Hardy v. Atkinson , 136 Mo. App. 595 ( 1909 )

BRQADDUS, P. J.

The appeal in this case is from the action of the court in overruling defendant’s demurrer to plaintiff’s petition.

The recitations of the petition in substance are: That in September, 1898, one W. J. Atkinson executed his promissory note payable to James T. Atkinson or order for the sum of $500 due one day after date, bearing seven per cent interest per annum; that the said W. J. Atkinson with his wife the defendant Sarah C. for the purpose of securing the payment of the note executed a deed of trust in the nature of a mortgage with J. E. Lander as trustee conveying to the latter for the use of the said James Atkinson as beneficiary certain real estate, described, upon tbe usual conditions in sucb instrument, and that when tbe debt and interest was paid tbe instrument was to be void, otherwise to remain in full force and effect.

' It is alleged that tbe said W. J. Atkinson failed to pay any part of said note and interest; that after its execution tbe said W. J. Atkinson died, on tbe 25th day of December, 1898, intestate; that be left no property subject to administration and no administration was bad on bis estate; that on tbe 14th day of January, 1899, defendant Sarah C., bis widow, filed a motion in tbe probate court of Moniteau county, stating that tbe personal property of tbe said W. J. did not exceed $94 in value, and praying that an order be made refusing letters of administration; that tbe court upon bearing tbe motion made an order that no letters of administration should be granted on said estate and all tbe property of deceased was turned over to tbe said Sarah C. as widow; that tbe said W. J. at the time of bis death occupied tbe dwelling on tbe land described with bis family and that said real estate constituted bis homestead, and that of bis widow.and bis minor children during their minority; that after tbe death of tbe said W. J. tbe defendant Sarah C. continued to occupy tbe said real estate up to tbe present time, with tbe defendants Elva A. Howard and Sarah E. Atkinson, children of W. J. and Sarah C., who have obtained their majority; that said homestead was at all times and now is of less value than $1,500; that tbe said Sarah C. and daughters Elva A. Howard and Sarah E. Atkinson were and are tbe only heirs at .law of tbe said W. J.; that tbe said Sarah C. as widow was entitled to life estate in tbe realty as her homestead and that tbe other defendants are entitled to tbe remainder subject to said mortgage debt; and that plaintiff is informed that Sarah C. has made a quitclaim conveyance of her said homestead rights to her two daughters, Sarah E. and Elva A.

It is further alleged that the said James T. Atkinson died intestate, in Moniteau county, on the 12th day of December, 1905, that on the 19th day of December, 1905, the plaintiff as public administrator was appointed administrator of the said James T. Atkinson’s estate and as such brings this suit; and that the trustee has moved from the State; that as no action as a strict action of law for foreclosure of said mortgage will lie, under the facts of the case,- and there can be no administrator appointed, the chancery powers of the court are invoked for a judgment of foreclosure in equity, and for a sale of the property, which must be sold as a whole, and after the payment of the note and interest, the balance of the proceeds be paid out under the orders of the court.

To the petition defendants filed a demurrer the purport of which is that the estate of the said W. J. in the land cannot be foreclosed unless it be represented by an administrator; and because the defendants are not necessary parties to the suit.

Section 4346, chapter 52, concerning mortgage and deeds of trust provides: “In case of the death of the mortgagee or his assignee or of the mortgagor, whether before or after action brought, the personal representative of the deceased party shall be made plaintiff or defendant, as the case may require.” [McDonald v. Frost, 99 Mo. 44; Tierney v. Spiva, 97 Mo. 98.] And it is held in such cases that the only necessary party to the suit is the administrator of the deceased. [Hall v. Klepzig, 99 Mo. 83; Blevins v. Smith, 104 Mo. 1. c. 615.] And in Thornton v. Pigg, 24 Mo. 249, it is held that although a wife should join with her husband in the execution of a mortgage, she is not a necessary party under the statute to foreclose a mortgage. See, also, Riddick v. Walsh, 15 Mo. 519. But this rule does not apply after the death of the husband as the wife’s inchoate right to dower has by his death vested an estate as tenant for life.

And it is said there is nothing inconsistent with the widow’s rights to both dower and homestead in the same estate. [Gragg v. Gragg, 65 Mo. 343.] But she is entitled to her homestead first and from the residue of the real estate she is intitled to dower, diminished by the amount of her interest in the homestead. [R. S. 1899, sec. 3621.] It appears from the recitations of the petition that the widow’s right of dower is extinguished by reason of the preponderance in value of her homestead right. The widow having conveyed her homestead right to her two children, the entire fee to the land merged in them, they being the remaindermen. [5 Words and Phrases, 4492; Bassett v. O’Brien, 149 Mo. 381.] The mortgage covered the entire fee including dower, homestead and the remainder, and a foreclosure would pass to the purchaser such fee.

If there should be a surplus, it would go to the widow. It is held that if the property be of greater value than the homestead and the mortgage combined, the widow is entitled to the surplus after a deduction of the amount of the mortgage. [Hufschmidt v. Gross, 112 Mo. 649; Burroughs v. Howell Co., 180 Mo. 642; Elstroth v. Young, 83 Mo. App. 253.] Such being the law, notwithstanding the merger, the general creditors would have no interest in the estate. Consequently, there was no necessity for an administrator.

Affirmed. All concur.