Jacobsmeyer v. Jacobsmeyer

BOND, J. The contract for support upon which this suit is based, obligates the.two sons, in consideration of the grant from their parents, to support and comfort their parents during their future lives by rendering them shelter, clothing, food and ■dutiful behavior. It is also stipulated that failure to render these [109] services or harsh and undutiful treatment, causing the parents to leave the home or homes of the two sons, should obligate the latter to pay five hundred dollars to each of the parents, or'the survivor of them. The contract further provided that its benefits should be lost to the parents if they, or the survivor of them, “without just cause or excuse” should leave the home or house provided for them by their sons. The learned circuit judge found, and in this he was borne out by the preponderance of the evidence, that nothing was done by the .surviving parent,. Charles Jacobsmeyer, Sr., to absolve either of his sons from the full performance of the obligations which they had assumed in the contract with their parents. We must, therefore, overrule the point made by appellant that Eritz Jacobsmeyer was. released from his obligation to contribute to the support of his father from 1890 until the date of this decree, by the mere fact that during all of said period his father had resided constantly at the home of Charles Jacobsmeyer, Jr., where he resided at the time he and his wife conveyed their property to their children, and had declined the invitation of said Fritz to reside with him. The contract in question did not impose on Charles Jaeobsmeyer, Sr., the duty of changing his residence in order to realize its benefits. It was the plain duty of the two sons to contribute fully to his support and comfort, whether he lived with the one or the other. At the time of this trial, Charles Jacobsmeyer, Sr., was eighty-seven years of age. He had lost one of his arms since the grant of his estate to his children. The record shows he was comfortably and tenderly cared for by the one with whom he continued to reside. It also shows that the other had no home to which the father could have been taken until 1892, and, even thereafter, that it afforded scant accommodation, since Eritz Jacobsmeyer married in 1893 and his-house then consisted of only two rooms and an up-stairs or loft. [110] Nor do we gather from the record that the invitation to his father to live with .him was prompted by filial instinct or affection, if, indeed, it was not made the few times (about six), which defendant Eritz Jacobsmeyer testified, to furnish a pretext or excuse for his non-compliance with the obligations of his contract and natural duty. It follows that Charles Jacobsmeyer, Jr., was entitled to contribution from his brother, Eritz Jacobsmeyer, as co-tenant of the land conveyed to them by their parents, for the expenditures solely made by him in discharging the- lien created upon said estate by their joint act and in furnishing the consideration for which it was conveyed. It was admitted that twelve dollars per month was a reasonable charge for the support and sustenance of his father while at the home of Charles Jacobsmeyer, Jr. Pie was, therefore, entitled to a decree for one-half of the sum which would be due at this rate for the number of months for which he performed the contracted duties of the two towards their father. II. The only remaining question is the correctness of the decree of the court in subordinating this right of contribution to a lien upon the land in the hands of defendant Brehe, to the claim of the latter as grantee of Massmann for a priority to the extent of a payment made by Massmann in satisfaction of a note and deed of trust given by Eritz Jacobsmeyer upon the tract allotted to him. Both the deed of the parents to their sons, and the counter-contract by the latter creating a lien on the land conveyed to them to secure its consideration, were duly recorded. The circumstances indubitably point to the conclusion thaf the sons assumed the payment of the mortgage based upon the tract of land conveyed to them by their father. After a division of the land between themselves, they gave their separate notes for one-half of the amount of the previous mortgage then due, securing these notes by separate deeds of trust on the [111] respective portions of the land allotted to them in severalty. Thereupon, the beneficiary of the original mortgage satisfied the mortgage itself by entry on the margin of the record. The separate note and mortgage given hy Eritz Jaeobsmeyer as his part of these transactions was subsequently assumed by his grantee, Massmann, as a part of the purchase money under the quitclaim deed to him from Eritz Jaeobsmeyer. Massmann subsequently conveyed by general warranty to defendant Henry Brehe. Hnder this state of facts, neither Massmann nor his assignee Brehe, could become subrogated to the rights of the mortgage which was paid in full by Massmann, and who thereupon had also executed a release of his mortgage and a surrender of the note it was given to secure. In speaking of the principle applicable to this state of facts, it is said by our Supreme Court: “Payment, therefore, by a grantee who has assumed the entire mortgage debt completely extinguishes the mortgage; he can not be subrogated to the rights of the mortgagee and keep the mortgage alive for any purpose.” Nelson v. Brown, 140 Mo. loc. cit. 589. As these several mortgages preceding the title acquired by defendant Brehe were paid off in each instance by the person or persons who had assumed their payment, none of them were kept alive thereafter, and hence, could not become the basis of a subrogation in favor of defendant Brehe. Moreover, defendant Brehe, although the grantee under a deed purporting to convey in fee, could in this instance acquire no higher title than his grantor, Massmann, since the contract, evidencing the lien vested in the parents to secure the performance of the obligations of their grantees, was recorded, and hence, being a conveyance of the remote grantor of Brehe, and one properly of record, charged him with notice of its existence and contents and subjected his rights as a purchaser thereto. On this subject our Supreme Court has said: “A purchaser of land is charged with constructive notice of everything contained or [112] recited in the recorded deeds which lie in and constitute the chain of title under which he holds.” McDonald v. Quick, 139 Mo. loc. cit. 498, and cases cited. That the contract of the sons, expressive of the consideration of the deed to them and creating a lien on the land acquired by them to secure the performance of the consideration, is one proper for record, is apparent from the language of the statute authorizing the recording of conveyances of land “or any interest therein,” “or when any real estate may be affected.” R. S. 1899, sec. 923-924. The decree of the learned trial judge in this cause, not being in conformity to the foregoing views, it is hereby reversed and the cause remanded with directions to enter a decree in accordance with this opinion. All concur.