Willoughby v. Brandes
| Decision Date | 25 June 1927 |
| Docket Number | Mo. 25904. |
| Parties | WILLOUGHBY et al. v. BRANDER et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.
Suit by Ben Willoughby and others against William Brandes and others, wherein defendants, except Mary Ann Willoughby, filed a cross-bill. Judgment for defendants, and plaintiffs appeal. Affirmed.
Raleigh McCormick, W. W. Cohick, Robert C. Powell, and Lee A. Hall, all of St. Louis, for appellants.
Watts & Gentry, of St. Louis, for respondents Brandes.
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 that 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 $5,010, 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 Tones, by quitclaim 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 $4.800 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 10 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 $1, 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.
Upon receipt of the deed from Mrs. Willoughby, in March, 1880, Brandes went into immediate possession of the land in controversy, and has ever since occupied it, visibly exercising all the rights and prerogatives of exclusive ownership, and of these facts the plaintiffs have during the intervening years been at all times fully cognizant. This suit was instituted August 27, 1923. At the time of the trial, in October, 1924, plaintiffs' ages were as follows: Lucy Briqueleur, 60; Joseph H. Willoughby, 58; Ben Willoughby, 56; and Laura Budde, 50.
Brandes paid off and discharged, at their maturity, all of the notes secured by the two deeds of trust given by Mrs. Willoughby, and with which the land was incumbered at the time she conveyed to him. Defendant Mary Ann Willoughby testified as a witness for plaintiffs. From her testimony we glean some additional facts now to be stated.
Pending the publication of the notice of sale of the land under the deed of trust heretofore adverted to, an arrangement was reached whereby Jones was to buy the land at such sale for Mrs. Willoughby, take a deed from the trustee in his own name, and then convey to her. This was done. She did not pay Jones $6,000, the consideration named in the deed from him to her, but $5,010, the amount he bid for the land, and the greater part of that sum was realized from the proceeds of the $4,800 loan, which has been negotiated for her by Jones. All of these things she told William Brandes prior to making him a deed. She did not receive from Brandes $6,866.65, the consideration named in her deed to him, but only $1,460. In this connection it should be said that plaintiffs offered to prove by Mrs. Willoughby that Brandes bought, and she intended to convey to him, her dower and homestead interest only. This proof, on objection by defendants, was excluded by the trial court. There was evidence tending to show that at the time of the conveyance to Brandes the value of the land had been variously estimated at from $8,000 to $14,000.
Other evidentiary facts will be noted, if necessary, in the course of the opinion.
The petition alleges, in substance, that James Willoughby died on February 26, 1875, owning in fee dimple the land in controversy; that said land was the home farm of deceased, upon which he and his family were residing at the time of his death; that the reasonable value of said farm at said time exceeded $25,000; that plaintiffs, who were minors at the time of their father's death, are the surviving children and heirs at law of said James Willoughby, deceased; that defendant Mary Ann Willoughby is the surviving widow of said deceased and the mother of said children; that said Mary Ann was in possession of and managed and controlled said land from the death of said deceased until March 6, 1880; that the will of said deceased, which was duly probated, devised to his widow her dower as provided by statute, and to his children equal portions of his estate; that letters of administration were duly granted to "the parties entitled thereto"; that on the 8th day of July, 1880, said estate was finally settled, and an "order of no further process" was made and entered of record by the probate court; that the widow's dower was never assigned; that Mary Ann Willoughby was the guardian of her said children; "that none of the right, title, or interest of said plaintiffs in and to * * * said real estate, or to any part thereof, * * * has ever been conveyed by them, or either of them, to any of the defendants, * * * nor has either of said plaintiffs ever authorized any person to convey or mortgage the same;" that on the 6th day of March, 1880, during the minority of the plaintiffs, defendant Mary Ann Willoughby, without authority, executed and delivered a pretended deed, in form a warranty deed, purporting to convey said property to the defendant William Brandes; that said pretended deed was made at his request, for a pretended consideration of $6,866.65, and was duly placed on the records of St. Louis county; that said widow had no right, power, or authority to execute said deed, all of which was well known to the defendant William Brandes prior to the execution and delivery thereof; that said Brandes took possession of said land under said deed, and has since wrongfully withheld the same, and clouded plaintiffs' title thereto by a deed pretending to convey the same to Dorothy Brandes, for the fraudulent purpose of depriving plaintiffs of their interest in and to said real estate; and that said alleged deed from the said widow to Brandes constitutes a cloud upon the plaintiffs' title. The petition closes with a prayer that the said deed from the widow, Mary Ann Willoughby, be canceled and for naught held, and that the defendants be enjoined from creating any liens on said property by transfer or otherwise, and for general relief.
To the foregoing petition defendants, except Mary Ann Willoughby, filed an answer and a cross-bill. In their answer, after admitting that James Willoughby at the time of his death owned the land in suit in fee simple, they aver that said Willoughby in his lifetime incumbered the land with a deed of trust in the nature of a mortgage; that after his death the trustee sold the land under and in conformity with the provisions of said deed of trust; that at such sale Charles Jones became the purchaser of the land and received a deed from the trustee conveying it to him; and that thereafter said Jones for a valuable consideration csnveyed to Mary Ann Willoughby, and subsequently she for a like consideration conveyed to the defendant William Brandes. The answer also pleads laches and the 10-year statute of limitations in bar. The cross-bill is in form and substance similar to a petition in an action to determine title under section 1970, R. S. 1919.
Plaintiffs' reply to defendants' answer and their answer to defendants' cross-bi...
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