Vantage Mining Co. v. Baker
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 466,170 Mo.App. 457 |
| Parties | VANTAGE MINING COMPANY, Plaintiff, v. HORACE M. BAKER, Appellant and Respondent and W. W. BAKER, Appellant and Respondent, and BESSIE BURCHARD, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court, Division Number One.--Hon. Joseph D. Perkins, Judge.
REVERSED AND REMANDED (with directions).
W. R Robertson, S.W. Bates and R. M. Sheppard for appellant H. M Baker.
(1) Sarah E. Baker had only an inchoate right of dower in the property in controversy at the time of the execution of the lease involved herein, which interest could not be assigned released or relinquished except by joining in a conveyance with her husband. That right could not arise to the dignity of an interest in the property unless Mrs. Baker survived her husband, in which event her inchoate right of dower would have become consummate, and before her husband's death she had no interest in this property which by deed, devise or by inheritance could have been transmitted to any other person. Brannock v. Magoon, 216 Mo. 722-727; Duret v. Piper, 58 Mo. 551-554. (2) The value of her interest in this property could not be ascertained prior to her husband's death. Real Estate Co. v Spelbrink, 211 Mo. 671. (3) Where a wife joins a husband in a deed to his land and relinquishes her dower, it is implied that a portion of the consideration named in the deed or actually paid represents the value of her dower interest. Beeley v. Blake, 153 Mo. 657-672; s. c. 141 Mo.App. 316. (4) Where a lease provides that the rent mentioned therein shall be paid to the wife of the lessor at the death of the lessor, the wife's interest under the lease ceases, and she takes such an interest in the rents as she would be entitled to as dower. Murray v. Kazier, 53 N.E. 476. (5) The right to the payment of rent follows the reversion, and the right to collect it passes to the person who takes the reversion. 1 Underhill on Landlord and Tenant, sec. 336; Wood, Landlord and Tenant, sec. 455. (6) Where the remaindermen or the reversioners unite with the life tenant in the execution of a lease, as lessors, the term does not end with the death of the life tenant during the term. On the death of the life tenant the term continues and the lease at once becomes the lease of the remaindermen or reversioners. Underhill on Landlord and Tenant, p. 8. (7) Rent is incident to the reversion, and whenever that is severed, either by the act of the parties or the act of the law, the rent will follow the reversion and be payable to the assignee thereof. Stevens v. Hannock, 72 Mo. 612-15; Page v. Culver, 55 Mo.App. 606; Page v. Culver, 158 Mo. 515. (8) It is a wellsettled rule in this State and by the authorities generally that rent which accrues during the life of the landlord passes to the administrator of his estate, and that all rent accruing upon land after the death of the landlord descends to his devisees or heirs, subject only to the right of the administrator to take the same for the purpose of paying debts of the estate. Shouse v. Krusor, 24 Mo.App. 274. (9) H. M. Baker, by this assignment, undertook to convey to W. W. Baker a certain interest which the said H. M. Baker had in and to the estate of Sarah E. Baker. Under the terms of the assignment H. M. Baker conveyed only the interest which he had in the estate of Sarah E. Baker, which was shown by the records of the probate court of Jasper county, Missouri. If there was any property which belonged to the estate of Sarah E. Baker and which was not shown by the records of the probate court of Jasper county, Missouri, his interest in such property was not transferred by reason of this assignment. (10) The burden was on the appellant W. W. Baker to show that the records of the probate court of Jasper county, Missouri, relative to the estate of Sarah E. Baker included the money in question. There is no evidence introduced or which was offered that would show or tend to show in the slightest degree that the records of the probate court of Jasper county showed that the money in question or any part thereof belonged to the estate of Sarah E. Baker. The money in question arising from the royalties under the lease did not accrue until after the administrator had made his final settlement and had been discharged; the only thing which this assignment was intended to cover was such property as the administrator had in his possession, as shown by the records of the probate court.
McReynolds & Halliburton for appellant W. W. Baker.
(1) While the legal title to personal property passes and vests in the executor or administrator at the decedent's death it does not follow that he shall sell the same in order that the proceeds may be distributed among the heirs or legatees of the decedent, and it is held by the courts without exception "that the legal title that vests in the executor or administrator is in the nature of trust title for the use and benefit of the creditors or heirs of the deceased, but if there are no creditors to be paid by the sale of such property, then and in that event the heirs or legatees take such property as the equitable owners thereof. The law does not require a useless and unnecessary thing. Richardson v. Cole, 160 Mo. 372; McCracken v. McCaslin, 50 Mo.App. 85. (2) In the case at bar the administrator did not sell the chattel real that came to him in the nature of three per cent royalty in the mining lease as an asset of the decedent's estate, as it was not necessary to sell the same to pay debts, hence on final settlement as such administrator with this asset on hands it passed as a matter of equity to the parties entitled to distribution. Richardson v. Cole, supra; Walworth v. Abel, 52 Pa. St. 370; Weaver v. Roth, 105 Pa. St. 408. (3) An administrator has the legal title to the personal estate of his decedent, as trustee for the payment of debts, but after they are paid the residue of such estate belongs to the heirs. Lewis v. Lyons, 13 Ill. 177; Woodhouse v. Pheps, 57 Conn. 521. (4) In view of the fact that the trial court found that the interest of three per cent royalty set apart to Sarah E. Baker, was a chattel real and went to the administrator, then under the authorities above cited, when it was found that it was not needed to pay debts of decedent by the administrator, passed to the distributees of the deceased as a matter of right and equity and we contend that anyone of the distributees could have, if he or she so desired, assigned his or her interest in the assets of such estate. Barrie v. Railroad, 138 Mo.App. 557. (5) The elements of a sale at common law are mutual agreement, competent party, money consideration, and transfer of absolute or general property in the subject-matter. Wheless v. Grocer Co., 140 Mo.App. 572; Hotel Co. v. Grocer Co., 140 Mo.App. 592.
McReynolds & Halliburton for respondents.
(1) The question in this case is as to the effect of the covenant of the lease, "Exhibit A," record page 41, clause 4th as follows: This clause creates an interest or property in Sarah E. Baker, a covenent in her behalf, irrevocable in so far as her joint lessor or the lessees or assigns are concerned. The estate created is a chattel real, and by operation of law the legal title, at her death, goes to her executor or administrator, and thence to her heirs. (2) If, however, a leasehold is personal property, it passes, primarily, on the death of the owner, to the executor or administrator, and until the heirs or legatees receive it through the process of administration, the legal title thereto is in such legal representatives. Leakey v. Maupin, 10 Mo. 368; Gillett v. Camp, 19 Mo. 404; Rouggley v. Teichmann, 10 Mo.App. 257; Richardson v. Cole, 160 Mo. 372. (3) H. M. Baker assigned and set apart to his wife Sarah E. Baker three per cent of the rental or royalty arising from the mining lease in question, the lessee covenanted to pay the same to her, which assignment and segregation of said part of rental comes within the following rule; "The grantor may sever the rent from the reversion, by granting the land with a reservation of the rent; or by assigning the rent and either retaining the reversion himself, or conveying it to a third party who has knowledge of such assignment." Leonard v. Burgess, 16 Wis. 42 and 44; 24 Cyc. 928, and cases cited; 1 Washburn on Real Property, p. 453, sec. 10. (4) Where the rent is assigned the relation of landlord and tenant is established between the assignee. The assignee, however, has no right of ownership or right to possession and no interest beyond the term of the lease. 24 Cyc. 929, and cases cited; Demorest v. Willard, 8 Cow. (N. Y.) 206; 2 Taylor's Landlord & Tenant, p. 2; Iowa Savings Bank v. Funk, 1 Neb. 523, 92 N.W. 916; Rhoads v. Speers, 15 Pa. Dist. 535, 32 Pa. Co. Ct. 538; Watkins v. Hunkins, 13 Iowa 547; Brownson v. Roy, 95 N. W. (Mich.) 710. (5) H. M. Baker made a contract with his wife, Sarah E. Baker, agreeing that if she would join him in the mining lease she would have three per cent of the royalty for a definite period, to-wit: the life of the lease. This was agreed to by the lessee for himself and his assigns. This agreement is incorporated in the lease itself, and H. M. Baker, as well as the assignee of the lessee, is estopped from denying the contract with Sarah E. Baker. Taylor v. Fox, 16 Mo.App. 527; Irons v. Price, 14 Mo.App. 179; Church Soc. v. Branch, 120 Mo. 226; Barrett v. Baker, 136 Mo. 512. (6) The question of inchoate...
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