT.

Generally a purchase by a life tenant of an outstanding title is presumed to be for the benefit of all the parties in interest, and is not void, passing title subject to the rights of the remaindermen.

7. LIFE ESTATES (§ 10)—OUTSTANDING TITLE —PURCHASE BY LIFE TENANT—CONTRIBUTION.

One claiming under a remainderman cannot claim benefits from a conveyance to the life tenant of an outstanding title without offering to contribute his proportionate part of the price paid for the conveyance.

8. APPEAL AND ERROR (§ 171) — REVIEW — THEORY ON TRIAL.

A case must proceed in the Supreme Court on the same theory on which it was tried below.

Appeal from Cape Girardeau Court of Common Pleas; Benj. F. Davis, Judge.

Bill by James M. Morrison, trustee for Harry Morrison and others, against Harry T. Roehl and others. From a judgment dismissing the bill, plaintiff appeals. Affirmed.

The facts shown and matters pleaded can be well stated together in this case.

In September, 1883, Julius Roehl, who was then the owner of the real estate in dispute. died. This property was his homestead, and was acquired in 1874. Upon this homestead he, being joined therein by his wife, Maria, had placed a deed of trust of date April 1, 1880, to secure the payment of three several notes of the sum of $226.10 each, bearing interest at 10 per cent. compound interest, and payable in one, two, and three years. No administration was had upon his estate, but the probate court of Cape Girardeau county, said county being the situs of this property and the birthplace of this suit, made an order refusing to grant letters of administration. The notes secured by this deed of trust were payable to John P. Hitt. A disputed matter in the case is as to whether or not these notes were paid, or whether they were purchased by the widow. The defendant Powers claims that the widow purchased these notes, and they were assigned to her by John P. Hitt in his lifetime. This purchase as alleged was in November, 1883. The contention on the other side is that they were paid, and that thereafter, in 1891, one Albert, as executor of John P. Hitt, undertook and did release said deed of trust by a quitclaim deed to the heirs of Julius Roehl. The notes, with an assignment from John P. Hitt without recourse to Maria Roehl of date November 19, 1883, were in evidence. The Albert deed was of date March 14, 1891, and purports to release the deed of trust. Later, in 1893, Robert L. Wilson, the trustee in the deed of trust, at the request of Maria Roehl or her attorney, advertised and sold the premises for $2,000, the purchaser being Mrs. Roehl. The commission of the trustee and the expenses of sale were paid, and the notes credited with the remainder. Mrs. Roehl died in 1896; one of her seven children, Chester, having previously died. Prior to her death she executed a will, which among other things, provided: "Second, I give, devise and bequeath to my youngest child, Mary Eloise Roehl, my residence property being Lots, No. One (1) and Twelve (12) in Range "H" in the City of Cape Girardeau, County of Cape Girardeau and State of Missouri, together with all the furniture of every kind in said residence, to have and to hold the same until her marriage; and after her marriage, or if she should never marry, then after her natural death, I give, devise and bequeath the same in fee to said Thomas Powers, as executor and trustee, in trust, for the use and benefit of all of my six children, to-wit: Harry T., Charles F., Raymond E., Arthur B., and Mary Eloise Roehl and Geraldine Roehl Isaacs, and I authorize, empower and direct said executor and trustee to sell the same at either private or public sale, and make conveyances thereof as fully as I could do, if living, and to divide the net proceeds thereof equally, share and share alike, among my said six children." The plaintiff, as trustee for other parties named in the deed, is a purchaser at an execution sale of whatever interest, if any, was held by Raymond E. Roehl on May 7, 1901, the date of sale, and defendant Davis claims through a similar sale of the alleged interest of Charles F. Roehl. Defendant Anderson is the tenant in possession under Powers as landlord. The other defendants are the children of Julius Roehl, except defendant Isaacs, who is merely the husband of one of the daughters. Plaintiff, by the petition, asks in the first count that the court ascertain and define the title of the parties to the property involved and in the second count for a partition of the premises. The petition, among other things, proceeds on the theory that the sale under the deed of trust was void because of the debt having been previously paid. The answer in detail pleads the facts as contended for by Powers, to the effect that there was a valid sale under the deed of trust. This issue is sharply drawn in the evidence. The court entered judgment thus: "The court, having been duly advised of and concerning the matters and things in issue herein, finds that Maria J. Roehl, at the time of her death, was the owner in fee of the real estate described in plaintiff's petition; that she had the right to and did devise the same to Thomas Powers in trust to Eloise Roehl, her daughter, and that the said Thomas Powers is now rightfully in possession of said premises. It is therefore considered, adjudged, and decreed by the court that plaintiff's bill be dismissed, and that he take nothing by his writ, and that the defendants recover of the plaintiff their costs in this behalf expended and have thereof execution." From this judgment plaintiff appeals, but defendant Davis, although claiming an interest in the land in his answer, abided the judgment of the court. Such are the facts of this case.

M. A. Dempsey, for appellant. R. G. Ranney, for respondents.

GRAVES, J. (after stating the facts as above).

1. There is a sharp conflict of the testimony on the question as to whether or not the notes were paid off or purchased. Robert L. Wilson, who was trustee in the deed of trust and afterward attorney for Albert, the executor of John P. Hitt, was of the opinion that the notes had been paid, but, when pressed on cross-examination, seemed to have no personal knowledge of the payment. There are also some bits of testimony tending to show that the foreclosure of the deed of trust was had because of friction between Mrs. Roehl and some of her children. Mrs. Roehl seems to have been a very practical and successful business woman, and left considerable estate. Judge Wilson examined the signature of John P. Hitt to the several assignments on the notes, and pronounced it the genuine signature of John P. Hitt. The assignments are all identical, and one will suffice. The language used is: "For value received, I herewith assign the within note to Mrs. Maria Roehl, without recourse, this 19th day of November, 1883. John P. Hitt." The purported quitclaim deed with release clause from Albert to the heirs of Julius Roehl recites that the debt was fully paid to Hitt in his lifetime. There is no showing that Mrs. Roehl had anything to do with this deed, nor is there any showing to whom or when it was delivered. This deed was made in 1891, some two years prior to the sale under the deed of trust. So that, opposed to the vague testimony of Judge Wilson as to payment and the purported deed of release, we have the assignment of these notes by Hitt in his lifetime to Mrs....