Vance v. Humphreys

• Decision Date: 08 May 1922
• Docket Number: No. 3117.,3117.
• Parties: VANCE v. HUMPHREYS et al.
• Court: Missouri Court of Appeals

241 S.W. 91

210 Mo. App. 498

VANCE v. HUMPHREYS et al.

No. 3117.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by W. Vance, administrator of the estate of Lina Vance Goforth, against T. E. Humphreys and another. From judgment for plaintiff, defendants appeal. Affirmed.

Don O. Vernon, of Lebanon, for appellants.

Phil M. Donnelly, of Lebanon, for respondent.

COX, P.

Action on a note and for foreclosure of a deed of trust securing it. Trial by court. Judgment for plaintiff, and defendants have appealed.

The execution of the note and deed of trust were admitted, but failure of consideration pleaded as a defense. The controversy arose out of the following facts: Certain land in Laclede county, Mo., had been conveyed by deed to Jennie A. Humphreys for life with remainder to her bodily heirs. Jennie A. Flumphyeys is still living, but had conceived the idea that she wanted the land divided in her lifetime so there would be no trouble after she was dead. On October 19. 1914, she had four children and one granddaughter a child of a deceased daughter, living. These were the only heirs apparent of her body at that time. Three of the children, to wit, Della Fletcher, Mollie Webb, and T. E. Humphreys, were adults and married. Relda Humphreys and the granddaughter Lina Vance were minors. On October 19, 1914, Jennie A. Humphreys, the three adult children, and the father and grandfather of the minor, Line Vance, who represented her, met at the office of Mr. Kellerman, a lawyer in Lebanon, and Jennie A. Humphreys then inquired of Mr. Kellerman whether a division of the land could be' made. He examined the title and Informed them that the minors could not make deeds that would bind them so that they could not repudiate them when they reached their majorities, and also informed them that Jennie A. Humphreys, the mother, only had a life estate, and the fee was in her bodily heirs, and her bodily heirs that were living at her death would be the persons that would take the land, but that a division could be made that would bind all except the minors, and that, if they did not repudiate it when they became of age, they would be bound also. As a result of this conversation, it was agreed among those present that a division should be made as the mother seems to have wished it. In this division defendant T. E. Humphreys and Lina Vance, one of the minors, was to have the 140 acres described in the deed of trust sought to be foreclosed in this case, but this 140 acres could not well be divided, so it was agreed that T. D. Humphreys should buy the interest of Line, Vance for $500, and, since she was a minor, and they knew she could not make a binding contract at that time, it was agreed for her to sign the deed with the others conveying the land to T. E. Humphreys, and he and his wife would execute a note for $500 payable to her on or before April 18, 1921, when she would reach her majority and secure it by a mortgage on the land. This was done.

The note is as follows:

                "$500.        Lebanon, Mo., Oct. 19, 1914
                

"On or before April 18, 1921, on delivery or tender of delivery of a deed more fully described and hereinafter referred to, we promise to pay to Lina Vance or her order five hundred dollars at Lebanon, Mo., for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of 8 per cent. per annum. Said interest shall become as principal at end of each and every Year, and shall draw interest at the same rate and be due and payable at same time as the principal sum. "

"This note is given for the purchase price of the W. ½, of the N. W. ¼ and the S. E. ¼ of the N. W. ¼ and the N. E. ½ of the N. E. ¼ of the S. W. ¼ of section 9, in township 32, range 14, and should the payee of this note fail or refuse to deliver or tender delivery of deed to said land according to a contract of even date herewith signed by the parties to this note and the children of Jennie A. Humphreys and others, then this note to be null and void; otherwise to be and remain in full force and effect.

                                [Signed] T. Humphreys
                               "[Signed] Susie Humphreys."
                

The deed of trust is in the usual form. To consummate the division of the land, a deed was drawn up by Mr. Kellerman and signed and acknowledged by all the parties and the husbands and wives of those who were married, including both the minors and also D. A. Vance and Wm. L. Vance, the father and grandfather of the minor Lina Vance.

This deed is as follows:

"This indenture made on this 19th day of October, 1914, by and between Mollie Webb, Della Fletcher, Emmett Humphreys, Relda Humphreys, W. F. Vance, Daniel Vance, and Lina Vance, parties, witnesseth: That whereas, Mollie Webb, Della Fletcher, Emmett Humphreys, and Relda Humphreys, of legal age, except Relda Humphreys, sole and only children of Jennie A. Humphreys, and Lina Vance, a minor and grandchild of said Jennie A. Humphreys, are the sole and only heirs inchoate of the body of Jennie A. Humphreys, and as such are the prospective owners in fee of land in Laclede county, Mo., hereinafter fully set out and described;

"And whereas, W. F. Vance is the grandfather and has present actual custody and Daniel Vance is the father and natural guardian of said Lina Vance;

"And whereas, the said heirs inchoate of the body of said Jennie A. Humphreys are desirous of making a present division of land hereinafter set out among themselves so that each for himself and herself may make any betterment and improvement he or she may wish on the particular tract he or she may receive and know that said improvement and betterment will inure to the one so making, have agreed that the division shall be as follows: Mollie Webb shall take [certain lands]; Della Fletcher shall take [certain lands]; Relda Humphreys shall take [certain lands]; Emmett Humphreys and Lina Vance shall take the W. ½ of the N. W. ¼ and the S. E. ¼ of the N. W. ¼ and the N. E. ½ of the N. E. ¼ of the S. W. ¼ of Sec. 9, Tp. 32, R. 14—and for a further division between said Emmett Humphreys and Line Vance, the said Lina Vance agrees to sell to said Emmett Humphreys her interest in said last above described tract and said Emmett Humphreys agrees to purchase same at and for the price and sum of $500, with interest from date at the rate of 8 per cent., compounding at annual rests. The said principal sum and interest so compounding shall be due and payable on the 18th day of April, 1921, or at any prior period when said Lina Vance or any one for her is able to make a good and legal deed of conveyance that will effectually convey a good title to said land and does make and deliver or tender delivery of such deed of conveyance to said Emmett Humphreys for said land and does further ratify all her agreements and covenants in this instrument entered into;

"And whereas, said Emmett Humphreys has made, executed, and delivered to said Line Vance his promissory note in the sum of $500, due on or before April 18, 1921, bearing interest at the rate of 8 per cent. per annum, and the said interest to bear interest at the same rate, compounding annually, but to be null and void if said Lina Vance shall fail to tender delivery of a deed conveying a sufficient and legal title to the land above set out, which note is secured by deed of trust as evidenced by note and deed of trust separate from this instrument.

"And whereas, the said W. F. Vance and Daniel Vance, grandfather and father respectively of said Lina Vance, being present and fully advised of all agreements and covenants herein entered into, have consented and advised said Lina Vance to become a party to this agreement:

"Now, therefore, the parties to this indenture do hereby bind themselves and their heirs to use their best and every effort to make the agreements and covenants herein entered into effectual in every respect for the division of the land hereinbefore described in the manner hereinbefore set out.

"Further now Della Fletcher and her husband, Emmett Humphreys, and his wife, Relda Humphreys, and Lina Vance, for and in consideration of the sum of $1 to them paid and the agreements and covenants herein entered into, do by these presents grant, bargain, and sell unto Mollie Webb [certain lands].

"To have and to hold the premises aforesaid, with the rights, privileges, appurtenances, and immunities, unto said Mollie Webb and unto her heirs and assigns forever.

"And Mollie Webb and her husband, Emmett Humphreys, and his wife, Relda Humphreys, and Lina Vance, for and in consideration of the sum of $1 to them paid and the agreements and covenants herein entered into, do by these presents grant, bargain, and sell unto Della Fletcher [certain lands].

"To have and to hold the premises aforesaid, with all the rights, privileges, and appurtenances thereto belonging, unto said Della Flecher and unto her heirs and assigns forever.

"And Mollie Webb and her husband, Della Fletcher, and her husband, Emmett Humphreys, and his wife, and Lina Vance, for and in consideration of the sum of $1 to them paid and the agreements and covenants herein entered into, do by these presents, grant, bargain, and sell...