Witcher v. Hanley
| Decision Date | 31 July 1923 |
| Parties | MATTIE WITCHER et al. v. ELIZABETH HANLEY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Reversed and remanded.
Harvey & Bellamy, A. R. James and W. H. Meschede for appellants.
(1) The court erred in finding the issues for the plaintiffs. The purchase of land at a foreclosure sale under a deed of trust by a life tenant, will be deemed to have been made for the benefit of the remaindermen, if they contribute their portion of the purchase money within a reasonable time. Allen v De Groodt, 98 Mo. 159, 105 Mo. 442; Hinters v Hinters, 114 Mo. 26; Cockrill v. Hutchinson, 135 Mo. 67; Stitt v. Stitt, 205 Mo. 155; Peak v Peak, 228 Mo. 536; Becker v. Becker, 254 Mo. 668; Dudgeon v. Hackley, 182 S.W. 1004; Peterson v. Larson, 225 S.W. 704. (2) Remaindermen will not be barred from redeeming and recovering their land bought by the life tenant at a foreclosure sale under a deed of trust placed thereon by their common testator, simply because they did not tender to the life tenant the amount due by each of them upon the mortgage debt. In equity, if the bill contains a general offer to do equity, in conformity with the decree of the chancellor, that will suffice without making an actual tender. Peak v. Peak, 228 Mo. 536. The petitioners for review offered in their bill to do equity, in conformity with the decree of the chancellor. (3) Tennessee Sellers who, after the foreclosure sale, purchased the land in controversy from the life tenant, had both constructive notice and actual notice of the title acquired by said life tenant, and was, therefore, not an innocent purchaser for value. She herself admitted that she had been informed by Powell of the condition of the title, and that if she bought the land she would buy a lawsuit, and the court erred in not so finding.
Alf. F. Rector for respondents.
(1) Under the law and the evidence, it was proper to deny the petition of the appellants for review of the judgment. Mattie E. Witcher became the owner in fee simple under the foreclosure sale held February 3, 1912, and did not by said purchase become trustee for herself and the remaindermen. Becker v. Becker, 254 Mo. 680, 682. The life tenant, had the right to purchase said land at the foreclosure sale in order to protect her life estate in the land, there being no evidence whatever that she procured and caused the land to be sold by the holder of the mortgage, or in any way took any advantage of the remaindermen. (2) If for any reason it could be held that Mattie E. Witcher became the trustee of the remaindermen by reason of her purchase of the land (which the respondent deny) the appellants would not be entitled to the relief sought by reason of the long delay and the unreasonable time permitted to elapse between the date of the sale and the filing of the petition in this cause. (3) Tennessee Sellers, who purchased the land from Mrs. Witcher after the decree had been rendered by the circuit court, without any knowledge of the claim of the appellants to said land, is entitled to hold said land, free and clear of any claim by the appellants. (4) The value of the land, as shown by respondent's evidence, was about $ 50 per acre at the date of the sale. Mrs. Witcher's life estate, under the mortality tables, was worth and valued at more than a thousand dollars. The deed of trust due Bryant, the principal of which was the debt of the remaindermen, was due and payable. The appellants paid no attention to the matter. At that time the interests of the remaindermen in the property was very little. Encumbered both by the life estate and the Bryant deed of trust, the land was practically abandoned by the appellants until land values advanced and until after Mrs. Witcher sold the land to Tennessee Sellers. Under these circumstances, the petition of the plaintiff for review was properly denied.
-- The judgment appealed from was rendered after a trial of issues made by answers filed to a bill brought to review a proceeding and judgment upon notice by publication. A thirty-eight-acre tract of Saline County land is involved.
Ephriam Witcher had owned the land, and in 1906 he and his wife executed a deed of trust thereon to secure a loan of $ 700. February 10, 1911, Ephriam died. By his will he gave his wife, Mattie E. Witcher, a life estate in the tract, with remainder to his eight children. At his death there was some unpaid interest on the note secured by the deed of trust. The interest continued to accumulate for another year, when a sale was had under the deed of trust. Mattie E. Witcher, the life tenant, bought at the sale. Her bid ($ 812) was equal to the note and interest and sale expense. There were unpaid debts of the estate amounting to $ 188. Mrs. Witcher arranged with Bryant, who had held the $ 700 note, for a loan of $ 1,000, and executed a deed of trust, dated on the day of the trustee's sale, February 3, 1912, to secure its payment. The sum in excess of the $ 700 note, interest and expenses of sale, was used to discharge debts of Witcher's estate which was in course of administration. Mrs. Witcher was in possession of the land subsequent to the death of her husband in 1911. In 1917 she purchased the interests of three of the heirs, i. e. Dean McKnight, Richard Witcher and Bernice Witcher. February 6, 1918, in a suit to quiet title, begun in 1917, the judgment was rendered of which review is sought in this proceeding. That suit was brought by Mrs. Mattie E. Witcher, and in her petition she alleges, among other things, that she owned the land in fee. She sought and secured judgment quieting, in her, full title to the land in question as against the heirs who bring the bill of review. That bill alleges and the answers admit most of the facts stated. It also charges that Mrs. Witcher procured Bryant to make the sale with the intent and for the purpose of excluding the heirs whose interests Mrs. Witcher had not bought. There is evidence pro and con upon this issue. The plaintiffs filed answers, it seems, to the bill of review, and without formalities the issues thereby made were tried and determined. Tennessee Sellers bought the land from Mrs. Witcher. It is charged she had actual notice of all the facts and there is evidence tending to prove this to be true.
I. The statute pertaining to bills of review (Secs. 1532, 1535, R. S. 1919) was not followed in every respect (Osage Investment Co. v. Sigrist, 298 Mo. 139, 250 S.W. 39), but answers were filed and the issues were made and tried upon these and the bill of review. There seems to be no reason for saying that when the parties follow this course the judgment which ensues is assailable because there was technical failure to set aside the original judgment and make up the same issues on the old petition and answers by the petitioners for review. [Chilton v. Cady and Cady v. Randell, 298 Mo. 101, 250 S.W. 403.]
II. The general rule is that the purchase by the life tenant at a sale under a deed of trust on the property is "deemed to have been made for the benefit of the remaindermen if they contribute their portion of the purchase money in a reasonable time." [Peak v. Peak, 228 Mo. 536, 128 S.W. 981, and cases cited.] In the same case it was said the life tenant was in even a weaker position than a co-tenant who makes a like purchase, since he not only bears a quasi-trustee relation to the remaindermen "but also has the exclusive possession, care, control and enjoyment of the entire estate, which in large measure excludes the remainderman from protecting his own rights and interest in and to the land; whereas in a case between co-tenants all of them stand upon an equal footing." In Allen v. DeGroodt, 98 Mo. 159, it was held that a "life tenant occupied such relations towards the remaindermen that he could not deal to his own advantage, and to their disadvantage, by buying in the land under the trust deed, and thereby defeat their title and acquire an independent title of his own." The same rule was approved on a second appeal. It is the general rule. See note to Peak v. Peak, supra, 137 Am. St. 651 et seq.; 17 R. C. L. pp. 640, 641, sec. 30; 21 C. J. 942. The interest which had accrued at the time of the death of Ephriam Witcher is to be treated as part of the principal debt in so far as the relations of the life tenant to the remaindermen are concerned. The interest subsequently accruing was the obligation of the life tenant. She was in full possession. Appellants were non-residents. If the estate was to be converted into money, a part of the principal commensurate with her expectancy would have been chargeable to her. The payment of the debts of the estate protected the land in suit from sale for them.
III. Respondents rely upon the decision in Becker v Becker, 254 Mo. 668 at 680, 163 S.W. 865. In that case one of several co-tenants had bought in the common property at a sale under a deed of trust executed by the one through whom the co-tenants derived title. The opinion apparently argues that the purchase vested title in the purchasing co-tenant to the exclusion of all right of other co-tenants to come in by paying their shares in a reasonable time. The decision is not specifically put upon this ground, and it is stated that special circumstances set out lead to the same result. This Division has approved conflicting interpretations of this decision. [Gearhart v. Gearhart, 213 S.W. l. c. 33, 6 A. L. R. 291, and note; Wenzel v. O'Neal, 222 S.W. l. c. 394, 395.] Other cases upon the question are collected in a note to Jackson...
To continue reading
Request your trial