Souders v. Kitchens

• Decision Date: 08 February 1939
• Docket Number: 35603
• Parties: Ollie C. Souders, Defendant in Error, v. Clara Kitchens and Mary Jost, Plaintiffs in Error
• Court: Missouri Supreme Court

124 S.W.2d 1137

344 Mo. 18

Ollie C. Souders, Defendant in Error, v. Clara Kitchens and Mary Jost, Plaintiffs in Error

No. 35603

Supreme Court of Missouri

February 8, 1939

Writ of Error to Crawford Circuit Court; Hon. William E Barton, Judge.

Reversed and remanded.

Edw D. Summers for plaintiffs in error.

(1) A general demurrer opens up the record so that the sufficiency of the petition as well as the answer is tested. Wimer v Shelton, 62 Mo. 559; 49 C. J., sec. 548. (2) On general demurrer, every reasonable intendment will be indulged in favor of the pleading. Sec. 801, R. S. 1929; Corley v. Montgomery, 46 S.W.2d 283; Reed v. Catlett, 68 S.W.2d 734. (3) A pleading must be taken together as a whole, and, if one averment be superseded or destroyed in legal effect it is as if the first were not in the pleading at all. 49 C. J. 391; Raming v. Met. St. Ry. Co., 157 Mo. 508; O'Brien v. St. Louis Transit Co., 212 Mo. 69. (4) The rule that a condition of things once shown to exist will be presumed to continue until the contrary appears applies to pleadings. Thomasson v. Mercantile Town Mut. Ins. Co., 114 Mo.App. 109. (5) Where wife died prior to 1895 husband had no homestead, dower or any right, legal or equitable in wife's real estate unless he had curtesy. Richter v. Bohnsack, 144 Mo. 519. (6) Curtesy is the life estate of a husband in all the land of which the wife was seized of a freehold estate of inheritance at any time during the marriage, provided children were born capable of inheriting. Tiedeman, Real Property, p. 75; Gill, Titles, sec. 913. (7) A vested estate by the curtesy prior to 1921 is not defeated by statute passed at that time. Sec. 319, R. S. 1929. (8) At the common law and prior to the passage of the Married Women's Acts, 1889, the contracts of a married woman were not binding upon her in Missouri, and the joint contract of husband and wife was binding upon the husband alone. 30 C. J., p. 584. (9) The purchase of land by an intermediary and a conveyance back to the life tenant is held to have the same effect as if the life tenant bought it directly. Peak v. Peak, 228 Mo. 536.

G. C. Beckman for defendant in error.

(1) The purchase of land, at a mortgage foreclosure sale, by a life tenant will be deemed to have been made for the benefit of the remaindermen if they contribute their proportion of the purchase money within a reasonable time thereafter, but such right on the part of the remaindermen will be denied after a lapse of years. Cockrill v. Hutchinson, 135 Mo. 67; Allen v. De Groodt, 105 Mo. 442; Meads v. Hutchinson, 111 Mo. 620; 1 Washburn, Real Property (5 Ed.), p. 129; Willoughby v. Brandes, 317 Mo. 544. (2) The cause of action on behalf of remaindermen where life tenant buys land at foreclosure sale accrues at date of foreclosure sale. Cockrill v. Hutchinson, 135 Mo. 67; Willoughby v. Brandes, 317 Mo. 544. (3) The purchase of land at a mortgage foreclosure sale by life tenant terminates the relationship of life tenant and remaindermen. Hence, the children thereafter are not remaindermen. Cockrill v. Hutchinson, 135 Mo. 67; Willoughby v. Brandes, 317 Mo. 544. (4) On account of the long period of delay the defense of laches ought to be upheld. Cockrill v. Hutchinson, 135 Mo. 67; Willoughby v. Brandes, 317 Mo. 544; Rutter v. Carothers, 223 Mo. 640; Betzler and Clark v. James, 227 Mo. 392; Bobb v. Wolff, 148 Mo. 348; Price v. Boyle, 229 S.W. 206; Stevenson v. Saline County, 65 Mo. 429; Bliss v. Prichard, 67 Mo. 181.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is an action to determine title to 80 acres of land in Crawford County. Plaintiffs in error were defendants below, and defendant in error was plaintiff. We shall refer to the parties as styled below.

The trial court sustained a demurrer to defendants' answer, and rendered judgment in favor of Ollie C. Souders, plaintiff below. The judgment recites that plaintiff was the fee owner of the land, and that defendants had no interest therein. The cause was brought to this court by writ of error.

Plaintiff (Souders) alleged that he was the fee simple owner; that he was informed and believed that defendants claimed some interest in the land; that if defendants or either of them had any interest in the land, such arose from the fact "that Louisa E. Souders, the mother of the two defendants (Clara Kitchens and Mary Jost) became the owner of the land" under the will of Sarah E. Tyree, which will was probated in Crawford County on August 26, 1886. Plaintiff further alleged that on November 15, 1886, Louisa E. Souders and her husband, Jacob L. Souders, "made, executed, and delivered to Ed Simpson, trustee for Martha Gibson, a certain deed of trust (on the land) in the sum of $ 350;" that on February 26, 1892, Louisa E. Souders died intestate, "leaving as her only heirs the said Jacob L. Souders, her husband, and Clara Kitchens and Mary Jost, daughters, at that time minors;" that on March 31, 1893, more than 9 months after the death of Louisa E. Souders, the deed of trust "was properly foreclosed;" that at the sale Harry Clymer was the purchaser "for the sum of $ 470;" that on the same day, March 31, 1893, Harry Clymer conveyed (consideration not shown) the land to Jacob L. Souders.

Plaintiff alleged that his title derives from the "title acquired by the said Jacob L. Souders" under the deed from Clymer, and that defendants have no interest in the land "because of the fact that the said trustee's sale to Harry Clymer and the subsequent warranty deed from Harry Clymer to Jacob L. Souders were made in good faith and for a valuable and sufficient consideration; and for the further reason that any claim that the defendants or either of them might have is now barred by the Statutes of Limitations;" that he and those under whom he claims have been in adverse possession "for the past forty-two years and have paid all legal taxes thereon for and during all that time."

It is alleged in the answer that Louisa E. Souders owned the land in fee; that she died intestate February 26, 1892, leaving as her only heirs defendants and her husband Jacob L. Souders; that prior to her death, Louisa E. Souders executed the deed of trust to Simpson, trustee, "to secure the payment of a certain promissory note made and executed by Jacob L. Souders and said Louisa E. Souders;" that the deed of trust was foreclosed after the death of Louisa E. Souders, and that Harry Clymer was the purchaser at the sale; "that at the same time the said Harry Clymer conveyed said property by warranty deed back unto the said Jacob L. Souders and that said sale was wholly fraudulent and void and was executed for the purpose of divesting these defendants of their interest in and to said real estate;" that defendants (Clara and Mary) were at the time respectively 6 and 7 years of age.

Defendants further alleged that plaintiff has not held the land adversely to them for the reason that they "had no knowledge" of any interest in the land until service of process upon them; "that they were ignorant of the fact that the said Louisa E. Souders, deceased, was seized of any real estate at the time of her death."

The demurrer to the answer was general, alleging that the answer "does not allege any facts which constitute any defense to this cause of action."

"An estate by the curtesy is the life estate of the husband in all the lands and tenements of the wife, of which she was seized of a freehold estate of inheritance at any time during coverture; the curtesy becoming initiate upon the birth of issue, born alive and capable of inheriting the estate, and consummate, or taking effect in possession, upon the death of the wife." [Teideman on Real Property (4 Ed.), sec. 75.] Prior to 1921 (Laws 1921, p. 119; Sec. 319, R. S. 1929) the estate by the curtesy existed in this State. Clara Kitchens and Mary Jost, were Clara and Mary Souders and were the children of Louisa E. and Jacob L. Souders. Such being so, then upon the death of Louisa E. Souders on February 26, 1892, her husband, Jacob L. Souders, became a tenant (for life) by the curtesy of the land in question and the remainder in fee was in Clara and Mary.

It does not appear on what theory the trial court proceeded in sustaining the demurrer to the answer of defendants, and rendering judgment for plaintiff, but plaintiff contends that defendants were, in any event, barred by limitations. We proceed on the theory that Jacob L. Souders was, in legal effect, the purchaser at the foreclosure sale (March 31, 1893), and not Clymer. [Peak et al. v. Peak et al., 228 Mo. 536, 128 S.W. 981.] At the time of this sale Jacob L. Souders was the life tenant of the land, hence his purchase at the sale, had the foreclosure not been due to his failure to pay his own debt, would "be deemed to have been made for the benefit of himself and the remaindermen (defendants) if the latter had seen fit to pay their share of the purchase money within a reasonable length of time thereafter." [Cockrill v. Hutchinson, 135 Mo. 67, l. c. 73, 74, 36 S.W. 375, and cases there cited.] But the rule requiring the remaindermen "to pay their share of the purchase money within a reasonable time," should have no application when the foreclosure is due to the failure of the life tenant to pay his own obligation, because in such case there is no duty cast upon the remaindermen to make any contribution to proportionately reimburse the life tenant. It will be noted that the deed of trust secured an obligation of $ 350, and that the foreclosure sale price was $ 470. In this situation there is no inference that Jacob L. Souders paid out any greater sum than he actually owed.

But will the fact that the remaindermen...