Williams v. Walker

• Decision Date: 03 August 1933
• Docket Number: No. 31280.,31280.
• Citation: 62 S.W.2d 840
• Parties: J.F. WILLIAMS, ELVIE LAUNIUS, LUTHER WILLIAMS and GRACIE WILLIAMS CONNER, by her guardian and curator HENRY A. McKAY, v. E.J. WALKER, M.T. WALKER, E.L. WALKER, F.E. RASPBERRY and ETTIE RASPBERRY, Appellants.
• Court: Missouri Supreme Court

62 S.W.2d 840

J.F. WILLIAMS, ELVIE LAUNIUS, LUTHER WILLIAMS and GRACIE WILLIAMS CONNER, by her guardian and curator HENRY A. McKAY, v. E.J. WALKER, M.T. WALKER, E.L. WALKER, F.E. RASPBERRY and ETTIE RASPBERRY, Appellants.

No. 31280.

Supreme Court of Missouri, Division One.

August 3, 1933.

Appeal from Dunklin Circuit Court. — Hon. W.S.C. Walker, Judge.

REVERSED AND REMANDED (with directions).

Orville Zimmerman and Oscar V. Seed for appellants.

(1) The court erred in permitting the plaintiffs to attack the judgment and proceedings of the probate court in this suit which is suit to determine title and ejectment, and on the evidence should have rendered judgment for defendants. (a) The approval of the report of sale by administrator was a final judgment from which an appeal would lie. A judgment rendered by a probate court is entitled to same credit and presumption as courts of general jurisdiction and cannot be attacked in a collateral proceeding, this conclusion is based upon the rulings of this court from its very earliest history down to the present time. Thompson v. Pinnell, 199 S.W. 1011; Oldaker v. Spiking, 210 S.W. 59; Wilson v. Wilson, 164 S.W. 561, 255 Mo. 528; Robbins v. Boulware, 88 S.W. 674, 190 Mo. 33; Covington v. Chamblin, 57 S.W. 728, 156 Mo. 574. (b) In Missouri an administrator's deed properly executed and acknowledged and which contains the recitals required by law is evidence of the facts therein stated. Camden v. Pain, 4 S.W. 86, 91 Mo. 117. (c) An order by a probate court for the sale of decedent's real estate to pay his debts is a judgment of that court that the circumstances warranting a sale do exist and such a sale is necessary and a sale thereunder cannot be collaterally attacked on the ground it was not necessary to pay decedent's debts. Macey v. Stark, 21 S.W. 1088, 116 Mo. 481. (2) The court erred in not requiring the plaintiffs who were seeking equity to do equity as a condition to recovery. No tender of the benefits received was made by plaintiffs or even offered. (a) Plaintiffs who are heirs of deceased benefited by having the two deeds of trust paid off that were placed thereon by the deceased during his lifetime in the sum of $3750, and the two minors who are complaining that the homestead was sold out from under them received $1440, the same being a part of the $2250, equity paid to the administrator. Johnson v. Adams, 7 S.W. (2d) 1010. (b) Where the proceeds of the sale are used to pay off an incumbrance on the land which was a lien prior to the attaching of the interest of the heirs, the heirs in order to recover must refund the amount paid as it was paid for their benefit and they were benefited to the amount of the payment. Berry v. Stigall, 162 S.W. 126, 253 Mo. 690. (c) "He who seeks equity must do equity."

McKay & McKay for respondents.

(1) The judgment of the trial court is without error for the following reasons: (a) The southwest quarter of the southwest quarter of section eighteen (18), township twenty-one (21) north, range ten (10) east, was the homestead of J.A. Williams, deceased, father of plaintiffs, and upon his death descended to the two minor defendants. Sec. 612 R.S. 1929: Brewington v. Brewington, 211 Mo. 48. (b) The homestead shall not be subject to sale for the debts of the husband unless such debts be legally charged thereon during his lifetime. Sec. 612 R.S. 1929; Anthony v. Rice, 110 Mo. 229; Balance v. Gordon, 247 Mo. 119; Dalton v. Simpson, 270 Mo. 287; Lewis v. Barnes, 272 Mo. 377; January v. Morrow, 274 Mo. 543; Libby v. Howard, 288 Mo. 148; Dennis v. Gorman, 289 Mo. 1; Nettleton Bank v. McGauhey's Estate, 2 S.W. (2d) 771. (c) The probate sale in this case at bar was not made to pay any debts legally charged against the homestead in the lifetime of the deceased. J.A. Williams, according to the record, and the order of the probate court authorizing such sale was coram non judice. Libby v. Howard, 288 Mo. 148. (d) Since the amendment of the homestead law in 1895 the real estate which constitutes the homestead cannot be sold subject to the homestead and an attempted sale is void. Armour v. Lewis, 252 Mo. 568. (e) An administrator's sale will not divest the homestead right of the minor children of the decedent unless it is made to pay debts contracted before the filing of the deed under which they claim. The burden of proving that it was so made rests upon the one denying their right. Rogers v. Marsh, 73 Mo. 64; Balance v. Gordon, 247 Mo. 127; Kelsey v. Frazier, 78 Mo. 111; Anthony v. Rice, 110 Mo. 223. (f) The fact being shown that the land in controversy was the homestead of the debtor made a prima facie case against the validity of the administrator's sale where at the death of the debtor the entire title of which he had been seized vested in the minor children by force of statute. Lewis v. Barnes, 272 Mo. 393. (2) Where the homestead does not exceed 160 acres and is mortgaged the amount of the mortgage must be deducted from the total value of the land, and the homesteader allowed a homestead not exceeding $1,500 in what remains of the total value of the land, after the mortgage is deducted. Reed Bros. v. Nicholson, 189 Mo. 396; Houf v. Brown & Shenkle, 171 Mo. 207.

HYDE, C.

This suit was to determine the title to 108 acres of land in Dunklin County. All parties claim under J.A. Williams, who died seized of said land February 5, 1921. Plaintiffs are his children. His wife did not survive him. This suit is in two counts: Count One alleged that plaintiffs owned the land, but that defendants claim some interest in it, and prayed the court to try, ascertain and determine the title and adjudge plaintiffs to be the owners in fee simple thereof; Count Two was ejectment.

Defendant E.J. Walker filed a separate answer denying plaintiffs' title and claimed the fee to twenty-eight acres of the land, which J.A. Williams had never mortgaged. He alleged that he purchased this twenty-eight acres of land, together with the other eighty acres described in plaintiffs' petition, from the administrator of plaintiffs' father's estate on May 5, 1922. He further alleged that, as a part of the purchase price of the whole 108 acres, he agreed to pay off the two mortgages on the eighty acres made by plaintiffs' father; that he did pay off the second mortgage, paid all interest on the first mortgage until it matured in 1928, and paid the taxes since 1922; but that he did not pay the principal of the first mortgage, when the same matured, because plaintiffs then claimed title to the land. Defendant then stated that he was entitled to and prayed for an equitable lien upon this eighty acres of the land for the amounts he had advanced to pay the second mortgage, interest and taxes on it and for interest on these advances, against any interest plaintiffs might have in this eighty acres of the land. His answer to the second count was a general denial.

Plaintiffs, in reply to this answer, made general denial of the new matter and further alleged that forty acres of the land, to-wit, the southwest quarter of the southwest quarter, section 18, township 21, range 10, was the homestead of their father; and that the first mortgage on the land "was on the 5th day of May, 1922, fully paid off and discharged and from that time to the present has not been a binding obligation against the land."

Defendants M.F. and E.L. Walker (sons of defendant E.J. Walker) filed a separate answer in which they denied plaintiffs' title to the eighty acres mortgaged by plaintiffs' father as above stated and alleged that they were the owners of this eighty acres by reason of acquiring the title thereto of the purchaser at the foreclosure sale under the first mortgage. Plaintiffs' reply to this answer was a general denial and also a specific denial that the first mortgage was a binding obligation because, as it alleged, this mortgage was fully paid off and discharged on May 5, 1922.

There was not much controversy about the material facts. Plaintiffs' father, J.A. Williams, during his lifetime, on February 23, 1918, executed a first mortgage on eighty acres of the land, including the forty acres which plaintiffs claimed and defendants admitted was his homestead, securing a note to C.A. Kiesler (owned by St. Louis Farm Mortgage Company) of $1650, due February 23, 1928. He also executed a second mortgage on this eighty acres of land to defendant E.J. Walker and his partner securing a note for $1334.35. In 1922, the administrator of the estate of J.A. Williams filed a petition for the sale of all his farm, 108 acres, in the Probate Court of Dunklin County. After proper service and publication, an order of sale was made and thereafter the administrator filed a report of a private sale of the whole 108 acres to E.J. Walker for $6,000. Thereafter, an administrator's deed to the whole 108 acres was delivered to E.J. Walker. This deed recited that E.J. Walker had paid the administrator $6,000, the amount of his bid, and that "the grantor assumes all trust deeds against above described property and agrees to pay off said liens out of the purchase money paid by grantee; to-wit: One deed of trust from J.A. Williams to Missouri Loan and Investment Company in the sum of $1334.35, and one from J.A. Williams to C.A. Kiesler in the sum of $1650." The amount of both of these trust deeds, and accrued interest thereon, was $3740.37. Apparently, E.J. Walker wrote the administrator a check for $6,000 and the administrator then gave him a check for $3740.37. E.J. Walker, however, thought that he held out that amount and gave the administrator his check for the difference. Perhaps the first mortgage could not be paid off because it had not matured. Nevertheless, the second mortgage, of which E.J. Walker was part owner, was immediately canceled and released and several years' delinquent interest was paid on the first mortgage, but the principal of the first mortgage was not paid. When it came due in February, 1928, ...