Jelly v. Lamar

LAMM, J. Certain defendants, the children and widow of John D. Noble (the latter dying intestate pending this suit), appealed from a decree in equitable partition. Defendants Albert and Charles Lamar and plaintiff are children of Hania Lamar, deceased, and William Lamar. Plaintiff and defendants Albert and Charles are on the same side of this controversy, hence the last two do not appeal. Fetching a small compass about it, the controversy is this: Hiram J. Hurst died about 1880, in — 49 — testate, seized of eighty acres of land, leaving his widow, Henrietta, and three married daughters, Launrana Noble, Sarah E. Blackstun and Hania Lamar. Launrana was the wife and is now the widow of said John D. Noble. This land was encumbered with a mortgage and there were several judgments against Hiram J. Hurst. We infer all were liens on the land. Presently (all the husbands taking part, including Noble) there was a domestic partition between Henrietta and her three married daughters. By that partition Hania Lamar was allotted nineteen acres of the eighty and this suit relates to her parcel. Presently they made conveyances to each other in consummation of this domestic partition. The partition deed instead of running to Hania Lamar purported to convey her allotment to “William Lamar and Hania Lamar his wife.” There are record indications that the partition deeds to the other married daughters were also conveyances of this soft. The Lamars took possession of Hania’s parcel; and, in 1902 or 1903, Hania Lamar died intestate, leaving her husband William surviving and several young children, to-wit, the plaintiff Nora (now married to Jelly) and the defendants Albert and Charles Lamar. In 1904 William, the surviving husband of Hania Lamar, assumed' to convey the land in question to his brother-in-law, John D. Noble, by a general warranty deed. Since that time and up to his death, after the institution of this suit, Noble held possession. Since his death his children and widow hold possession. The husband of Hania Lamar, said William, is yet alive. The Nobles contend, among other things, that their ancestor, John D., got title in fee by said conveyance of William Lamar and that they take by inheritance from him. Contra, the Lamar children claim that nothing but a life estate passed by that deed. Such is one of the issues. — 50 — The decree was out and out in favor of the Lamar children and took no note of an' encumbrance, presently mentioned. The land was partitioned between the three, share and share alike, and was ordered sold subject, however, to the life estate of William Lamar as tenant by the curtesy. The court further decreed that said life estate passed to John D. Noble and now rests vested in his widow and children. ‘ Under the facts of this record the partition deed vested no title at all in William Lamar. Such deed confers no new title. In domestic partition, the rule is that each heir takes (not by the deed, but) by inheritance from the ancestor. Such deed merely severs and adjusts the right to possession. It confers no new or additional estate. Its effect is that henceforward each heir holds his share in severalty — the title being already in him by descent cast. Such was the common law, and such- is the doctrine in this jurisdiction. Partition deeds are read in the light of the' surrounding circumstances and the purpose in view and all taking part therein take -with notice that no heir loses or gains any title. [Whitsett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127; Starr v. Bartz, 219 Mo. 47.] It results that an entirety of estate was not created by the partition deed, and that William did not take as survivor on the death of his wife. He was, as to that parcel, a tenant by the curtesy on his wife’s death, because of having children born alive by the marriage with Hania, and that life estate he conveyed by his deed to Noble. It is argued, however, that he acquired an interest by the partition deed, became joint owner with his wife and thereby took as survivor on her death be-, cause of the following facts: When the domestic partition was made the judgment and mortgage debts against the land were divided into four equal parts. Thereat the judgment creditor, as I gather, loaned — 51 — the Lamars enough to pay Hania’s share of the old mortgage, taking a new mortgage covering that advance plus her share of said subsisting judgment debts — the sum aggregating, say, $242. This last mortgage was paid off by Noble out of the proceeds of the sale to him in order to clear the land for that transaction. Eecurring to that sale, it may, for our purposes, be conceded that Lamar in good faith-thought he was selling and Noble in good faith thought he was buying the whole title. Whether William and Hania could have contracted together on an adequate consideration that they would become tenants by the entirety, and whether (if they had so contracted) the partition deed, ex proprio vigore, would have made them such tenants, we need not, hence do not, decide. It is sufficient for us to hold, as we do, that we find no clear and cogent evidence that William Lamar and Hania his wife contracted between each other that William should personally assume the payment of this debt as a consideration for the partition deed purporting to convey title to them jointly. How could it have that effect, when it neither diminished nor enlarged Hania’s title by inheritance, but related solely to a severance of possession and made her the owner in severalty? Nor are we of opinion that the payment of that mortgage out of the proceeds of the sale of the land established, or tended to establish, the fact that William Lamar paid a consideration creating him a joint tenant with his wife. Whatever effect it had, it did' not relate back to the partition deed and create a tenancy by the entirety. If. the foregoing were the whole' case, we would affirm the judgment on the views already expressed. But it is not the whole case. As said, Hania Lamar acquired title subject to the liens of a mortgage and of certain judgments. As said, the plan of the domestic partition was to prorate the amount of the several lien debts among the heirs of Hiram J. Hurst. That — 52 — plan was consummated, and Hania’s share was $242. That the amount took the form of a mortgage in favor of the judgment creditor who advanced enough more to take up her share of the old mortgage, goes for nothing in equity. It changed the form of the thing, but not the substance. Now, equity looks to substance, not form. ITania took title to her parcel, cum onere, the burden with the benefit, as heir of her father and the new mortgage stands for and represents her burden thus assumed. It would be highly inequitable to let her children have the land clear of such burden, when as here, Noble in good faith removed the burden by paying the mortgage debt. Noble was no volunteer or intermeddler. When he, to acquire the whole title, furnished the money to pay that mortgage in 1904, he became, on the whole title failing, entitled to subrogation. The mortgage was due and its payment saved the estate of the remaindermen. Noble’s heirs and widow stand in his shoes; hence the chancellor, in clearing and correcting the title in favor of the Lamar children, and awarding partition, should have made Noble’s heirs and widow whole in that regard, under the cardinal maxim -. they who seek equity must do equity. “Equity does nothing grudgingly or by halves. Its out-stretched arm corrects, but with loving kindness, withal.” [Stitt v. Stitt, 205 Mo. l. c. 165.] When equity lays hold of a subject-matter it does not lift its hand until plenary and perfect justice is done as near as may be under the issues. Appellants by their answer plead all the facts and ask relief. The proof sustained their view of it. The decree, nisi, did equity as far as it went, but it stopped short of doing full and rounded equity in the above regard. Mr. Noble when he bought from Lamar dealt with the land as full owner and greatly improved it. At best the case is a hard one for his estate. To allow the Lamar children to take the benefit of a title cleared of the encumbrance, would be lame and halting equi — 53 — ty. They must make restitution out of the proceeds of the court’s sale. Accordingly the decree is reversed and the cause remanded with directions to enter a new decree awarding partition to the Lamar children, ordering a sale, and making the same disposition of the life estate as in the former decree, hut in addition the chancellor must compute the interest at six per cent on $242 from the date in 1904 that the mortgage was paid and adjudge payment to the Nobles of the amount of principal and interest so found, out of the proceeds of the partition sale. Graves, P. J., and Woodson, J., concur; Valliant, J., absent.