Nall v. Nall

GRAVES’, P. J.

Action in partition. In 1904 William H. Nall departed this life in Olay county, Missouri, seized and possessed of the land involved in this controversy. He left a will, the material portions of which are:

“3rd. I will and devise all my real estate to my wife during her natural life, and at her death to be sold and equally divided between my three sons, namely, William W.,. Charles P., and Lewis H. Nall, share and share alike.

“4th. My daughter Fannie, now intermarried with Edward Bowring, I have, by advancement given to her her full share of my estate, in real and personal property.”

Some dates and data become material to determine the ultimate question in the case. The widow, Ester A. Nall, was made executrix of the will, but died in September, 1905, intestate. In William H. Nall’s *253 estate final settlement was made February 15, 1907, and final settlement in her estate was made October 30, 1907. May 23rd, 1908, this suit was filed, and in the petition it was alleged that the plaintiffs owned two-thirds of the land (one-third each) and the appellant, Charles P. Nall, the other third, all in fee. This petition did not set out the will of William H. Nall, but did aver that by such will the land was left to the mother for life, with remainder in fee in the plaintiffs and Charles P. Nall. It alleged the death of the widow, and pleaded certain incumbrances placed upon the lands by the plaintiffs and Charles P. Nall. It also alleged certain rents to be due from the said Charles P. Nall, and prayed for an accounting thereof and for the partition and sale of the lands involved. To this petition the appellant here, one of the defendants below, filed answer as follows:

Now comes defendant Charles P. Nall, and for his separate answer to the allegations in plaintiffs’ petition, admits the truth of the same, and aslts the court to protect his rights and interest in the real estate therein described. Simrall & Simp,all,

Attorneys for defendant Charles P. Nall.

November 11,1908, an interlocutory judgment was entered in accordance with the prayer of the petition. No exceptions were saved to anything done at the November term of court. Under this judgment the land was advertised to be sold at the February term of the court, or on March 22, 1909. March 12, 1909, at the February term aforesaid, appellant, by different counsel, filed his motion in the circuit court asking that he be permitted to amend his answer so as to aver that neither the plaintiffs nor this appellant had any interest in the land in dispute. He avers in the motion that the answer theretofore filed was by reason of a mutual misunderstanding of himself and his counsel as to his right and interest in the land. Upon this motion evidence was heard, and thereafter the same was overruled, and the land sold, deed made, and order *254 of distribution made. The exceptions upon this hearing were preserved by bill and they are the only exceptions here for review. From the evidence introduced upon this motion, it appears that the appellant and his then counsel did in fact examine the will, but as they aver, only with the idea of determining whether the appellant here, defendant there, could have his interest in the land set out in hind. It was further shown that Charles P. Nall had mortgaged his “undivided one-third interest” in said land for $1500 on March 25,1907, more than a year prior to the partition suit. This deed was in force at the time the suit was filed and at the time of judgment. The plaintiffs had likewise encumbered their interest prior to the trial. These mortgages were all introduced in evidence on this motion. There was likewise introduced three other mortgages or deeds of trust made before the suit by appellant, in each of which he undertook to convey his undivided one-third interest in this land. These had been satisfied of record. There was also introduced in evidence a deed of trust for $702 executed by appellant after the interlocutory decree, in which said deed he undertook to convey his “undivided one-third interest’'’ in'this land. This sufficiently states the case.

I. There are two reasons for an affirmance of this judgment. The first goes to the condition of the record. There is no bill of exceptions as to matters occurring prior to the interlocutory decree. The petition avers that the respondents and appellant owned the land by virtue of the -will of their father. The terms of the will are not pleaded. What evidence there might have been introduced on the hearing of the case does not appear. The interlocutory decree recites that evidence was heard and argument of counsel made. If it be granted that the will, afterward preserved in the bill of exceptions on the mo *255 tion, was in fact in evidence at the trial of the issues, and if it be further granted that under the terms of the will the land was converted into money upon the death of the testator (a debatable question under the terms of the will) yet there might have been ample evidence before the court to show that the parties at the proper time had elected to reconvert, and if so they would then in fact have held the land as land, but under and by virtue .of the will of their father. It is to be presumed that the trial court in the matter of this judgment proceeded by right and not by wrong, and in the absence of a bill of exceptions preserving the evidence, it will be presumed that the court had evidence upon which to base its findings and judgment. This is elementary. Now in this condition of things, we cannot say that the trial court abused its discretion in refusing to permit the appellant to amend his answer.

The evidence heard at the trial and within the knowledge of the trial court might .have been such that it would be a strain of his discretion to have permitted the amendment as suggested in appellant’s motion for leave to amend. The exact condition the trial court knew, and we are precluded from knowing, because of the absence of a term bill of exceptions preserving the evidence.

But we need not rest the case here, and will take up the merits as now alleged by appellant.

II. Appellant urges that under the will of the father neither the respondents nor the appellant had any interest in the lands in controversy, and for that reason the motion to set aside the interlocutory judgment should have been sustained, and the final judgment is erroneous. This contention proceeds upon the theory that the father’s will had the effect of converting this land into money so far .as the respondents and appellant are concerned. To our minds we need not *256 discuss the somewhat involved question- as to whether or not this will operated as appellant contends. We may for the disposition of this case concede that the effect of the will, so far as respondents and appellant are concerned, was to convert this land into money at the date of the testators death, yet it might have been real estate as to the same parties at the date of the institution of this suit. Under the facts shown and the governing law we think the respondents and appellant owned this property as land and not as money when this suit was brought and when it was tried. The doctrine of reconversion is as thoroughly grounded in the law as is the doctrine of conversion. In other words that whilst the terms of a will may in legal effect convert land into money, yet subsequent acts of the beneficiaries may reconvert the subject-matter into land.4 The doctrine of reconversion seems to be conceded in a way by appellant’s counsel, but they say that the facts shown upon this motion do not show a re-conversion, and this is the one vital question upon this branch of the ease.

To our minds it is immaterial for what we have to say under this point whether the equitable conversion of the land into money is held to have occurred at the death of the testator and thereby upon the incoming of the will, or at the' death of the life tenant. It is clear no actual conversion could have taken place until the falling-in of the life estate. Up to the actual sale we have only a constructive conversion.

In 9 Cyc., p. 853, we have a concise definition of the term reconversion, thus: “Reconversion is that imaginary process by which a prior constructive conversion is annulled and the converted property restored in contemplation of law to its^original state.”

' This imaginary process is one which takes place upon the election of the beneficiary under the instrument creating the constructive or equitable conversion. This doctrine of election is concisely stated by the *257 same authority and on the same page above named, in this language: “In the application of the doctrine of equitable conversion, it is a well-settled rule that .if money is directed by a will or other instrument to be laid out in land, or land is directed to be turned into money, the party entitled to the beneficial interest may in either ease, if he elects so to do, cause a reconversion of such property and take it in its original state.”

Both the doctrine of “equitable conversion” and the doctrine of “reconversion by election” being thoroughly recognized in the law, the only questions left in this case are, (1) When should the election to reconvert take place, and (2) What evidence is sufficient to show such election to reconvert.

The rule as to the time of the election to reconvert is given in 9 Cyc., p. 857 in this language: 11 The right of election must be exercised before the property is actually converted, and until it be actually exercised the property bears the same character and remains subject to the same rules of transmission to representatives as if conversion were actually made.”

It will be seen that under this rule the beneficiaries may elect to reconvert, at any time, before the actual conversion takes place. The word “actual” is used to distinguish it from a mere constructive conversion. The constructive conversion is the one made by the written instrument; the actual conversion, in the case of lands, is the one made by the sale. Under the rule, therefore, the beneficiaries may elect to hold the land rather than the proceeds of the land, at any time before the sale, or actual conversion. And this would be true whether we fix the date of the constructive conversion at the day of the testator’s death or at the date of the life tenant’s death. The exact date of the constructive conversion is not material to the determination of this case.

*258 Upon the evidence adduced upon this motion-no actual conversion had ever taken place. In other words the land had never been sold under the provisions of the will. Was there evidence of an election to reconvert? We think so. Prior to the suit each beneficiary under the will had given a deed of trust upon his respective “undivided one-third interest” in this land. The giving of these instruments prior to the actual conversion was a clear election to reconvert. “So the giving of a mortgage by a person entitled to the proceeds of the sale of land is a clear election upon his part to take land.” [9 Cyc. 855.]

In Gest v. Flock et al., 2 N. J. Eq. 115, the learned chancellor said: “There is another view of this case equally fatal to the complainant’s contentions. Where a sale is directed to be made of lands, and the same person is entitled to take the lands that would take the money in case of a sale, and the party elects to take lands, a court of equity will not disturb that election, or compel a sale. [Osgood v. Franklin, 2 John. Ch. Rep. 21; Amler v. Amler, 3 Vesey, 583.] The giving of the mortgage by Albert, was a clear election on his part to take land, and upon no principle can that election be now disturbed.”

In that case the widow held a life estate provided she did not marry. The son Albert was one of the beneficiaries under the will of the father, which will directed the sale of the land by the administrators. No sale was made, and after Albert, the son, became of age, he and his mother executed a mortgage to the defendant Flock. Some years after this the said Albert made an assignment by deed to the plaintiff Gest, “of all that part, share, proportion and dividend of the personal and real estate of the said Hendrick Schenck, which theretofore became due, or which might thereafter descend or become due and payable to the said Albert.” Flock foreclosed his mortgage. Plaintiff’s bill sought to compel the executors to sell the land and *259 to pay Albert’s share to complainant. The -will is much like the will at bar. It was under these facts that the New Jersey court spoke as above indicated.

But in the case at bar we find that the appellant gave not only one, but several deeds of trust on his interest in this land prior to the suit for partition. The respondents had likewise elected to reconvert by giving mortgages or deeds of trust on their parts. So all of the beneficiaries had elected to reconvert before the filing of the suit. Not only so, but the appellant here gave a further mortgage on his part even after the interlocutory decree.

But góing a step further. By the petition and answer in this case there was an election by all the beneficiaries to reconvert. By the petition two of the beneficiaries under the will, entitled to the proceeds of the land, claimed the land rather than the proceeds. This was a solemn election upon their part. In answer to that petition this appellant made his election just as solemn. The petition pleaded the appellant’s prior election by the deed of trust alleged to have been given by appellant. This deed of trust appellant did not deny. From it all it must be held' that all the beneficiaries under the will had elected to reconvert, and that at the institution of the suit and by the institution of the partition suit, the parties held this land as land, and not as money. Not only so, but upon the face of the pleadings there appeared to the trial court the evidence of reconversion.

Other intricate and interesting questions need not be discussed. If there is any substance in the doctrine of reconversion, the judgment nisi is correct. Without intervening matters which we may preclude, the right to elect to reconvert exists to the date of an actual conversion by sale. Under the facts of this case there was a reconversion, and the beneficiaries under the will held the property as land, and not as money. The trial court committed no error in refus *260 ing to further open up the case upon the motion of appellant, and its judgment on the merits was right. Let the judgment nisi stand affirmed.

All concur.