Willoughby v. Brandes

• Citation: 297 S.W. 54,317 Mo. 544
• Decision Date: 25 June 1927
• Docket Number: 25904
• Parties: Ben Willoughby, Joseph H. Willoughby, Mrs. Laura Budde and Mrs. Lucy Briqueleur, Appellants, v. William Brandes, Dorothy Brandes, Mary Ann Willoughby and Anna Brandes
• Court: United States State Supreme Court of Missouri

297 S.W. 54

317 Mo. 544

Ben Willoughby, Joseph H. Willoughby, Mrs. Laura Budde and Mrs. Lucy Briqueleur, Appellants, v. William Brandes, Dorothy Brandes, Mary Ann Willoughby and Anna Brandes

No. 25904

Supreme Court of Missouri

June 25, 1927

Motion for Rehearing Overruled July 30, 1927.

Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.

Affirmed.

Raleigh McCormick, W. W. Cohick, Robert A. Powell and Lee A Hall for appellants.

(1) The will having been duly probated in the county where the real estate in question was situated, anyone dealing with the title to the property which stood on the record in the name of Willoughby had constructive notice of the fact that the widow was only a life tenant with the remainder over to the children. Brandes took the title which the widow had and no more, and since she could not defeat the remaindermen neither could he, and he took the title as a trustee for the remaindermen on the termination of the life estate. De Weese v. Reinhard, 165 U.S. 386, 392; Case v Goodman, 250 Mo. 112; Price v. Morrison, 236 S.W. 297; Allen v. Ligon, 175 Ky. 767; Russell v. Ransom, 76 Ill. 167; Falvey v. Hicks, 286 S.W. 385. (2) The life tenant is under the duty of protecting the remaindermen in the title, especially where, as here, that life tenant was the mother of the remaindermen, who were minor children, and cannot acquire a title adverse to those remaindermen. McMichaels v. Reese, 190 S.W. 51. (3) Brandes, with both actual and constructive notice of the title of the widow and the rights of the remaindermen, her children, could acquire no better title than his grantor had. Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 281; Stuart v. Ramsey, 196 Mo. 404; Case v. Goodman, supra. (4) The property which Brandes claims to have bought from the widow by warranty deed to the fee for $ 1460 was at the time worth fully ten times that purchase price and was only subject to $ 3,000 against the fee, and $ 2400 against the life estate in addition. The widow was then thirty-seven years old and her life estate was worth many times what was against the property, and Brandes paid a grossly inadequate price. This inadequate price is so glaring in this case as to be evidence of fraud, and is so far below the fair value of the life estate as to put Brandes upon inquiry and to bind him with notice of all he would have found upon inquiry. Clelland v. Clelland, 235 S.W. 816; Hoppin v. Doty, 25 Wis. 573, 591; De Witt v. Perkins 22 Wis. 473; Lionberger v. Baker, 88 Mo. 447. (5) No cause of action accrued to the plaintiffs which they were bound to assert: (a) As to the part of the property which was properly assignable as a homestead until the life tenant died. (b) In any case or view, as to the surplus over the statutory homestead within the period of limitations (Falvey v. Hicks, supra); and (c) Respondents claimed title through a trustee ex maleficio, with notice, and are trustees ex maleficio in law and in fact and cannot plead the statute of limitations when called to account by their cestui que trust. Case v. Goodman, supra; Willys v. Robinson, 237 S.W. 1035.

Watts & Gentry for respondents.

(1) It clearly appeared that whatever was given to the widow by the will, so far as it affected the real estate, was completely lost by the foreclosure sale under the deed of trust, in which both she and her husband had signed away all their title to the trustee, and that said sale had been made to Jones, who thereby acquired the fee-simple title, and that thereafter he deeded the fee-simple title to Mrs. Willoughby. From the time of the foreclosure sale there was no life estate, for the widow had completely lost it. What she had when she sold to Brandes was the fee-simple title and that is what he got. Becker v. Becker, 254 Mo. 668; Wenzel v. O'Neal, 222 S.W. 392; Stephens v. Ells, 65 Mo. 456; Aubuchon v. Aubuchon, 133 Mo. 260; Starkweather v. Jenner, 216 U.S. 524. (2) There was no duty on the part of Mrs. Willoughby, as life tenant, after her purchase from Jones, to protect the children of James Willoughby in their interests as remaindermen under his will, because the real estate did not pass by that will, but the devise in the will was defeated by the sale of the property under the deed of trust which Willoughby and his wife had executed in January, 1875. Hence, the children were not remaindermen, there was no life tenancy left, for it had been destroyed by that foreclosure sale, and when Mrs. Willoughby acquired the property from Jones, who had purchased it at the foreclosure sale, she got the fee-simple title and no longer had any life estate. Cases supra. (3) There was no evidence of any fraud on the part of either Mrs. Willoughby or Brandes. Fraud must be proved, it cannot be merely inferred in the absence of clear proof. If the facts shown are as consistent with fair dealing and honesty of purpose as with fraud, then fraud will not be inferred. Ulrich v. Pierce, 233 S.W. 401; Garesche v. MacDonald, 103 Mo. 1. (4) If a cause of action ever accrued in favor of the plaintiffs entitling them to a decree canceling the deed of March 6, 1880, from Mary Ann Willoughby to defendant, William Brandes, that cause of action accrued as soon as the youngest one of the plaintiffs became of age, which was in 1892. This is not an action for possession of the property, but an action in equity to remove an alleged cloud from a title by canceling the said deed. In no event was it necessary for plaintiffs to wait until the death of Mrs. Willoughby -- in fact they did not wait until her death to bring such an action. This cause of action accrued in 1892, and was barred in ten years thereafter. Such an action falls within the ten-year statute. Secs. 1315, 1316, R. S. 1919; Newton v. Rebenack, 90 Mo.App. 659; Hunter v. Hunter, 50 Mo. 445. The statute begins to run as soon as the right of action accrues. Keeton's Heirs v. Keeton's Admr., 20 Mo. 530; Newton v. Rebenack, 90 Mo.App. 659; Hudson v. Cahoon, 193 Mo. 547; Boyd v. Buchanan, 176 Mo.App. 56. (5) The defense of laches ought to be upheld. Rutter v. Carothers, 223 Mo. 640; Betzler and Clark v. James, 227 Mo. 392; Bobb v. Wolff, 148 Mo. 348; Price v. Boyle, 229 S.W. 206; Stevenson v. Saline Co., 65 Mo. 429; Bliss v. Prichard, 67 Mo. 181.

OPINION

Ragland, J.

This is a suit in equity to cancel and set aside a deed alleged to be a cloud on plaintiffs' title to a certain tract of land in St. Louis County, consisting of 147.98 acres. The facts out of which the controversy grows are substantially as follows:

James Willoughby, who died on the 26th day of February, 1875, at the time of his death owned the land in fee and with his family occupied it as a home. Willoughby left surviving him a widow, defendant Mary Ann, and six children, all minors. Two of the children died without issue or surviving spouse. The four remaining are the plaintiffs in this case. The defendant, Mary Ann Willoughby, died after the institution of the suit and pending the appeal. By his will James Willoughby devised to his wife "her dower portion under the provisions of the statute," and to his children the remainder of his estate in equal parts. No executor was named and one Withinton was granted letters of administration with the will annexed.

Shortly before his death, on January 12, 1875, Willoughby and wife gave a deed of trust on the land in question to secure the payment of his notes therein described, one being a principal note for $ 3,000, due three years thereafter, and six being interest notes, each for $ 150, due 6, 12, 18, 24, 30 and 36 months after said date. In the course of the administration of Willoughby's estate all of these notes were presented by the holder, Charles L. Jones, and were allowed and classified as demands of the fifth class. Pending an order to sell the real estate to pay debts, made by the probate court, the widow petitioned the court to appoint commissioners to assign her dower and to set out the homestead of herself and the minor children. Commissioners were appointed and in due course made report of their proceedings. That report on exceptions filed by certain creditors of the estate was disapproved and the widow thereafter appealed from the order of disapproval to the circuit court. While this appeal was pending, Jones, the holder of the notes heretofore referred to, caused the land to be sold at public sale by the trustee in the deed of trust in conformity with the provisions of that instrument. At such sale, had on April 14, 1879, Jones became the purchaser for the sum of $ 5010, which seems to have been the amount of his debt plus the expenses of the foreclosure. On the same day he received a deed of conveyance from the trustee. Two days later Jones, by quit-claim deed and for the expressed consideration of $ 6,000, conveyed the premises to the widow, Mary Ann Willoughby. On the same date, April 16, 1879, Mrs. Willoughby executed a deed of trust on the land to secure a cash loan of $ 4800 made to her by one Nitzschmann, as evidenced by a promissory note of that date, due two years thereafter and bearing interest from date at the rate of ten per cent per annum. Following these transactions the widow dismissed her appeal in the dower and homestead proceeding. On November 26, 1879, she borrowed $ 600 more and gave a second deed of trust on the land to secure it. On March 6, 1880, she conveyed the land by a general warranty deed to defendant William Brandes. The consideration named in the deed was $ 6,866.65. On May 26, 1923, Brandes and his wife for the expressed consideration of one dollar conveyed the land by general warranty deed to their daughter, defendant Dorothy Brandes, who on the same day and for a like consideration reconveyed to her father and mother.

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