Sheppard v. Wagner

• Citation: 144 S.W. 394,240 Mo. 409
• Court: Missouri Supreme Court
• Decision Date: 29 November 1911
• Parties: SHEPPARD et al. v. WAGNER et al.<SMALL><SUP>†</SUP></SMALL>

144 S.W. 394

240 Mo. 409

SHEPPARD et al. v. WAGNER et al.^†

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

Rehearing Denied February 29, 1912.

1. APPEAL AND ERROR (§ 511)—ABSTRACT OF RECORD—BILL OF EXCEPTIONS.

Under the heading of "Abstract of Record" of the printed abstract on appeal appeared a statement that on June 15, 1908, plaintiffs' motion for a new trial was considered and overruled, to which ruling plaintiffs excepted, and thereupon presented to the court their bill of exceptions, which was allowed by the judge and sealed and by the court ordered to be, and was then, filed and made a part of the record in the case, and, on the next page following, the bill of exceptions was printed under the appropriate head, and to it was affixed the signature of the trial judge. Held, that it sufficiently appeared that the parties had separated matters of record proper from matters of exceptions, and that from the record proper it appeared that the bill of exceptions was filed in open court and by the court made a part of the record in the case, which was sufficient.

2. MORTGAGES (§ 32)—ABSOLUTE DEED AS MORTGAGE.

Where a deed absolute on its face was intended when originally made to operate as a mortgage, it could not thereafter become an absolute conveyance.

3. MORTGAGES (§ 33)—ABSOLUTE DEED AS MORTGAGE—CONTEMPORANEOUS CONTRACT— CONSTRUCTION.

Contemporaneously with the execution of an absolute deed, a contract was executed between the parties, which recited that it was made to evidence certain things "which were not and could not be expressed in the deed." It provided for the creation of a debt to be due from the grantor to the grantees, and provided that if the grantor sold the property he must sell it for sufficient over and above incumbrances to repay the grantees for what they had paid out on the property by way of repairs and otherwise, except interest and taxes; the interest and taxes under the contract being paid by the grantees, who were to be reimbursed from the rents and profits. The contract also created the relation of landlord and tenant between the grantor and the grantees, and further provided that, if the grantees should expend any sum for repairs or for any other purpose in connection therewith than the taxes and interest, they should be reimbursed out of the proceeds of the sale of the property, and that any amount so paid should be a charge and lien on the property in favor of the grantees, and that the grantor might redeem within three years. Held, that the deed was a mortgage.

4. MORTGAGES (§ 33)—ABSOLUTE DEED AS MORTGAGE—CONTEMPORANEOUS CONTRACT— CONSTRUCTION.

Where a contract executed contemporaneously with an absolute deed apart from two particular clauses was sufficient to show that the deed was in fact a mortgage, such construction was not changed by other clauses, which provided that, if the grantor should die during the three years in which he was authorized to redeem and before the property should be sold, all his rights under the contract should cease at his death and vest absolutely in the grantees; it being understood that the deed was delivered to vest title in fee in the grantees with the right of redemption in the grantor as provided within the three-year period.

5. MORTGAGES (§ 599)—ABSOLUTE DEED AS MORTGAGE—PROVISION FOR REDEMPTION.

Where an absolute deed by virtue of a contemporaneous contract was in fact a mortgage, a provision in such contract limiting the grantor's right to redeem to three years was a nullity.

Appeal from Circuit Court, Jackson County; Henry L. McCune, Judge.

Suit by Samuel C. Sheppard and another against Joseph C. Wagner and another, and R. S. Crohn, as administrator of the estate of William L. Sheppard, deceased. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Botsford, Deatherage & Creason, for appellants. Theoph L. Carns and Jos. S. Rust, for respondents.

GRAVES, P. J.

Samuel C. Sheppard and Martha A. Montgomery were the surviving brother and sister and sole heirs at law of one William L. Sheppard, deceased. In 1906, about one year after the death of William L. Sheppard, the said Samuel C. Sheppard and Martha A. Montgomery brought a suit in equity in the circuit court of Jackson county to have a certain deed conveying property in Kansas City, Mo., made by William L. Sheppard to Joseph C. Wagner and Ella A. Wagner, declared to be a mortgage, and for an accounting between the parties. The petition avers that the deed, although absolute upon its face, was, by reason of a contemporaneous contract entered into by and between the parties, in law and in fact a mortgage. Both instruments are set out in the petition, but we may well omit the deed from this statement.

The contract reads: "This contract, made and entered into this 31st day of August, 1904, by and between Joseph C. Wagner and Ella A. Wagner, husband and wife, of the first part, and William L. Sheppard of the second part, all of Kansas City, Jackson county, Missouri, bears witness: That whereas the said second party has this day made, executed and delivered to first parties a warranty deed conveying to them the following described real estate in Kansas City, Jackson county, Missouri: All of the west 50 feet of lots numbered one (1) and two (2) in block one (1) in J. H. McGee's addition to the city of Kansas, now Kansas City. Also a strip of ground immediately east of and adjoining the above described property four (4) feet wide and ninety-six (96) feet long. And whereas, there are certain terms and conditions agreed to between the parties regarding this conveyance which are not and cannot be expressed in said deed. And whereas said property is incumbered by a deed of trust to secure a loan of $2,600.00 given to one P. H. Madden, trustee for Charles N. Brooks, and recorded in the office of the recorder of deeds in Kansas City, Missouri, at page 561 in Book B-570. And whereas there is interest due and unpaid on said loan of $182.00, also taxes amounting to about $52.00. And whereas second party is unable to pay said interest and taxes: It is therefore agreed as follows: That in consideration of the conveyance aforesaid, first party agrees to pay said interest and taxes, and for so doing, they shall have the use of said property and the rent coming from any part thereof. It is further agreed that said second party shall have the right to contract for the sale of said property at any time within three years from this date, and that if he should secure a purchaser for same within said time, first parties will convey same to said purchaser, but that second parties shall not contract for a sale of said property for less than sufficient to pay the deed of trust aforesaid and all incumbrances against said property and to reimburse said first parties for any and all amounts they may have paid on said property or in connection therewith by way of repairs or for any other purpose except the interest and taxes aforesaid; and regarding the interest and taxes aforesaid it is agreed that first parties shall have the use, rents and income of said property for one year for each and every time they shall pay said interest and taxes, and if said property should be sold during the year for which first parties have a right to occupy same and collect rents as aforesaid, first parties shall be reimbursed out of the proceeds of the sale of the same pro rata; in other words first parties shall be reimbursed for whatever portion of said year remains unexpired at time of sale figuring on a basis of $234.00 per year, or whatever amount said interest, state and county and city taxes may amount to. It is further agreed that if said parties shall expend any sum for repairs on said property or for any other purpose in connection therewith, than the taxes and interest aforesaid, the same shall be repaid to them out of the proceeds of the sale of said property as aforesaid, and that any amount so paid shall be a charge and lien against said property in favor of first parties. It is agreed that the taxes hereinbefore referred to do not include any special taxes that now are or may be assessed against said property; and if said property is not sold within three years aforesaid, second parties right and authority to sell same shall then cease and he shall have no further interest in the same, but that the title shall be absolute in first parties and discharged of any and all claim of second party. It is further agreed that if second party should die during the three years aforesaid and before said property shall be sold in accordance with this contract, all his rights and interest in and to said property and under this contract shall cease at his death and absolutely vest in first parties. It is agreed and understood that the deed of conveyance aforesaid is made and delivered to first parties for the purpose of vesting title in fee simple in first parties with a right of redemption in second party in the manner herein provided within the three years aforesaid. In witness whereof said parties have hereunto set their hands to duplicate copies hereof."

The petition then further avers: (1) That the deed and contract were a part and parcel of one transaction, and therefore constituted a mortgage, and still constitute a mortgage; (2) that defendants have been and now are in the possession of the premises claiming to be the owners thereof and denying the right of redemption in plaintiffs; (3) that plaintiffs are not advised as to what sums the Wagners have paid out under the contract aforesaid, but pray that an accounting be had thereof, and that they be permitted to redeem upon the payment of the amount found to be due the Wagners. The petition then further avers certain things should be taken into consideration in said accounting, thus: (1) That certain improvements on the premises had been destroyed by fire and the Wagners received the insurance paid therefor; (2) that the Wagners...