Powers v. Grand Lodge of Ancient, Free and Accepted Masons of State of Missouri
| Decision Date | 06 January 1944 |
| Citation | 177 S.W.2d 529,237 Mo.App. 825 |
| Parties | William Powers, Maudie Smith, Lillie Dunaway, Dewey Leath, Virgie Jones and Bennie Walraven, (Plaintiffs), Respondents, v. Grand Lodge of Ancient, Free and Accepted Masons of the State of Missouri, a Corporation, the Masonic Home of Missouri, a Corporation; the Grand Lodge of Independent Order of Odd Fellows of the State of Missouri, (Defendants), Appellants |
| Court | Missouri Court of Appeals |
Rehearing Denied January 27, 1944.
Appeal from the Circuit Court of New Madrid County; Hon. Louis H Schult, Judge.
Reversed and remanded (with directions).
J M. Haw, James Haw, H. A. Hamilton and C. R. Hamilton for appellants.
(1) Where the trial court's finding and decree in an equity case are not sustained by the law and the evidence, the appellate court will make its own findings and render such judgment as equity and justice require. Uhrig v. Hill-Behan Lumber Co., 341 Mo. 851, 110 S.W.2d 412; Bauman v. Western & So. Indem. Co., 230 Mo.App. 835, 77 S.W.2d 496; De Mayo v. Cantley, 141 S.W.2d 248; French v. Franklin Life Ins. Co., 164 S.W.2d 90. (2) The legal estate in the land devised by J. Logan Busby was in the trustee named in the deed of trust executed by the testator in his lifetime. All those claiming under his will owned only an equity of redemption. The acquisition of the secured note by the owner of the equity of redemption does not merge the lesser and greater estate in such owner, because the legal estate is outstanding in the trustee and thus intervenes to prevent the merger. Bassett v. O'Brien, 149 Mo. 381, 51 S.W. 107; Italiani v. Higbee Coal Mining Co., 331 Mo. 362, 53 S.W.2d 1050; Curry v. LaFon, 133 Mo.App. 163, 113 S.W. 246; Dent v. Matthews, 202 Mo.App. 451, 213 S.W. 141; Peters v. Kirkwood Fed. Sav. & Loan Co., 136 S.W.2d 369. (3) Merger of estates is not favored in equity and is allowed only to promote parties' intention or for other special reasons, and if no intention is expressed, equity will examine circumstances and presume intention in accordance with advantage to party acquiring two estates. 21 C. J. 1034; 2 Pomeroy's Equity Jurisprudence (4 Ed.), sec. 791; Bassett v. O'Brien, supra; Hayden v. Lauffenburger, 157 Mo. 88; Dent v. Matthews, 202 Mo.App. 451, 213 S.W. 141; Peters v. Kirkwood Fed. Sav. & Loan Co., supra. (4) The mortgagee, after default by the mortgagor, has the right to the possession of the mortgaged premises for the purpose of applying the rents and profits to the discharge of the mortgage debt. Grafeman Dairy Co. v. Mercantile Club, 241 S.W. 923; Netzeband v. Knickmeyer-Fleer Realty & Inv. Co., 103 S.W.2d 520; Wakefield v. Dinger, 234 Mo.App. 407, 135 S.W.2d 17. (5) The foreclosure of a mortgage in default is a lawful act and the motive, intention or purpose of foreclosing is immaterial to the validity of the foreclosure sale. Owens v. Owens, 347 Mo. 80, 146 S.W.2d 569; State ex rel. Orr v. Buder, 308 Mo. 237, 271 S.W. 508; State ex rel. St. Louis Union Trust Co. v. Hoehn, 173 S.W.2d 393; Massey Harris Co. v. Rich, 233 Mo.App. 509, 122 S.W.2d 858.
Zal B. Harrison and Hal B. McHaney for respondents.
(1) By the expressed direction of the testator, J. Logan Busby, the Grand Lodge of Ancient, Free and Accepted Masons of the State of Missouri and the Independent Order of Odd Fellows of the State of Missouri, his residuary devisees were directed to pay to plaintiffs the charges in question and the same constitutes a charge upon the real estate involved in this suit. 69 C. J., 1182, 1183, 1206; Powers v. Grand Lodge A. F. & A. M. of Mo., 146 S.W.2d 895; Murphy v. Carlin, 113 Mo. 113; Noe v. Kern, 93 Mo. 367; Bakert v. Bakert, 86 Mo.App. 83; Brooks v. Erskine, 24 Mo.App. 296. (2) Such charges were not removed by the purported foreclosure of the deed of trust in favor of Prudential Insurance Company. [a] Upon the residuary devisees taking possession of the lands in question by whatever method they may have employed, they thereby obligated themselves under the law to pay off and discharge the outstanding mortgage debt. Which obligation was recognized by them and was fully paid. They could not thereafter seek to recover said obligation from the assets of said estate by foreclosure or otherwise. R.S. 1939, sec. 524; Gates v. Rice, 320 Mo. 580, 8 S.W.2d 614; Hannibal Tr. Co. v. Elzea, 315 Mo. 485, 286 S.W. 371; Peck v. Fillingham's Estate, 202 S.W. 465, 199 Mo.App. 277; Savings Trust Co., of St. Louis v. Beck, 72 S.W.2d 282; Powers v. Grand Lodge of A. F. and A. M. of Mo., supra. [b] Upon the death of J. Logan Busby the legal title to the lands in question became vested in the residuary devisees, Grand Lodge of Ancient, Free and Accepted Masons and Grand Lodge of Independent Order of Odd Fellows for the benefit of the Orphan's Home of those two orders, subject to the obligation placed upon such devisees to pay to plaintiffs the charges mentioned in said will aggregating $ 2000 and subject also to the life estate of Ben F. Busby. Upon the death of Ben F. Busby it became the expressed duty of the Grand Lodges to pay plaintiffs the charges in their favor. But contrary to this expressed duty the Grand Lodges sought to circumvent the terms of said will by the alleged purchase of the outstanding deed of trust, and upon the death of Ben F. Busby, the life tenant, the foreclosure of the same, taking title thereto in the name of Masonic Home, one of the two principal beneficiaries under the will, who was to hold the title for itself and the Grand Lodge of Odd Fellows, the other principal beneficiary. Since the defendants, under the terms of said will, were liable to pay off and discharge the incumbrance, if they were to receive the bequest of the testator, they could not purchase and hold the property at a foreclosure of the incumbrance they were obligated to pay. Their purchase upon foreclosure was nothing more or less than the payment and discharge of the debt, whether they held the deed of trust at the time or whether it had been foreclosed by the original holder. Bullock v. Bank, 351 Mo. 587, 173 S.W.2d 753; Souders v. Kitchens, 137 S.W.2d 501; Duffey v. McCaskey, 134 S.W.2d 62; Estey v. Commerce Trust Co., 333 Mo. 977, 64 S.W.2d 608; Lewis v. Barnes, 262 Mo. 377, 199 S.W. 212; Mathews v. O'Donnell, 289 Mo. 235, 233 S.W. 451; Tuggles v. Callison, 143 Mo. 527, 45 S.W. 291; Peak v. Peak, 228 Mo. 536, 128 S.W. 981; Meads v. Hutchinson, 111 Mo. 620, 19 S.W. 1111; Allen v. De Groodt, 105 Mo. 442, 16 S.W. 494; Powers v. Grand Lodge A. F. and A. M. of Mo., supra. [c] If there had been no duty on the part of the defendants to pay off and discharge the incumbrance under the terms of the will or as a matter of law, since plaintiffs had an interest in the property devised to the defendants, both of which interests were subject to the same incumbrance, the plaintiff would still be entitled to recover herein because it is conclusively shown that prior to the foreclosure of the deed of trust the defendants through their agent, O. W. Joslyn, were in possession of the lands in question, collecting all rents and profits from the same. It matters little whether they were in possession as the holders of an unsatisfied mortgage deed of trust or as the beneficiaries under the last will and testament of J. Logan Busby. They occupied a relationship of trust to the plaintiffs under such circumstances and by no act of theirs could the interest of plaintiffs in the lands in question be legally divested. Wichter v. Hanley, 299 Mo. 696, 253 S.W. 1002; Gerhardt v. Gerhardt, 213 S.W. 31; Thornton v. Irwin, 43 Mo. 163; Rea et al. v. Copelin, 47 Mo. 77; Street et al. v. Goss et al., 62 Mo. 226; Powers v. Grand Lodge of A. F. and A. M. of Mo., supra. (3) The plaintiffs are entitled to have a lien declared against the lands in question as against the record owner, Masonic Home of Missouri. The Masonic Home of Missouri is the Orphan's Home of the Ancient, Free and Accepted Masons of Missouri and as such was one of the principal beneficiaries under the last will and testament of J. Logan Busby. The testimony shows that it now holds title for itself and as trustee for the other principal beneficiary, Independent Order of Odd Fellows. It is conceded the Masonic Home of Missouri had full knowledge, both constructive and actual, of the rights of plaintiffs in and to the property in question. And it is further conclusively shown that the foreclosure of the deed of trust was done by agreement between the Masonic Home of Missouri, the Odd Fellows and the Masonic Lodge for the purpose of defeating the rights of plaintiffs in the lands in question. During all of the time plaintiffs have been deprived of their legacy under the will, the defendants collected all the rents and profits from the lands and the evidence discloses that such rents and profits have been more than sufficient to discharge the mortgage lien against the land. Furthermore, the testimony shows the lands are worth approximately $ 10,000 in excess of the amount owing plaintiffs under the last will and testament of J. Logan Busby. Witcher v. Hanley, supra; Picot v. Page, 26 Mo. 415; Powers v. Grand Lodge A. F. and A. M. of Mo., supra.
This is the second time this case has been appealed to this court. The first appeal is reported in 146 S.W.2d 895. The petition in this case is the same as in the former appeal. The petition, with the will attached, was set out in full in the former opinion and we do not set them out in full here. We held then, that the petition stated a good cause and was not barred by the ten-year Statute of Limitation.
When the cause went back to the circuit court, answers of the defendants were filed and a trial upon the then...
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