Swon v. Huddleston

• Decision Date: 12 September 1955
• Docket Number: No. 2,No. 44649,44649,2
• Citation: 282 S.W.2d 18,55 A.L.R.2d 205
• Parties: John H. SWON, Ethel M. Anderson, Ella Englehart, Kathryn Adcock and Wallace E. Bell, Respondents, v. John HUDDLESTON and Claude Huddleston, Appellants
• Court: Missouri Supreme Court

Page 18

282 S.W.2d 18

55 A.L.R.2d 205

John H. SWON, Ethel M. Anderson, Ella Englehart, Kathryn Adcock and Wallace E. Bell, Respondents, v. John HUDDLESTON and Claude Huddleston, Appellants.

No. 44649.

Supreme Court of Missouri, Division No. 2.

Sept. 12, 1955.

Ralph L. Alexander, Warren D. Welliver, Columbia, Frank B. Edwards, Mexico, Alexander, Harris & Welliver, Columbia, Fry, Edwards & Wright, Mexico, of counsel, for appellants.

D. M. Cuthbertson, Fulton, for respondents.

EAGER, Judge.

This is a suit in equity denominated 'Petition to Have Deed Declared a Mortgage,' but the prayer was for a decree declaring also that title to 360 acres of land was vested in the plaintiffs, for possession, and for general relief. The trial court found generally for plaintiffs on all issues, and entered a decree divesting defendants of title. Appeal has been duly taken. The action directly involves the title to real estate and jurisdiction is properly here; it was filed in the Circuit Court of Callaway County, where the land is located, but was transferred to Audrain County and tried there.

The record is long and the facts complicated. We shall only be able to recite those facts which are definitely material. John Swon died in 1905, leaving four children surviving him and leaving also considerable property, both real and personal. These children were John E., Allie Mae, Georgia Belle and Ella (who later married Marvin Wallace, and is referred to herein as Ella Wallace.) By his will John Swon disposed of sundry real and personal property; we are concerned here only with the interest of the son, John E. Swon, therein. By this will the land here in question and other property was devised to a trustee for John E. Swon; upon his death his widow, Ida Swon, if living, was to have a life estate in a specified tract of approximately 165 acres, and the other portions were to be conveyed by the trustee in fee simple to 'the children of John E. Swon' (as was likewise directed with reference to the 'life estate' tract on the death or re-marriage of Ida Swon). The original trustee declined to act; Don P. Bartley was appointed and continued to act until 1934, when he resigned and was succeeded by Wilmer C. Huddleston, a brother of Ida Swon. Huddleston acted as trustee for approximately five years. The defendants here are the surviving sons of Huddleston. John E. Swon (the deviseeson) died on October 9, 1938, leaving surviving him his widow, Ida, a son, John H. Swon, and four children of a deceased daughter (Ethel Bell). The son and four grandchildren of John E. Swon are the plaintiffs in this case. The widow, Ida Swon, died in June, 1950.

Following the death of John E. Swon, Wilmer C. Huddleston, as Trustee, filed in the Circuit Court of Callaway County, his petition for authority to make final settlement of the trust estate, with his accounts attached, setting out sundry facts, and listing the property remaining (all consisting of real estate), and he prayed an order approving his final settlement and ordering distribution. An order was entered on July 18, 1939, reciting that the deed of the trustee had been examined and it was ordered that the deed be recorded and delivered and that the trustee W. C. Huddleston and his sureties 'be, and they are finally discharged herein.' No such deed was in evidence, nor was its absence accounted for.

Somewhat out of chronological order, we must pick up the following facts: on January 2, 1930, a judgment had been entered for $1,903.30 in favor of The Peoples Bank of Auxvasse against John H. Swon and his wife in the Circuit Court of Callaway County. Execution was issued and levied on the interest of John H. Swon in this land, and that interest sold at public sale on February 17, 1930, to J. R. Baker on a bid of $500; it was deeded to him on March 31, 1930. At this time John E. Swon, the father, was still alive. By mesne conveyances this interest of Baker later vested in J. C. Smith (two-thirds) and Frank Baker (one-third). Since these latter persons also acquired the same interest by a subsequent levy and sale, we do not think it necessary to consider the validity of the 1930 levy and sale. After the death of John E. Swon (October 5, 1938), J. C. Smith procured judgment against John H. Swon in the same court in the amount of $2,853.97 on March 1, 1939; again, execution was issued and levied on the interest of John H. Swon in the lands in question, and a sale had on June 17, 1939; on a bid of $50, this interest was conveyed by the sheriff to J. C. Smith and Frank P. Baker. Although counsel for respondent refer to this latter sale as 'unconscionable,' there was never a direct attack upon it, and at the trial counsel conceded that John H. Swon had, in fact, lost his title by reason of these execution sales.

At the September 1939 term of the Circuit Court of Callaway County J. C. Smith and Frank P. Baker (holders of the execution titles) instituted a suit in two counts: (1) to try and determine title to the land in question, and (2) to partition it; named as defendants were the present plaintiffs, Ida Swon, W. C. Huddleston, Trustee, and Nellie Tompkins, the holder of a note and deed of trust executed by the previous trustee. The proceedings in that case are not completely shown, but the petition, one answer and the decree appear in full; no appeal was taken, and there is no attack here on the jurisdiction of that court. We may also note that the appellants here are claiming title solely under the sale in that proceeding. The record recites that a guardian ad litem was there appointed for the minor defendants. In the decree the court found that John H. Swon had been completely divested of all interest in the land, that Ida Swon was entitled to a life estate in a specified tract thereof, and that the owners in common were: J. C. Smith, one-third; Frank P. Baker, one-sixth; and the four grandchildren of John E. and Ida Swon (plaintiffs herein) one-eighth each. The court ordered: that title be quieted accordingly; that John H. Swon was 'forever barred'; that a partition sale of the land be had, subject to the life estate of Ida Swon; and that the note and deed of trust (in the amount of $1,237) be paid out of the proceeds of sale. At this time there were back taxes of approximately $1,100 against the land. A public sale in partition was had on December 3, 1939, and all the land was then struck off to W. C. (Wilmer C.) Huddleston on a bid of $2,675. There was direct evidence by one witness that one tract of 160 acres was offered first and the bid was $2,650; that all the land was then offered and it brought $2,675. Two days after the sale Huddleston and Ida Swon executed their note and deed of trust to Nellie Tompkins for $2,000, presumably as a method of raising most of the purchase price. Three of the grandchildren testified that so far as they knew they received none of the proceeds of this sale. The sale was approved by the court and deed executed and delivered. Out of that sale and the surrounding circumstances arises the present controversy. Huddleston immediately entered into possession of all the land except that of the life tenant, and farmed it, receiving whatever rents and profits there were for a period of ten years until his death on January 20, 1950; since his death the defendants have continued in possession, and since the death of Ida Swon (June, 1950) they have presumably occupied and farmed all the land.

The plaintiffs contend that Huddleston, by previous arrangement and agreement, bought the land for them at this sale, to hold it for them, use it, and convey it to them when he had reimbursed himself for his outlay and expenses. The trial court admitted (over objection) evidence of conversations at the home of Ida Swon on the day before the partition sale, in which Ida Swon supposedly said that she had talked to Huddleston (her brother), that she was not 'bothered' a bit about the sale, that 'Wilmer was taking care of it,' and was 'bidding it in for her and the children,' and that when he got his money out of the land, he would deed it to her. Huddleston was not present at these conversations and we think the testimony was pure hearsay. We shall disregard it in our consideration.

It was shown, however, by competent evidence that Ella Wallace (a daughter of the original devisee, also the aunt of John H. Swon and great-aunt of the other plaintiffs) upon learning of the prospective sale went to see her 'own trustee' and arranged to raise from her own trust funds the necessary money to bid; that she was 'prepared to bid' for Ida and the children when she went to the sale,--to protect the heirs if 'Wilmer failed to do so,' and to see that her father's land did not go out of the family; that she did not bid because she thought Huddleston was buying it for the children. John Lewis of Kansas City was a friend of the family and he and his wife had raised Wallace E. Bell (one of the plaintiffs) from the age of three. Lewis came to Callaway County, conferred with Ella Wallace and Ida Swon prior to the sale and attended the sale to bid the land in 'for the protection of the children' if Huddleston did not get it; Lewis testified that he had five thousand dollars in a savings account, which he would have used if necessary. Immediately prior to the sale Ida Swon, W. B. Whitlow, her attorney, Wilmer Huddleston, J. C. Smith and Frank Baker conferred in an upstairs room of the temporary courthouse. When they came down, Ella Wallace and John Lewis met them and Lewis asked Huddleston if he intended to bid in the land for the protection of the heirs; he answered 'that he was,' and that he and Mrs. Swon had 'come to that agreement'; or, expressed in other language, Lewis said, 'I understand that you are going to bid this in for Ida and the heirs,' and that Huddleston said, 'Yes, I am.' This evidence was asserted very positively by Ella Wallace, who was 83 years of age at the time of trial, and by ...