Wells v. Estes

• Decision Date: 23 January 1900
• Citation: 55 S.W. 255,154 Mo. 291
• Parties: WELLS v. ESTES.
• Court: Missouri Supreme Court

55 S.W. 255

154 Mo. 291

WELLS v. ESTES.

Supreme Court of Missouri, Division No. 2.

January 23, 1900.

BILL OF EXCEPTIONS — DOWER — ADMEASUREMENT — ESTOPPEL — TRUST DEED — FORECLOSURE — SALE — PAYMENT OF DEBT — NOTICE — EFFECT.

1. It is immaterial when a bill of exceptions is signed, if it is filed within the time fixed by order of the court.

2. Where a wife joins in a fraudulent conveyance of her husband's land, and it is afterwards

set aside, she is entitled to dower in the land if she was not a party to the fraud, and received no consideration for signing the deed.

3. The provision in a trust deed that recitals in a sheriff's deed on foreclosure as to nonpayment of the debt secured by the trust deed shall be received as prima facie evidence of the facts recited, does not estop a widow, who joined with her husband in executing the trust deed, from proving by parol, in an action for the admeasurement of her dower in the mortgaged land, that, contrary to the recitals in the sheriff's deed, the debt secured by the trust deed had been paid at the time of the sale.

4. The rule that, if a purchaser at a sale under a trust deed has notice that the debt secured thereby has been paid prior to the sale, he takes no title to the land, applies to different sales under different deeds given to secure the same debt.

5. A purchaser at a sale under a trust deed, who owned the debt it was executed to secure, is bound to know if it was paid by a prior sale under another deed owned by him securing the same debt.

Appeal from circuit court, Pike county; Reuben F. Roy, Judge.

Action by Kate W. Wells against Fielden Estes. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit by plaintiff, who is the widow of Lemuel M. Wells, deceased, against the defendant, for the admeasurement of her dower in three different tracts of land to which her husband owned the title in fee during their marriage, and which are owned by and in the possession of defendant. In this litigation the tracts of land are designated as follows: One tract of 100 arpens, another of 200 acres, and a tract containing 3,001 acres, called the "Coles Tract." Plaintiff was 62 years of age at the time of the trial, which resulted in a judgment in her favor that she is entitled to dower in all three of said tracts of land, and for the sum of $9,356.55 damages. The court found that the rental value of the 3,001-acre tract was $2 per acre for each year, and, the 200-acre tract $1.50 per acre, and the 100-acre tract nothing. After unsuccessful motion by defendant for a new trial, he appeals.

Pearson & Pearson, for appellant. J. D. Hostetter, for respondent.

BURGESS, J. (after stating the facts).

The ruling and judgment of the court with respect to the 100-arpen tract is not complained of on this appeal, so that no further notice need be or will be taken of the ruling of the court with respect to that tract.

As to the 200-acre tract, the record discloses the following state of facts: On September 4, 1873, Lemuel M. Wells borrowed from Aaron McPike the sum of $6,233.33, for which he executed his note, due one day after date, bearing 10 per cent. per annum, and to secure its payment he and his wife, the plaintiff, executed their certain deed of trust to D. L. Caldwell, trustee for said McPike, on certain land therein described, containing 197 acres. This deed of trust was duly recorded in the recorder's office of Pike county, where the land lies, on September 13, 1873. Thereafter, on November 18, 1875, Lemuel M. Wells, his wife, the plaintiff joining therein with him, executed to Elijah Robinson, trustee for McPike, a deed of trust on the 200-acre tract of land in controversy, — an entirely different tract, — as additional and further security for the payment of said note. In March, 1877, McPike obtained in the circuit court of Pike county judgment against Lemuel M. Wells for the amount then due thereon, the lien of which judgment was thereafter kept in force by revivals of the judgment lien. Various payments were made by Lemuel M. Wells upon this debt until October 15, 1889, on which date the balance remaining due thereon was $5,546.35, when the note was assigned by McPike to defendant, Estes, he paying McPike the full amount then due thereon. Robinson, the trustee in the second deed of trust, declined to act, and in accordance with its provisions the sheriff of the county, Gilbert Moon, acted in his stead, and he and Caldwell advertised the property for sale under the respective deeds of trust on the 7th day of October, 1890. But the sale by Caldwell, trustee in the first deed of trust, was made first, at which the property brought the sum of $7,289, Estes himself becoming the purchaser. The proceeds of this sale amounted to more than a sufficient amount to pay off the debt, interest, and costs attending it, and the cost of advertising the property for sale under the second deed of trust; so that, when the property was offered for sale later in the day, under the second deed of trust, these facts were publicly announced at the place of sale. But Estes caused the sale of the 200-acre tract to proceed, and bought it in for one dollar per acre, and received a deed from Monroe, the acting trustee in the second deed of trust, purporting to convey to him all the interest of the grantors in said land. With respect to the 3,001-acre or Cole tract it appears that on May 18, 1887, Lemuel M. Wells, the plaintiff, his wife joining with him, conveyed this tract to Fielden Estes, the recited consideration in the deed being $48,880.03. Thereafter, on December 8, 1892, at the instance of Charles Martin and others, creditors of Lemuel M. Wells, the Pike county circuit court rendered a decree in the suit of said Martin and others against Estes, annulling and setting aside said deed on the ground that the same was made in fraud of the creditors of said Lemuel M. Wells, in which the court found that Estes paid no consideration for said land, was a party to said fraud, and acquired no title to said land by said deed. It is insisted by plaintiff that the bill of exceptions was not filed in time, and that no matter of exception should be considered on this appeal. It appears that on the 30th day of June, 1897, the court, by an entry of record, allowed defendant until the 15th day of September next following to file his bill of exceptions, and, while the record shows that the bill was signed by...