Wood v. Kice

• Decision Date: 24 February 1891
• Parties: Wood v. Kice et al., Appellants
• Court: Missouri Supreme Court

15 S.W. 623

103 Mo. 329

Wood v. Kice et al., Appellants

Supreme Court of Missouri, Second Division

February 24, 1891

Appeal from Ray Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

G. W Lavelock, T. N. Lavelock and C. T. Garner, Sr., for appellants.

(1) The petition of plaintiff was defective, and the demurrer of defendants thereto should have been sustained. Tapley v Matson, 38 Mo. 489; Headlee v. Cloud, 51 Mo 301. (2) The defendants were not estopped from pleading the want of power to execute the mortgage in question, as a defense to plaintiff's foreclosure suit. Tiedeman on Real Property, sec. 728, p. 553; Dougal v. Fryer, 3 Mo. 40; Collins v. Clamorgan, 5 Mo. 272; Bales v. Perry, 51 Mo. 450; Wolff v. Berning, 74 Mo. 96. (3) The power to sell the premises charged with the trust, for reinvestment, did not confer the authority to mortgage it. 4 Kent's Com. [12 Ed.] sec. 331, p. 342; 2 Washburn on Real Property [4 Ed.] p. 655, side p. 318; Martindale on Conveyancing, sec. 154, pp. 116-7; Tiedeman on Real Property, sec. 567, p. 449; 1 Jones on Mortgages, sec. 129; Bloomer v. Waldron, 3 Hill, 361; Ferry v. Laible, 31 N.J.Eq. 567, 575; Hannah v. Carnahan, 32 N.W. 835; Price v. Courtney, 87 Mo. 387, and cases cited.

Ball & Hamilton for respondent.

(1) The petition of plaintiff was not defective and the demurrer of defendants thereto was properly overruled by the court. (2) The defendants were estopped from pleading the want of power to execute the mortgage in question by the acts of the parties thereto. Hereford v. Bank, 53 Mo. 330; Pelkinton v. Ins. Co., 55 Mo. 172; Guffey v. O'Riley, 88 Mo. 429; Savings Ass'n v. Kehlor, 7 Mo.App. 163; Turner v. Timberlake, 53 Mo. 371; Boyer v. Allen, 76 Mo. 498; Hardy v. Clarkson, 87 Mo. 171; Praitin v. Johnston, 23 Mo.App. 96; Bigelow on Estoppel, 492. (3) The power conferred in a trust to sell premises for reinvestment also confers power and authority to mortgage the same as the use of the power in this case was a conditional sale. Turner v. Timberlake, 53 Mo. 371; Boyer v. Allen, 76 Mo. 498; Hardy v. Clarkson, 87 Mo. 171; Nichols v. Eaton, 91 U.S. 716; Lampert v. Haydel, 20 Mo.App. 616; Bigelow on Estoppel, p. 510; Harbison v. James, 90 Mo. 411.

OPINION

Thomas, J.

The questions to be determined on this appeal grow out of the construction to be given to the following deed:

"This deed, made and entered into, by and between John C. Cates and Rutha Cates, his wife, of the first part, and Joseph S. Hughes, trustee, of the second part, and Joella Kice and the heirs of her body, of the third part, all of the county of Ray, in the state of Missouri, witnesseth: That the said party of the first part, for and in consideration of the sum of $ 700, to them in hand paid, by said party of the second part, as trustee as aforesaid, the receipt whereof is hereby acknowledged, have given, granted, bargained and sold to said party of the second part, as trustee as aforesaid, for the sole and exclusive use and benefit of said party of the third part, and to the heirs of her body, and to his successors, heirs and assigns forever, the following real estate situate in the southern addition to the city of Richmond, in the county of Ray, in the state of Missouri, and known and designated on the plat of said southern addition aforesaid, as lots numbered 1 and 2, to have and to hold the same, with the appurtenances thereto belonging unto him, the said party of the second part, as trustee as aforesaid, for the uses, trusts and purposes aforesaid, and to his successors, heirs and assigns forever. The said party of the first part hereby covenanting and agreeing to and with the said party of the second part, as trustee as aforesaid, the title to said real estate, and any part thereof against the claim or claims of all persons whomsoever, they will warrant and forever defend firmly by these presents, and it is further understood and agreed, that the said party of the second part, as trustee as aforesaid, shall, whenever required by the said party of the third part, in writing proceed to sell said real estate upon such terms as he may think proper, and shall receive the proceeds of such sale, and hold the same in trust, and in like manner, and in like effect, as said real estate, and shall whenever required, in writing, by said party of the third part, reinvest the proceeds of such sale, in such manner, and in such property, as may be directed by said party of the third part, and in like manner, and with like effect, uses and purposes, shall hold such property or effects, in which such reinvestment shall be made, as herein provided; and it is further expressly agreed, and this conveyance is made upon condition that in the event the said Joella Kice, party of the third part, shall depart this life without children or heirs of her body, then and in such event thence in such case the property herein aforesaid shall invest in, and become the absolute property of, her present husband, Robert B. Kice, if he shall survive her death, and then be living and in being the said party of the second part, hereby covenants that he will faithfully discharge and perform the duties and obligations resting upon him as such trustee as aforesaid, in the a foregoing deed. In testimony whereof the said parties of the first and second parts have hereunto subscribed their names and affixed their seals, on this, the third day of June, A. D. 1865.

"[Seal.]

John C. Cates,

"[Seal.]

Rutha C. Cates."

On the seventeenth day of May, 1871, Joella Kice, Robert B. Kice and Joseph S. Hughes, trustee of Joella Kice, executed and delivered to Julia L. Temple a promissory note for $ 600, and, to secure this sum, they executed and delivered to said Temple a mortgage upon the property described in the foregoing deed, they signing and acknowledging the mortgage in proper form, by the names given above. On the eighteenth day of June, 1880, the said Julia L. Temple assigned and delivered said note and mortgage to the plaintiff, and he brought this action to foreclose the mortgage.

Defendants filed a demurrer to the petition, which, being overruled, they filed answers and set up as a defense, that the parties had no power to give the mortgage and that no interest passed by it. The case was tried by the court and judgment was rendered granting plaintiff the relief prayed for in his petition and defendants appealed to this court.

We will not notice the objections to the petition presented by the demurrer, for, if valid at all, they were waived by answering over and going to trial on the merits.

It is contended by appellants, that the deed by which they held the property did not authorize and empower them to mortgage it; that the only power they had under the deed was to sell the property and reinvest the proceeds of the sale in other property to be held by the trustee on the same conditions. On the other hand appellee insists that these parties had power to mortgage the property in fee. The deed of Cates and wife conveyed this property to Joseph S. Hughes to hold it in trust for the sole and separate use of Joella Kice and the heirs of her body, with remainder in fee simple to her husband, Robert B. Kice, if he should survive her, and she should die without leaving heirs of her body. By the terms of the deed, Joella Kice took what, under the common law and equity jurisprudence, would have been an equitable estate in fee tail. 2 Wash. Real Prop. [5 Ed.] 530; Farrar v. Christy's Adm'rs, 24 Mo. 453, And being such it is cut down to a life-estate in her, by section 8836, Revised Statutes of 1889. Farrar v. Christy's Adm'rs, supra; Harbison v. Swan, 58 Mo. 147; Thompson v. Craig, 64 Mo. 312.

So we find that the effect of this conveyance is to give Joella a life-estate to her sole and separate use, and to the heirs of her body a fee, and if she die without heirs of her body, to her husband in fee, if he survive her. Whatever estate the husband took under this deed is by its terms freed from the operation of the trust, when it shall become vested in law and in possession.

Having determined the extent of the estate held by appellants, let us next inquire whether they were authorized by the said deed to mortgage any estate in the property. We hold that they had power to mortgage the life-estate of Joella, and the contingent estate of the husband. If Joella should die without heirs of her body, leaving her husband surviving her, the grantee under a foreclosure of the mortgage in this case will take the fee that would, for his execution of this mortgage and foreclosure, have vested in him. R. S. 1889, sec. 8835; 2 Wash. Real Prop. [5 Ed.] 611.

We will now give our reasons for holding that these parties had power to convey and did convey the life-estate of Joella and the estate of her husband, in the property in dispute.

1. The deed of Cates and wife vests in Hughes title to the property described therein, to be held by him in trust for the purposes before specified. It then contains this provision "And it is further understood and agreed, that the said party of the second part, as trustee as aforesaid, shall whenever required by the party of the third part, in writing, proceed to sell said real estate upon such terms as he may think proper, and receive the proceeds of such sale, and hold the same in trust in like manner and in like effect as said real estate, and, whenever required, in writing, by the said party of the third part, reinvest the proceeds of such sale in such manner and in such property as may be directed by said party of the third part, and in like manner and with like effect, uses and purposes shall hold such property or effects in which such reinvestment shall be made, as herein provided." The contention is that the...