Schowe v. Kallmeyer

• Decision Date: 13 September 1929
• Docket Number: No. 27301.,27301.
• Parties: GEORGE SCHOWE v. AUGUST KALLMEYER, Appellant.
• Court: Missouri Supreme Court

20 S.W.2d 26

GEORGE SCHOWE v. AUGUST KALLMEYER, Appellant.

No. 27301.

Supreme Court of Missouri. Division One.

September 13, 1929.

Appeal from Franklin Circuit Court. — Hon. R.A. Breuer, Judge.

AFFIRMED AND REMANDED (with directions).

John W. Booth and Fred H. Kasmann for appellant.

(1) Rohlfing died intestate in 1880. At his death he owned an estate in fee in the land in plaintiff's petition described and was seized and possessed in fee of the same, and left surviving him his widow and his and her minor children. His homestead therein at his death passed to and vested in his widow for her life and his minor heirs, the said infants, during their minorities. The homestead law of 1875 was then in force. Ailey v. Burnett, 134 Mo. 313; Keene v. Wyatt, 160 Mo. 1; West v. McMullen, 112 Mo. 405. (2) Said homestead being in existence, said widow intermarried with Henry Schowe in the year 1881 and said Schowe took up his residence on said homestead, and by sufferance of said widow lived on said homestead with the widow and minor children of said Rohlfing, until 1888, when he died, intestate. All this occurred during the existence of said homestead of said Rohlfing. West v. McMullen, 112 Mo. 405; Spratt v. Early, 169 Mo. 357; Hufschmidt v. Gross, 112 Mo. 649; Sutton v. Casseleggi, 77 Mo. 405; Bank of Versailles v. Guthrey, 127 Mo. 189; Broyles v. Cox, 153 Mo. 242; In re Powell's Estate, 157 Mo. 151; 21 Cyc. 465, 563 (b); Armor v. Lewis, 252 Mo. 568. (3) If the administrator's sale of the land to Henry Schowe was valid, the effect was to divert the fee in the land from the two sons of Henry Louis Rohlfing to said Schowe and upon his death to his sons, as without such sale the said lands, on the death of the widow, would have gone, subject to the payment of the debts of said Rohlfing, to the sons of said Rohlfing, by the Statute of 1875; and the homestead of Rohlfing as an exemption and right of occupancy remained in possession of his widow for her life, and in the minor Rohlfing children, during their respective minorities. Poland v. Vester, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 1; Hufschmidt v. Gross. 112 Mo. 649. (4) Such homestead was not liable for taxes and not subject to taxation; and not liable for any part of the purchase money for the fee in said land due by said Henry Schowe, and so not liable for any allowance made by the probate court against the estate of said Henry Schowe. No levy could he made and no execution had against the homestead, same being the homestead of the widow and minor children of said Rohlfing. But the fee or the land itself was liable for such taxes and for said allowance: said fee, being severed from the homestead, was the property of said Henry Schowe; and said homestead was the exemption of the widow and minor children of Rohlfing and not chargeable with or liable for any taxes; or for any charge or allowance due for or on account of said fee. Graves v. Cochran, 68 Mo. 74; Moore v. White, 61 Mo. 441; Ailey v. Burnett, 134 Mo. 313; Mahoney v. Nevins, 190 Mo. 360; 21 Cyc. 580, 581. The exemption of the homestead holds against the state as well as against persons. State v. Pitts, 51 Mo. 133; 21 Cyc. 519, 520. (5) The remaindermen are liable for the taxes to protect their remainder. Hall v. French, 165 Mo. 430; Smith v. Mount. 149 Mo. App. 668. (6) The homestead as such, of the widow and minor children of Rohlfing, could not be charged with or be liable for the dwelling house and other buildings and improvements, reasonably necessary for the use of said widow and her family put and built upon said homestead and upon said land by appellant, the husband of said widow. Authorities above. (7) The rebuilding of the dwelling house and other buildings and improvements on said homestead and said land by appellant at his own expense was necessary for the preservation of a home for said family on said homestead; and the law favors and intends that said homestead should remain a home for said widow and minor children; and if at the same time said improvements are a benefit to the remaindermen, their value which they bore to the land at the time the homestead or particular estate ended became a charge against the land. Ex parte Palmer, 2 Hill Eq. (S. Car.) 215; 16 Cyc. 631. (8) When the appellant put said dwelling house and other permanent improvements on said premises he did not know of the existence of respondent, and he put said improvements on said premises in good faith, to preserve the integrity of the homestead which the law favors and intends; and it was a benefit to the remaindermen. And when afterwards in 1919, the appellant contracted with Albert and Emil Schowe and they with him for the purchase and sale of the fee-simple title to said land and appellant believed he had bought the entire title and all differences on account of said improvements became settled in good faith; and during all of which time respondent was not under any disability, but used the name of "George Wittnaben," and remained silent and did not inform appellant of his existence; he cannot come after the ending of said homestead and demand his one-third part of said lands and improvements without contribution on his part of the one-third part of the value of the buildings and improvements on said land placed thereon by appellant. The trial court erred in striking out appellant's said part of said answer and erred in adjudging and decreeing partition of said lands without adjudging and decreeing contribution from respondent to appellant of the one-third part of the value of the improvements at the time of the suit. Bispham's Principles of Equity (8 Ed.) 39; Ex parte Palmer, 2 Hill Eq. (S. Car.) 215; Frederick v. Frederick's Admr., 13 L.R.A. (N.S.) 514; 16 Cyc. 631; 21 Cyc. 517, 518 (4 a); Mo. Cent. B. & L. Assn. v. Eveler, 237 Mo. 877; 31 C.J. 31, 314; Richmond v. Ashcraft, 137 Mo. App. 191; Hodgson v. Oil & Development Co., 274 U.S. 15, 54 A.L.R. 869.

Jesse H. Schaper for respondent.

(1) The trial court did not err in sustaining the motion of plaintiff to strike out defendant's answer purporting to set up affirmative defenses and seeking affirmative relief. The parts of the answer so stricken out did not state facts sufficient to constitute any defense or any affirmative relief in this action. (a) Such answer is predicated on the claim that defendant as the husband of a life tenant may recover from plaintiff as the remainderman for improvements alleged to have been made by him on the estate. The law is that neither a life tenant nor the husband of a life tenant has any right to recover from the remainderman for improvements made during the continuance of the life estate. Building & Loan Assn. v. Eveler, 237 Mo. 679; 21 C.J. 953; Frederick v. Frederick's Admr.; 31 Ky. Law Rep. 584, 13 L.R.A. (N.S.) 514, and note; Creutz v. Heill, 89 Ky. 429; Varney v. Stevens, 22 Me. 331. The tenant of a life estate, making permanent and valuable improvements, can have no claim upon the remainderman for rembursement. The improvements were made upon his own estate for its better enjoyment by him, and presumably with full knowledge of the right in the remainderman to the entire estate, with all its improvements, upon the termination of the life estate. The life tenant, in making improvements, does not expend his money for another's use and advantage, but for his own. Deanes v. Whitfield, 107 Miss. 273; Re Trusts, 4 Ont. 518. (b) That it is the duty of the owner of the life estate to pay the ordinary annual taxes assessed against the property, and upon his failure so to pay, suit is properly brought against him. Bradley v. Goff, 243 Mo. 95. (c) The claim for the payment of three hundred and fifty dollars on note given by Henry Schowe to F.W. Bade, administrator of Henry Louis Rohlfing, on November 14, 1881, was barred by the two-years' statute of limitations relating to the presentation and allowance of demands against the estate of deceased persons in force at the time of the death of said Henry Schowe, deceased. Secs. 183, 184, R.S. 1889. (d) It is immaterial in disposing of defendant's contention on the question of homestead, whether Augusta Kallmeyer, the deceased wife of defendant, owned a homestead in the lands as the widow of Henry Louis Rohlfing deceased, her first husband, or whether she owned a homestead in the lands as the widow of Henry Schowe deceased, her second husband, because it is an accepted fact in this case that she did occupy and enjoy all of the same land as her homestead from the death of her said second husband in 1888 until her own death in 1923. The estate so owned and occupied by her was a life estate and continued until her death. The rights of defendant, in either event, remained the same in the end. (2) The trial court was justified under the pleadings and the evidence in rendering the decree in partition and the order of sale of the lands in suit under the first count of the petition.

ELLISON, C.

The defendant appeals from an interlocutory decree in partition. The assignments of error go to the point that the trial court erred in striking out a part of appellant's answer and in refusing to charge the plaintiff-respondent with his share of taxes and improvements on the land involved, and one other item, the outlays therefor having been made by appellant over a series of years while in ignorance of respondent's outstanding interest. The respondent's defense, in brief, was that in expending moneys for the above purposes the appellant acted as a mere volunteer, or while holding possession in right of his wife who was life tenant by virtue of her homestead interest; and that respondent, being only the owner of an undivided share in the remainder, is not liable therefor.

The real estate which is the subject of the action is an eighty-acre farm in Franklin County. The respondent's petition alleges that his father, Henry Schowe, died intestate in February, 1888, owning and occupying it as a homestead. H...