Summary
In Martin v. Lewis, 244 S.W.2d 87 (Mo. 1951), the court determined that where a wife joins with her husband in the execution of a deed of trust, it becomes a valid encumbrance upon the homestead property.
Summary of this case from In re StanleyOpinion
No. 42162.
November 12, 1951. As Modified On Denial of Rehearing December. 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, WALDO C. MAYFIELD, J.
James D. Dockery, St. Louis, for appellant.
Flynn Parker, Francis C. Flynn and Norman C. Parker, all of St. Louis, for respondents.
This is an action to determine and quiet title to real estate situated in the City of St. Louis. The trial court found the issues in favor of defendants and that defendant Effie F. T. Lewis was the fee simple owner. Plaintiff's petition was dismissed with prejudice, and he appeals.
The real estate in controversy and particularly described in the petition is a lot having a street frontage of 25 feet and a depth of 120 feet. At all times herein mentioned it had a two-story brick residence thereon.
The petition alleged plaintiff to be the owner of the property as the sole heir of Charles Holliday; that defendant Effie F. T. Lewis wrongfully claimed title thereto under a trustee's deed executed pursuant to a pretended sale and foreclosure of a deed of trust executed by Charles Holliday and his wife, Jennie, securing the payment of certain promissory notes; that said notes had matured more than ten years' prior to the foreclosure proceedings and were barred by limitation under the provisions of § 516.110, RSMo 1949; that, consequently, foreclosure of the deed of trust securing the payment thereof was barred under the provisions of § 516.150, RSMo 1949; that Charles Holliday and his wife, Jennie, occupied the premises as their home until the death of Charles, and thereafter Jennie occupied the property as her home until her death on October 27, 1945; and that defendant Thomas Lewis was the husband of defendant Effie F. T. Lewis and was joined in the suit solely for that reason.
Defendants' answer admitted that defendants Effie F.T. Lewis claimed title under said trustee's deed executed pursuant to foreclosure of the deed of trust described in the petition and that Thomas Lewis was her husband; and denied the other allegations therein. The answer affirmatively pleaded that any claim of title plaintiff had to said real estate was barred by limitation under § 516.010, RSMo, which provides that no action for recovery of lands shall be commenced, had or maintained unless it appear that plaintiff, his ancestor or predecessor in title, was seized or possessed of the land in question within ten years prior to the commencement of the action.
Plaintiff's reply denied all matters affirmatively pleaded in defendants' answer.
The case was tried to the court and we shall review the case upon the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Section 510.310, par. 4, RSMo 1949; Cosentino v. Heffelfinger, 360 Mo. 535, 541, 229 S.W.2d 546, 549.
Charles Holliday, who died, intestate, is the common source of title. There was no administration of his estate. Plaintiff is the sole heir of Charles Holliday. He is the son of a deceased daughter of Charles Holliday by his first wife. Sometime after the death of the first wife, Charles Holliday married a woman whose first name was Jennie. They had no children. Plaintiff was born in 1898. He never was a resident of St. Louis and prior to 1947 knew nothing of this property or of any right he may have had to it.
Charles Holliday, the common source of title, acquired the real estate in 1914. It is stipulated that Charles and his second wife, Jennie, "lived in" the residence thereon at the time of his death on June 2, 1916, and that thereafter Mrs. Holliday "lived in" it until her death on October 21, 1945.
On April 12, 1915, Charles Holliday and Jennie Holliday executed a deed of trust to Albert T. Terry, as trustee, to secure the payment of seven promissory notes of that date, payable to the order of Manly W. Mann. The evidence does not reveal whether these notes were signed by Jennie Holliday. They were not produced at the trial. It was agreed that both parties had made diligent search for them. There is no evidence in the record as to whether any payments were ever made on the notes. According to recitals in the deed of trust, two of said notes were for $50 each, respectively due and payable in six and twelve months after date; four were for semi-annual interest, respectively due and payable six, twelve, eighteen and twenty-four months after date; and the seventh was for $800, due and payable April 12, 1917. Thus all of said notes, on their face, had matured on April 12, 1917.
On November 2, 1928, more than eleven years after the maturity of all of said notes, foreclosure proceedings were begun under the deed of trust by the trustee therein named publishing the first notice of sale. On November 27, 1928, the sale was held, at which defendant Effie F. T. Lewis bought the property for $648, which amount she, through an agent there appearing for her, paid over to the trustee, in return for which the trustee's deed was executed and delivered to her. There is no question as to the regularity and sufficiency of the foreclosure proceedings or the trustee's deed.
Defendants' evidence was as follows:
George L. Ganss, a realtor, testified: He knew and had handled business for Effie F. T. Lewis prior to the foreclosure proceedings in 1928. Very shortly before the foreclosure, she brought Jennie Holliday day to Ganss' office for the purpose of refinancing the property and saving it for Mrs. Holliday. Ganss examined the property, found it in poor condition, and refused to make a loan on it. Thereafter, at the insurance of Mrs. Lewis, he attended the foreclosure sale and purchased it in behalf of Mrs. Lewis. She was not the owner of the notes.
It was stipulated and agreed between the parties hereto that from January 1, 1935, until the institution of this suit Ganss had attended to collection of rentals, payment of taxes and all the making of repairs for and in behalf of Mrs. Lewis. By agreement, an itemized list of his receipts and disbursements was introduced in evidence as a correct statement of his accounts and activities as her agent. This statement showed that Ganss had attended to renting the property, collecting the rents, paying the taxes and insurance and making and paying for repairs; and that he had attended to the institution of several suits brought by him in behalf of Mrs. Lewis against tenants for the enforcement of rental contracts.
Defendant Effie F. T. Lewis testified that ever since she acquired the deed to the property she had claimed it as her own and did not buy it for the benefit of anyone else; that she had been in continuous possession of it since 1928; that she permitted Mrs. Holliday to live in the upstairs portion of the house, rent-free, as a kindness to her, as she had nothing and had nobody to help her.
On the 15th day of April, 1932, Effie F. T. Lewis, joined by her husband, Thomas Lewis, executed a deed of trust on this real estate to John C. Greulich, as trustee, to secure to Henry W. Tramre the payment of a promissory note for a principal indebtedness of $800, for money borrowed by Mrs. Lewis, due three years after date, together with certain interest notes. Attached to the deed of trust is an affidavit made by Effie F. T. Lewis, under date of April 15, 1932, on a form bearing a heading of "Land Title Insurance Company", in which affidavit she stated she was the owner of the real estate. This deed of trust bears the "paid" stamp of the John C. Greulich Realty and Investment Company and was in the possession of Mrs. Lewis at the time of the trial.
At the conclusion of the evidence and arguments of counsel, the trial court orally stated his views, in substance: The burden of proof was upon plaintiff to show that the notes secured by the deed of trust under which defendant Effie F. T. Lewis obtained the trustee's deed in foreclosure were barred by the statute of limitations, and that there was no such proof. There was no proof that Jennie Holliday lived in the property under claim of right or homestead. No homestead was ever set out to her. Effie F. T. Lewis collected the rents and paid the taxes. The foreclosure was valid. Defendant Effie F. T. Lewis was the fee simple owner of the property.
Plaintiff seeks reversal of the judgment upon these grounds:
First, that having shown by the recitals in the deed of trust that the notes had matured more than ten years prior to foreclosure, the burden of proof was on defendants to show payments thereon which would toll the statute of limitations; and there being no such evidence, they must conclusively be deemed barred.
Second, the notes being barred, the foreclosure proceedings and trustee's deed were void, entitling him to a judgment quieting his title.
Third, defendant Effie F. T. Lewis did not establish title by adverse possession because (a) defendant's evidence did not show all of the necessary elements of adverse possession, and (b) Jennie Holliday had a homestead in the property and, therefore, Effie F. T. Lewis possession could not be adverse as to plaintiff until the homestead terminated.
It has frequently been held that when notes are shown upon their face to be more than ten years past due the burden is cast upon the party asserting that the statute of limitations has been tolled by a valid extension agreement or payments made on the notes to prove the fact. Berryman v. Becker, 173 Mo.App., 346,
158 S.W. 899; Johnson v. Ragan, 265 Mo. 420, 178 S.W. 159; Locke v. Warden, Mo. App., 179 S.W.2d 624.
Assuming without deciding, that the notes were barred, yet it is not at all clear that § 516.150 interdicting the foreclosure of deeds of trust securing the payment of obligations barred by limitations may be invoked to obtain the affirmative relief sought by plaintiff, to-wit: the quieting of his alleged a title. Plaintiff cites the case of Utz v. Dormann, 328 Mo. 258, 39 S.W.2d 1053. In that case, under pleadings similar to those in this case, it was held that the trustee's deed was void under § 516.150 and plaintiffs were entitled to the affirmative relief prayed, and their title was quieted. Defendants, however, cite the later case of Carwood Realty Company v. Gangol, Mo.Sup., 232 S.W.2d 399. In that case, under pleadings similar to those in this case, it was held that § 516.150 was a statute of repose and could be used defensively only, and not to obtain affirmative relief.
However, it is not necessary to determine this question, as we are convinced defendants Effie F. T. Lewis clearly established her title to this property by adverse possession.
Plaintiff concedes that defendants "had a claim of right; the trustee's deed was color of title". But, he contends that the property was purchased at foreclosure "to save it for Mrs. Holliday", and that the evidence falls short of the six elements necessary to acquire title by adverse possession, to-wit: that it must be hostile, under claim of right, actual, open and notorious, exclusive, and continuous and uninterrupted, citing Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72.
At the risk of undue repetition, we will review the evidence on that issue. It does not show that Mrs. Lewis bought the property to "save it for Mrs. Holliday". To the contrary, it does show that Mrs. Lewis undertook to assist Mrs. Holliday in obtaining a loan on the property to avoid its foreclosure; that the loan was refused because of the poor condition of the property; that Mrs. Lewis then bought the property in her own right at the foreclosure sale and paid the purchase price of $648 to the trustee, and thereafter permitted Mrs. Holliday to "live in" the second story as an act of kindness to her. After Mrs. Lewis obtained the deed to the property, she took immediate possession thereof and ever thereafter claimed ownerships. In 1932, joined by her husband, she executed a deed of trust on the property to secure the payment of a note for $800, for money borrowed by her on that date. In connection with this deed of trust, she executed an affidavit to Land Title Insurance Company in which she stated she was the owner of the real estate. This indebtedness was paid and the deed of trust, stamped "paid", was in her possession.
What use Mrs. Lewis made of that part of the premises not used by Mrs. Holliday as living quarters from 1928 to 1935 is not shown, but from 1935 until the suit was brought on January 27, 1948, Mrs. Lewis, through her agent, paid all taxes on the property, rented that part of the property not occupied by Mrs. Holliday to tenants and collected the rentals, paid for the improvements and insurance thereon, and brought suits as landlord and owner against tenants for the enforcement of rental contracts.
This evidence was unchallenged and uncontradicted. It is quite clear that from the time of the execution of the trustee's deed in 1928, Mrs. Lewis, under claim of right, had actual, hostile, open and notorious, exclusive, continuous and uninterrupted possession of said property. Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544.
Plaintiffs contends, however, that Mrs. Holliday had a homestead in the property and that defendants' adverse possession did not operate to toll the statute against plaintiff as a remainderman until Mrs. Holliday's death in 1945, citing Falvery v. Hicks, 315 Mo. 442, 286 S.W. 385. He further contends that inasmuch as the entire property was less in value and extent than allowed by law as homestead, it was not necessary to have it set out to her, citing Houf v. Brown, 171 Mo. 207, 71 S.W. 125. We shall assume the latter contention is correct.
When Mrs. Holliday joined with Charles Holliday in the execution of the deed of trust, it thereby became a valid encumbrance upon the entire homestead. Section 513.475, RSMo 1949; Markwell v. Markwell, 157 Mo. 326, 57 S.W. 1078; Russell v. Franks, 343 Mo. 159, 120 S.W.2d 37, 41. When foreclosure was imminent, Mrs. Holliday not only recognized the indebtedness as an outstanding obligation against the property, but she sought to obtain a loan to refinance it. When she failed to obtain the loan, she acquiesced in the purchase of the property by Mrs. Lewis at the foreclosure sale. She then not only recognized Mrs. Lewis as the owner, but surrendered possession to her and accepted residential quarters in a part thereof as a rent-free tenant or licensee. She thereby not only evinced a clear intent to relinquish her homestead, if any she had, but she actually did so.
Mrs. Lewis' possession was thereby made complete. She had both color of title and possession of the entire estate, and thereafter claimed title as against the world.
The judgment of the trial court was for the right party and is affirmed.
All concur.