Nall v. Nall

• Decision Date: 31 May 1912
• Citation: 147 S.W. 1006
• Parties: NALL et al. v. NALL.
• Court: Missouri Supreme Court

147 S.W. 1006

NALL et al. v. NALL.

Supreme Court of Missouri. Division No. 1.

May 31, 1912.

1. APPEAL AND ERROR (§ 907)—PRESUMPTIONS—ABSENCE OF BILL OF EXCEPTIONS.

Where an interlocutory decree in accordance with the prayer of the petition in partition recited that evidence was heard and argument of counsel made, the court on appeal, in the absence of a bill of exceptions preserving the evidence, must presume that the evidence justified the findings and decree.

2. APPEAL AND ERROR (§ 918)—PRESUMPTIONS—ABSENCE OF BILL OF EXCEPTIONS.

Where the court on appeal must presume, in the absence of a bill of exceptions preserving the evidence, that the trial court in partition had evidence on which to base its findings and an interlocutory decree granting the prayer of the petition, averring that the parties own the land by virtue of the will of their deceased father, without pleading the will, the court on appeal could not adjudge that the trial court abused its discretion in refusing to permit defendant to amend his answer admitting the truth of the petition by averring that the parties had no interest in the land, because the will operated to convert the same into personalty.

3. CONVERSION (§ 22)—WILLS—"RECONVERSION."

Though a will may convert land into money, the subsequent acts of the beneficiaries may reconvert the subject-matter into land; "reconversion" being an imaginary process by which a prior constructive conversion is annulled and the converted property restored, in contemplation of law, to its original state— such reconversion being exercised before the property is actually converted.

4. CONVERSION (§ 22)—WILLS—RECONVERSION.

Testator devised real estate to his wife for life, and at her death to be sold and equally divided between three sons. The land was never sold; but the three sons executed deeds of trust on their respective "undivided one-third interest." A petition in partition by two of them averred that the sons owned the land by virtue of the will, and the third son answered, admitting the truth of the petition. Held that, since no actual conversion of the land into money could take place until the expiration of the life estate, and since up to an actual sale there was only a constructive conversion of the land into personalty, the acts of the sons in mortgaging the land constituted a reconversion, justifying the court, in the suit for partition, to treat the land as real estate.

Appeal from Circuit Court, Clay County; F. H. Trimble, Judge.

Action by Louis H. Nall and another against Charles P. Nall. From a judgment for plaintiffs, defendant appeals. Affirmed.

Witten & Hall, H. T. Ferriss, and Chapman & Hanger, for appellant. Sandusky & Sandusky, for respondents.

GRAVES, P. J.

Action in partition. In 1904, Wm. H. Nall departed this life in Clay county, Mo., seised and possessed of the land involved in this controversy. He left a will, the material portions of which are:

"3rd. I will and devise all my real estate to my wife during her natural life, and at her death to be sold and equally divided between my three sons, namely, William W., Charles P., and Lewis H. Nall, share and share alike.

"4th. My daughter Fannie, now intermarried with Edward Bowring, I have by advancement given to her her full share of my estate, in real and personal property."

Some dates and data become material to determine the ultimate question in the case. The widow, Ester A. Nall, was made executrix of the will, but died in September, 1905, intestate. In William H. Nall's estate, final settlement was made February 15, 1907, and final settlement in her estate was made October 30, 1907. May 23, 1908, this suit was filed, and in the petition it was alleged that the plaintiffs owned two thirds of the land (one-third each), and the appellant Charles P. Nall, the other third, all in fee. This petition did not set out the will of Wm. H. Nall, but did aver that by such will the land was left to the mother for life, with remainder in fee in the plaintiffs and Charles P. Nall. It alleged the death of the widow, and pleaded certain incumbrances placed upon the lands by the plaintiffs and Charles P. Nall. It also alleged certain rents to be due from the said Charles P. Nall, and prayed for an accounting thereof and for the partition and sale of the lands involved. To this petition the appellant here, one of the defendants below, filed answer as follows: "Now comes defendant, Charles P. Nall, and for his separate answer to the allegations in plaintiffs' petition admits the truth of the same, and asks the court to protect his rights and interest in the real estate therein described. Simrall & Simrall, Attorneys for Defendant, Charles P. Nall."

November 11, 1908, an interlocutory judgment was entered in accordance with the prayer of the petition. No exceptions were saved to anything done at the November term of court. Under this judgment, the land was advertised to be sold at the February term of the court, or on March 22, 1909. March 12, 1909, at the February term aforesaid, appellant, by different counsel, filed his motion in the circuit court, asking that he be permitted to amend his answer, so as to aver that neither the plaintiffs nor this appellant had any interest in the land in dispute. He avers in the motion that the answer theretofore filed was by reason of a mutual misunderstanding of himself and his counsel as to his right and interest in the land. Upon this motion evidence was heard, and thereafter the same was overruled and the land sold, deed made, and order of distribution made. The exceptions upon this hearing were preserved by bill, and they are the only exceptions here for review. From the evidence introduced upon this motion, it appears that the appellant and his then counsel did in fact examine the will, but, as they aver, only with the idea of determining whether the appellant here (defendant there) could have his interest in the land set out in kind. It was further shown that Charles P. Nall had mortgaged his "undivided one-third interest" in said land for $1,500 on March 25, 1907, more than a year prior to the partition suit. This deed was in force at the time the suit was filed and at the time of judgment. The plaintiffs had likewise incumbered their interest prior to the trial. These mortgages were all introduced in evidence on this motion. There was likewise introduced three other mortgages or deeds of trust made before the suit by appellant, in each of which he undertook to convey his undivided one-third interest in this land. These had been satisfied of record. There was also introduced in evidence a deed of trust for $702, executed by appellant after the interlocutory decree, in which said deed he undertook to convey his "undivided one-third interest" in this land. This sufficiently states the case.

1. There are two reasons for an affirmance of this judgment. The first goes to the condition of the record. There is no bill of exceptions as to matters occurring prior to the interlocutory decree. The petition avers that the respondents and appellant owned the land by virtue of the will of their father. The terms of the will are not pleaded. What evidence there might have been introduced on the hearing of the case does not appear. The interlocutory decree recites that evidence was heard and argument of counsel made. If it be granted that the will, afterward preserved in the bill of exceptions on the motion, was in fact in evidence at the trial of the issues, and if it be further granted that under the terms of the will the land was converted into money upon the death of the testator (a debatable question under the terms of the will), yet there...