Ailey v. Burnett
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Opinion of the Court
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Babclay, J.
This is a suit in equity. The chief plaintiff-is Mrs. Rachel Ailey, a married woman, whose husband joins her in the case. She is the daughter of Mr. Harrison Benton, deceased. There are a number of defendants, the leading one being Mrs. Luvenia Burnett, formerly widow of said Benton, now the wife of Mr. Burnett. '
We pass the pleadings and state the substance of the controversy.
Waiving some slight discrepancies as to dates, there is no dispute as to the facts that govern the result.
Harrison Benton was a colored minister of the gospel in Kansas City, where he acquired a small piece of land in 1868. He died in October, 1876. At that time the defendant Luvenia was his wife. She has ever since resided upon the property mentioned. He left one child, Mattie, as the issue of his last marriage. She is one of the defendants in this suit.
Benton had been previously married to the mother of plaintiff, but had been divorced from that wife, on *317 his application. Plaintiff Rachel was born in April, 1862, of that union, and hence became of age (18 years) in 1880.
During his lifetime, August 12, 1875, Benton and wife executed a deed of trust in the nature of a mortgage conveying the said land to secure to Mr. Bassett payment of a note for $190 with interest, 15 months after that date. It was in due form and recorded. It remained unpaid at his death.
In September, 1877, a sale took place according to the terms of the deed of trust. Luvenia Benton, the widow, became the purchaser of the land, by trustee’s deed, also duly recorded.
The petition in the suit at bar was filed, September 19, 1890.
The object of the suit is to set aside the sale last named, to obtain a decree vesting title to one half the property in the plaintiff Rachel, subject to the life estate of Luvenia, and to have any other relief that may be obtainable.
Plaintiff insists both in her pleadings and evidence that the land in question was the homestead of her father when he died. This claim is stoutly disputed, on the theory that he had abandoned the place as a homestead.
We shall not go into the merits of that branch of the controversy. We deem it unimportant in view of other rulings. We assume, for the present, the soundness of plaintiff’s contention that the property was the homestead of the deceased.
Benton died in 1876. The homestead law then in force governs the rights of these parties.
By the homestead act of 1875 (Laws, 1875, p. 60, sec. 1) the interest of a minor child in the homestead of its father is limited to the period of its minority. R. S. 1879, sec. 2689, identical with the law of 1875. *318 When the child reaches full age, its interest in the homestead as such ceases. It certainly has no claim thereafter to the homestead as against the surviving widow of the homesteader.
It appears from plaintiff’s own testimony that when she was 18 years old, living in Kansas at the time, she got an attorney there to write to one in Kansas City “to find out about the property.” It was some years later before she actually engaged an attorney to bring suit.
There is no proof whatever of any claim on her part or of anyone for her, during her minority, of a right to occupy the homestead along with the widow who was in possession. The present suit is not founded on a denial of such right. It proceeds on the theory that plaintiff is entitled as heir at law, owning an undivided half of the fee (after the life estate of homestead of the widow), to attack the title conveyed to Luvenia by the trustee’s deed based upon the incum-brance imposed on the land by plaintiff’s father in his lifetime.
Whatever plaintiff’s ultimate rights may be as heir of her father, it is clear that her interest or estate acquired by that relationship is subject to his just debts, and certainly is subject to the mortgage placed on the estate by him.
■ Irrespective of any title acquired through the deed of trust, defendant Luvenia is entitled to present possession and enjoyment of the land, if it be homestead property as plaintiff asserts.
The later marriage of Mrs. Burnett did not destroy her right to the homestead.
She also certainly had the right to buy in the property at the trustee’s sale, for the protection of her limited estate and of the interests of all others concerned, even if she did not have the right to buy it for *319 herself alone. We do not pass on the disputed question as to her right to buy it for herself. It is hot necessary to do so now.
If she is subject to be placed by a court of equity in the position of having bought as trustee for those interested in the fee of the land, that is to say, for plaintiff (as to the latter’s interest), it is yet evident that plaintiff will have to bear at least a due share of the burden of the debt of Benton which the secured note represented, before she can acquire any rights in the property superior to Mrs. Burnett (regarding her now merely as purchaser in trust under the deed of trust).
Mrs. Burnett is at least entitled (on the facts stated) to be subrogated to the rights of the holder of the mortgage and to remain as mortgagee in possession until satisfaction of the debt secured.
Plaintiff has at no time paid or tendered any part of that debt, and her rights are clearly subordinate to the security given by her father for its payment.
Defendant in any view of the facts is entitled to present possession- of the land as homestead property. It will be time enough to consider plaintiff’s rights in remainder when she exhibits facts showing she has done all that equity demands of her in respect of discharging or tendering her due proportion of the mortgage obligation.
We fail to discern in the facts before us, as the case now stands, any valid reason to set aside the trustee’s deed to Mrs. Burnett or to disturb her enjoyment of the homestead of her former husband.
The trial judge found for the defendant, and no sufficient cause has been pointed out for reversing that decision.
There may be other valid grounds (growing out of the facts stated) to deny plaintiff a present right of re *320 covery in equity as well as at law; but it is not necessary to consider them, as plaintiff must fail for the reasons already given.
The judgment is affirmed.
Brace, 0. J., and Mao-farlane and Robinson, JJ., concur.
On Rehearing
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ON MOTION FOR REHEARING.
Per Curiam.
The chief contention on the motion for rehearing is that plaintiff’s right to a judicial declaration, establishing her interest in the property, should not be denied because of the fact that she has made no tender toward redemption of the property from the incumbrance. Her claim is that the offer to do full equity is enough to satisfy the demands of the law.
We do not regard that claim as sound, in the circumstances exhibited by this record.
Sometimes an offer to do equity may be sufficient to satisfy the requirements of justice; but not where the property, in which an interest is sought to be asserted, is charged with a definite equitable incum-brance, as in the case at bar.
Assuming, as plaintiff contends, that Mrs. Burnett is to be dealt with as a mere tenant for life, still her purchase of the land at the sale (under the old deed of trust) at least inured to her benefit so far as to keep 'the incumbrance as such, alive against anyone claiming the property in remainder who might assert a right to redeem. In re Harvey (1896) 1 Ch. 137.
Mrs. Burnett has, on principles of subrogation, the right to maintain the status of a mortgagee in possession as to plaintiff, in that view of the case, on plaintiff’s own theory of her standing.
Holding that position, and there being no claim that the old debt has been discharged, or even reduced, by rents and profits or otherwise, Mrs. Burnett can not *321 be disturbed in her possession or title, held at least as a security, without an actual tender of the sum equitably due by plaintiff on account of the incum-brance still resting, equitably, on the estate. What that sum would be, need not be considered, as no tender whatever has at any time been made.
There could of course be no successful claim advanced by plaintiff that the rents and profits had reduced the principal debt, since on plaintiff’s own theory, Mrs. Burnett would be entitled to receive them by virtue of her right to enjoy the homestead during her life.
These observations dispose of all we note in the motion for rehearing calling for any further comment than was made in the first opinion.
The motion for rehearing is overruled.
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