Testator died seised of certain land in controversy subject to a deed of trust, and bequeathed the land to his widow for life, with remainder over. The widow, during the husband's life, had loaned him certain of her money which was used on the property, and, after her husband's death, purchased the note secured by the deed of trust, and permitted the property to be sold on foreclosure, it being conveyed to her by the purchaser after which she executed a new mortgage thereon. Held, that the purchase made by the widow was for the benefit of the remaindermen on condition that they should contribute to the amount the widow had advanced to her husband and in payment of the loan; her share being charged with the whole amount of the mortgage executed by her after the husband's death.
3. EQUITY (§ 141)—BILL—OFFER TO DO EQUITY—TENDER.
Where a bill in equity contains a general offer to do equity in conformity to the decree of the chancellor, it is not demurrable for a failure to allege a tender to defendants; it being always within the power of a court of equity to require as the price of its decree that the complainant shall submit to equitable terms.
Appeal from Circuit Court, Pike County.
Suit by Scott Grant Peak and others against Frances Peak and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.
The legal propositions in this case will be better understood if we set out the pleadings.
The petition filed herein is as follows (formal parts omitted): "Plaintiff states: That George W. Peak departed this life at said county of Peke on the ____ day of July, A. D. 1901, testate, having made a will which was duly admitted to probate by the probate court within and for the county and state aforesaid. That the estate of said deceased was duly administered in and by said probate court and final settlement thereof made. That the said George W. Peak left surviving him his widow, the said Frances Peak, and his children and issue born of a former marriage other than that with the said Frances Peak, viz., the said Scott Grant Peak, Mollie Purnell, wife of George Purnell, and Thomas William Peak, all of whom are beneficiaries named and provided for in and by the said will of said deceased. That the said Thomas William Peak is a person of unsound mind and incapable of managing his affairs, and, in consequence thereof, is confined as a patient in the insane asylum at the city of Fulton, in Callaway county, in said state. That in and by his said will the said deceased devised to his said wife and widow, for and during her natural life, the following described real estate situate, lying and being in the county of Pike and state of Missouri, to wit: The W. ½ of the N. W. ¼ and the N. W. ¼ of the S. W. ¼ of section 4, in township 54 N., range 4 W., of the Fifth P. M., containing 124 89/100 acres, more or less, to be held, used, and enjoyed by the said Frances Peak for and during her natural life, and her estate therein was limited to that period and subject to such life tenancy. He devised the said lands in remainder in fee to his said children as follows: To the said Scott Grant Peak, the south 46 acres of said lands, to said Mollie Purnell, the dwelling house and premises and 31 acres north thereof, and to said Thomas William Peak, the north 46 acres of said lands. That in the month of December, A. D. 1883, the said George W. Peak and Ellen Peak, his then wife, executed a deed of trust in the nature of a mortgage upon the above-described lands to William G. McCune as trustee to secure to John McCune the payment of a promissory note for $840; that divers payments were made on said note, so that the sum of $250 thereof remained unpaid
and due thereon at the time of the death of the said George W. Peak, which said note and deed of trust the said Frances Peak became the owner and holder of after the death of her said husband, George W. Peak, and continued thereafter to hold the same. That on or about the 27th day of November, A. D. 1905, contriving and designing to cheat and defraud the said children of her deceased husband, parties herein, out of their remainder interests in said lands, said Frances Peak caused a pretended sale of said lands to be made, under said deed of trust, and induced and procured one L. S. Sisson to become the purchaser thereof for her at the pretended sale so had, and the said Sisson immediately thereafter conveyed said lands to said Frances Peak without having paid anything of value for said lands or received anything of value therefor, and with full notice of the rights and interests of the plaintiffs and the said Thomas William Peak therein. That on the 28th day of November, A. D. 1905, the said Frances Peak executed a deed of trust in the nature of a mortgage, conveying said lands to said J. D. Layne to secure to said Lem T. Patterson the sum of $312, expressed in a promissory note in said deed described. That both the said J. D. Layne and Lem T. Patterson had notice of the rights and interests of these plaintiffs and of the said Thomas William Peak in and to the said lands at the time said $300 were loaned and said lands taken as security therefor. That the said Frances Peak received said conveyance of said lands and now holds the same subject to all of the rights and interests therein of these plaintiffs and the said Thomas William Peak that existed prior to said pretended sale under said deed of trust so made to said William G. and John McCune. Plaintiffs further state that they are ready, willing, and here offer to pay their proportion of the balance of the principal sum of said note so made to said John McCune remaining unpaid at the time of the death of said George W. Peak as soon as the same is ascertained, fixed, and determined by the court; that the said $312 so borrowed of said Patterson ought to be charged against the interest in said lands of the said Frances Peak; that said lands are of the reasonable value of $3,000. Plaintiffs therefore pray that the rights and interests of the respective parties be investigated, ascertained, and determined; that the plaintiffs Scott Grant Peak and Mollie Purnell be adjudged to be the owners of the respective tracts of land devised to them as aforesaid, subject to the life tenancy therein of the said Frances Peak, and the lien thereon for their proportion of the said debt of $250, with leave to pay off and discharge the same; that the said money so borrowed of said Patterson be charged against the interest of said Frances Peak; that said pretended sales of lands be held for naught; that a guardian be appointed for said Thomas William Peak; that his rights and interests in said lands be protected; and that plaintiffs have all such orders and decrees as may be deemed meet and proper and costs herein."
The separate answer of Frances Peak is as follows: "Now at this day comes Frances Peak, defendant, and, for her separate answer to plaintiffs' petition filed in the above-entitled cause, denies each and every allegation therein contained except such as are hereinafter specifically admitted to be true. Defendant admits the death of George W. Peak and that he died testate; that his will was admitted to probate, and that his estate was administered and finally settled as alleged in plaintiffs' petition; that said George W. Peak left surviving him this defendant as his widow, and the said Scott Grant Peak, Mollie Purnell, and Thomas W. Peak, his children, all of whom are named in said will as beneficiaries thereunder. Defendant further admits the execution of the deed of trust by the said George W. Peak and Ellen Peak his then wife, under date of December 15, 1883, conveying to William G. McCune as trustee the lands described in plaintiffs' petition to secure to John McCune the payment of a promissory note therein described for the sum of $840, with interest from date at the rate of 10 per cent. per annum, compounding annually. Defendant, further answering, says that on March 4, 1895, she loaned to the said George W. Peak the sum of $300, for which he gave to this defendant his negotiable promissory note of even date therewith, drawing 8 per cent. interest per annum, compounding annually, and secured said note by a deed of trust on the lands described in plaintiffs' petition, which said deed of trust was duly recorded in volume 104, at page 174, in the recorder's office of Pike county, Mo., on which said debt the said George W. Peak paid the sum of $24 on March 4, 1896, and that the remainder of said debt with accrued interest was not paid until the sale of the lands in question under the McCune deed of trust, when the same was paid out of the proceeds of the sale under said deed of trust given to John McCune, after satisfying the amount due on the John McCune note and costs of said sale. Defendant, further answering, says that after the death of George W. Peak she paid out of her own money on the John McCune note the following amounts, viz., August 1, 1903, $50, August 10, 1904, $50, and September 14, 1905, $220. Defendant, further answering, says that during the lifetime of the said George W. Peak she loaned to the said George W. Peak divers sums of money, amounting in the aggregate to $600, which money was used by him, the said George W. Peak, in and about the lands in question and for the improvement of same. Defendant asks, therefore, that she be subrogated to the rights of the mortgagee under the John McCune deed of...
