Witcher v. Hanley

*699 JAMES T. BLAIR, J. 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 *700 upon notice by publication. A thirty-eight-acre tract of Saline County land is involved. Ephriam Witcher bad owned the land, and in 1906 be and Ms 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. *701 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), 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.] 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. l. c. 552, and cases cited.] In the same case it was said the life tenant was . . .,,. . m even a weaker position than a co-tenant who makes a like purchase, since he not only bears a gnasi-trustfee 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. l. c. 161, 162, 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. [Allen v. *702 DeGroodt, 105 Mo. l. c. 451, 452. See also Cockrill v. Hutchinson, 135 Mo. l. c. 73, 74, and cases cited.] It is the general rule. See note to Peak v. Peak, supra, 137 Am. St. l. c. 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. l. c. 680-682. 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. (Mo.) l. c. 33, 6 A. L. R. 291, and note; Wenzel v. O’Neal, 222 S. W. (Mo.) l. c. 394, 395.]. Other cases upon the question are collected in a note to Jackson v. Baird, 148 N. C. 29, 19 L. R. A. (N. S.) 591. The case of Dudgeon v. Hackley, 182 S. W. (Mo.) 1004, involves a different state of facts. Something of the principles applicable to a life tenant in possession may be found in Fountain v. Starbuck, 209 S. W. (Mo.) 900, and Peterson v. Larson, 285 Mo. 119. In Peterson v. Larson, the court adverted to the principle that it is the duty of the life tenant to *703 preserve the estate for the remaindermen in the condition in which he received it. He must pay the taxes accruing after his tenancy begins, make ordinary repairs and keep down interest on encumbrances. His giiasi-trusteeship imposes upon him an enforceable legal duty to do-these things, and his failure to perform his duty falls under an extension of the rule which prohibits waste. [Robertson v. Collier, 1 Hill Ch. 370; Damm v. Damm, 109 Mich. 619; Magness v. Harris, 80 Ark. 583; Jones v. Sherrard, 22 N. C. 179; Fuller v. Devolld, 144 Mo. App. l. c. 95, 96, and cases cited.] This is not the situation of co-tenants. Unless equities intervene, one co-tenant is under ho legal obligation to the others to pay taxes and interest. If he does so, the relationship ordinarily entitles him to contribution. If he purchases an outstanding title, the rule which lets in the others upon payment of their proportionate shares does not rest upon any failure of legal duty before the purchase but upon the <^fusi-trust relation which, in a sense, is a part of the estate and which equity implies from the community of interest. This distinction renders inapplicable to this case the rule in Becker v. Becker and like cases. IY. The next question is whether the delay of appellants bars their right to pay their due proportion and assert their claim. The sale was made in 1912. Appellants were non-residents and it does not appear they had actual knowledge of the sale. The life tenant continued in possession. No improvement to the land is shown. Sometime in 1917 the life tenant commenced the suit to quiet title, and notice by publication was given appellants. It does not directly appear that actual notice reached them. Judgment in that suit was rendered in February, 1918. The bill of review was filed in November, 1918. The time falls far short of the Statute of Limitations, and, so far as the life tenaait is concerned, there is no evidence tending to prove estoppel. The lapse of time is all that is shown. The relation was such upon the purchase by the life tenant that the duty to pay taxes and *704 interest was the same as before, if the remaindermen chose to assert their rights in due time. The life tenant was in no way misled to do any act to her detriment, so far as the record shows. The suit she brought discloses a knowledge that her claim was opposed to rights the remaindermen might assert. In Cockrill v. Hutchinson, 135 Mo. l. c. 75, 76, there was a delay of fourteen and one-half years by adults, during which time the land was “greatly improved’’’ and its value “largely increased” by the life tenant. That is not the situation in this case. Here, further, the money used by the life tenant to discharge the encumbrance was raised on the land involved. It was not paid out of the means of the life tenant. She was entitled to no re-imbursement for money actually expended, since she had expended none. The remaindermen owed her nothing, and the result of her purchase was merely to leave their interests to their respective shares subject to the part of the encumbrance chargeable to them, as before. On the face of the deeds their interests were made subject also to the interest which accrued after Mr. Witcher’s death and prior to the sale. — an obligation of the life tenant alone. An offer to pay their proportionate shares was hardly to be expected while the whole was secured on the land. At any rate, this situation is to be considered in determining whether there was laches in offering to come in. There was no laches barring appellants. Each case depends upon its own peculiar facts. [Stevens v. Reynolds, 143 Ind. l. c. 483; Cedar Canyon Con. Min. Co. v. Yarwood, 27 Wash. l. c. 282, 283, 284, and cases cited; Wilson v. Linder, 21 Idaho, l. c. 584, et seq.; Harrison v. Cole, 50 Colo. l. c. 478; Barksdale v. Learnard, 112 Miss. 861; Dwight v. Waldron, 96 Wash. l. c. 160, 161; Melms v. Pabst Brewing Co., 93 Wis. l. c. 148, 149; Stroh v. O’Hearn, 176 Mich. l. c. 179, 180; Stianson v. Stianson, 40 S. D. 322.] In Jefferson v. Bangs, 197 N. Y. l. c. 42, et seq., is a discussion of the effect of the inability of the remaindermen effectually to sue during the life tenancy. The court *705 quotes with approval a holding (Anderson v. Northrop, 30 Fla. 612) that no laches is imputable to reversioners in a contest between them and the life tenant during the life tenancy. A like decision (Sedgwick v. Taylor, 84 Va. 820) is cited. Whether this be the rule or whether the rule applied between co-tenants is applicable in cases between life tenants and remaindermen, makes no difference in this case. There is a mere lapse of time, short of the statutory period, and no special circumstances of any sort appear. There is no evidence of delay for speculative purposes, nor of anything unfair to the life tenant. ■ So far as concerns Mrs. Witcher, the claim was not barred at the time the bill of review was brought. Y. The respondent who purchased from Mrs. Witch-er immediately after the decree was rendered in the suit to quiet title, bought with knowledge. The will, deed and decree through which she was compelled to deraign title constituted notice. [Picot v. Page, 26 Mo.l. c. 415.] In addition, the evidence preponderales that she was in fact told of the probable claim of the heirs. The law advised her of appellants’ right to file the bill of review and she bought subject to that right. Whether she is entitled to a lien upon the land for the amount she paid to discharge the encumbrance and entitled to a cancellation of the $1,000 note still outstanding, are questions which are not presented by the present record. [Kellar v. Fenske, 123 Wis. l. c. 441, 442.] The judgment is reversed and the cause remanded. All concur.