Souders v. Kitchens

• Decision Date: 06 March 1940
• Docket Number: 36789
• Citation: 137 S.W.2d 501,345 Mo. 977
• Parties: Ollie C. Souders v. Clara Kitchens and Mary Jost, Appellants
• Court: Missouri Supreme Court

137 S.W.2d 501

345 Mo. 977

Ollie C. Souders v. Clara Kitchens and Mary Jost, Appellants

No. 36789

Supreme Court of Missouri

March 6, 1940

Appeal from Crawford Circuit Court; Hon. William E. Barton Judge.

Affirmed.

Edward D. Summers for defendants-appellants.

(1) 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 birth of issue born alive and capable of inheriting the estate, and consummate, or taking effect in possession upon the death of the wife. Souders v. Kitchens, 124 S.W.2d 1137; Tiedeman on Real Property (4 Ed.), sec. 75. (2) Prior to 1921, the estate by the curtesy existed in this State. Laws 1921, p. 119; Sec. 319, R. S. 1929. (3) The purchase of land at foreclosure by an intermediary, and his immediate reconveyance to the life tenant for the same consideration is in legal effect a purchase by the life tenant. Souders v. Kitchens, 124 S.W.2d 1137; Peak v. Peak, 228 Mo. 536, 128 S.W. 981. (4) The purchase of land at foreclosure by a life tenant is deemed to have been made for the benefit of himself and the remaindermen, if the latter see fit within a reasonable length of time thereafter to contribute their share of the purchase money. But the rule requiring such contribution by the remaindermen has no application where the life tenant himself is obligated to pay the debt which the incumbrance was given to secure. Souders v. Kitchens, 124 S.W.2d 1137. (5) Limitations do not run against remaindermen until they become entitled to possession by death of life tenant. Souders v. Kitchens, 124 S.W.2d 1137; Herndon v. Yates, 194 S.W. 46. (6) An action to quiet title to real estate is an action in equity if the pleadings show that equitable rights are invoked to establish title in the defendant who seeks affirmative relief. Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81. (7) In an equity suit, on appeal, it is the duty of the appellate tribunal to review the entire evidence, and to consider only that which is competent. Brightwell v. McAfee, 249 Mo. 562, 155 S.W. 820; Commerce Trust Co. v. Foulds, 221 Mo.App. 317, 273 S.W. 229. (8) Findings of fact cannot be based upon evidence which is not admissible. State ex rel. Alton Railroad Co. v. Pub. Serv. Comm., 110 S.W.2d 1121; Childers v. Pickenpaugh, 219 Mo. 376, 118 S.W. 453.

G. C. Beckham and L. H. Breuer for respondent.

(1) Findings of fact by the trial court are conclusive on appeal. Sutter v. Raeder, 149 Mo. 297; Wilson v. Craig, 175 Mo. 362; Yerza, Andrews & Thurston v. Randazzo Macaroni Mfg. Co., 315 Mo. 927. (2) A finding of fact by the court sitting without a jury is equivalent to a verdict, and hence will be disturbed only when it is clearly erroneous, or shows that the judge was influenced by improper motives or misunderstood the evidence. Craig v. Maupin, 6 Mo. 250; Miller v. Breneke, 83 Mo. 163; Cook v. Farrah, 105 Mo. 492. (3) The court on appeal cannot disturb the finding below, unless the result of prejudice or a wanton disregard of the rights of the complaining party. Shockley v. Fischer, 21 Mo.App. 551. (4) In proceedings to quiet title the appellate court on appeal has only the power to review the law declared by the circuit court, and it must assume the facts to be as that court found them. Swayze v. Bride, 34 Mo.App. 414. (5) 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. DeGroodt, 105 Mo. 442; Meads v. Hutchinson, 111 Mo. 620; 1 Washburn, Real Property (5 Ed.), p. 129; Willoughby v. Brandes, 317 Mo. 544. (6) 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. (7) 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. (8) 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 Co., 65 Mo. 429; Bliss v. Prichard, 67 Mo. 181.

OPINION

Douglas, J.

This is an action to quiet title to real estate which is here for the second time. At the first trial below the plaintiff's demurrer to the defendants' answer was sustained and the defendants brought the case here on writ of error. We reversed that judgment and remanded the case for trial. [Souders v. Kitchens, 344 Mo. 18, 124 S.W.2d 1137.]

In August, 1886, Sarah E. Tyree died leaving the real estate here involved to her married daughter Louisa Tyree Souders, on condition that she make certain payments. The defendants Clara Souders Kitchens and Mary Souders Jost are the daughters of Louisa and Jacob Souders. On November 15, 1886, Louisa and her husband Jacob Souders placed a deed of trust on the property to secure the payment of $ 350. In 1892 Louisa died leaving surviving her only her husband and her two daughters, the defendants, who were minors. A little more than a year later the property was foreclosed and on the same day was conveyed to Jacob Souders, the widower. The plaintiff claims the property through mesne conveyances and alleges undisputed possession for forty-two years.

The trial court, in its decree, found that the conditions, imposed on Louisa Souders by her mother's will under which she was to make certain payments, were fulfilled with the money borrowed on the deed of trust and that such debt was a primary obligation on the land and not in effect a personal, direct debt of Jacob Souders. Therefore, the court further found, there was an obligation on the part of the defendants to contribute their proportionate amount of the purchase price at the foreclosure within a reasonable time which was neither done nor was then offered. The court also found that the property had been improved by the plaintiff and those under whom he claims and that the defendants had knowledge of such improvements at the time they were made. Its decree vested title in the plaintiff, found that the defendants had no interest in the property and barred them from asserting any.

In our previous opinion we found that upon the death of Louisa Souders her widower, Jacob, became a life tenant of the land by curtesy, which then existed, with the remander vested in her two daughters, the defendants.

A life tenant owes to the remaindermen the duty of preserving and protecting the remainder, his relationship to the remaindermen being in a sense that of a fiduciary. [Duffley v. McCaskey, 345 Mo. 550, 134 S.W.2d 62.] He will not be permitted to purchase and hold property as his own where he has a duty to perform in relation thereto inconsistent with his position as a purchaser on his own account. [Tuggles v. Callison, 143 Mo. 527, 45 S.W. 291.] If the debt secured by the deed of trust was his debt, then the purchase upon foreclosure would ordinarily be construed to be simply the payment thereof. And the life tenant cannot escape such a consequence by the artifice of purchasing the property through an intermediary.

The issue in this appeal has been confined to the single one namely, -- was the debt secured by the deed of trust to be regarded as an incumbrance for which the remaindermen as well as the life tenant were liable, or was it such a debt for which the life tenant alone was liable? If the former, the remaindermen would be subject to losing their estate unless they made contribution within a reasonable time; if the latter, the purchase by the life tenant would be regarded merely as the payment of his own debt and not a purchase of the outstanding title which he could assert against the remaindermen.

The pleadings on the second trial were amended to present squarely this...