Vantage Mining Co. v. Baker , 170 Mo. App. 457 ( 1913 )

STURGIS, J. —

The plaintiff in this case is and has been mining certain land in Jasper county Missouri, under a mining lease of the usual form used in that district, except as to the clause providing for the payment of the rent or royalty, which is as follows: “The party of the second part, his successors and assigns shall pay to the parties of the first part on Monday of each week as rent or royalty 'five per cent to H. M. Baker and three per cent to Sarah E. Baker, of the market value of all ores mined or sold during the preceding week.”

The beneficiaries of this rental clause, H. M. Baker and Sarah E. Baker, are the grantors in said lease and at the time of making same were husband and wife. H. M. Baker was the owner of the land demised and his wife had no interest in the same at the time she joined in making the lease except her inchoate right of dower.

For some years after making the leases the plaintiff mining company paid the royalty of eight per cent of the value of the ores mined and sold regularly and without any question as to the ownership of same to said H. M. Baker and Sarah E. Baker in the proportions specified in the above clause of the lease — five-eighths to H. M. Baker and three-eighths to Sarah E. Baker. Sarah E. Baker died in May, 1909, and until the final settlement of her estate in the probate court two years later the plaintiff, without any question being raised as to the ownership of the royalty, continued to pay the same in the same proportions to H. M. Baker and to the estate of Sarah E.' Baker. In October, 1911, IT. M. Baker first set up the claim that he was entitled to all the rent and royalty accruing under this lease and notified plaintiff to that effect and to pay all of such royalty to him and no part of the same to the heirs of his deceased wife. The wife’s heirs — their common children — made claim of right to the three-eighths of the royalty payable under the lease to their mother. Thereupon the plaintiff filed its hill of interpleader, making said H. M. Raker and the four children of Sarah E. Baker parties defendant. The defendants appeared and by separate answer asserted théir respective claims to the royalty accruing under the lease, and by consent plaintiff has been paying same into court as it accrued.

I. The main question to be determined in this case arises on the appeal of II. Mi Baker and is whether after the death of Sarah E. Baker the three per cent rent and royalty, specified in the lease to be paid to her, belongs to her husband, IT. M. Baker as owner of the land, or to her children, the other defendants, as her heirs. The trial court held that such part of the royalty properly belonged to the children as heirs. H. M. Baker appealed and urges here that on the death of Sarah E. Baker, and settlement of her estate, that part of the royalty specified to be paid to her followed the ownership of the land and became payable to him as such owner. That question will now be examined.

It will be conceded, as contended by appellant, that the only interest Sarah E. Baker had in the land covered by the lease was her inchoate right of dower; and that such right does not rise to the dignity of an interest or estate in land and cannot while inchoate be valued in money, nor assigned, aliened or transmitted except by joining in a conveyance with her husband. [Brannock v. Magoon, 216 Mo. 722, 116 S. W. 500, and authorities there cited. Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480.]

It is, however, shown by these same authorities that the inchoate right of dower is an incumbrance on and affects the title to land. It is a substantial right, possessing in law many of the incidents of property and even the courts cannot deprive the wife of this right or compel her to relinquish or assign it by joining her husband in any conveyance. [Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480.] There can be no question therefore that her signing the mining lease in question, jointly with her husband, furnished a sufficient consideration for the provisions of .the lease making a part of the rent or royalty payable to her. “A wife has no interest in her husband’s lands which she can convey by separate deed, but she does have an interest which she can release by joining with her husband, and such release may be a valuable consideration.” [Murray v. Cazier, 58 N. E. (Ind.) 476, 477.]

It is also true that rent generally follows the ownership of land and any transfer of land by deed, will or inheritance carries with it the right to collect and receive the rent. [Stevenson v. Hancock, 72 Mo. 612, 615; Page v. Culver, 55 Mo. App. 606; 24 Cyc. 1172.]

“Rent is incident to the reversion, and whenever that is severed by the act of the parties or the act of the law, the rent will follow the reversion and be payable to the assignee thereof.” [Taylor Landlord and Tenant, sec. 388.]

But did the relation of landlord and tenant exist between Sarah E. Baker and the lessee? We cannot see how it could when she had neither possession or estate in the land. She was not the landlord. [24 Cyc. 923; Connolly v. Giddings, 24 Neb. 131, 37 N. W. 939.]

As we have seen, the wife, having only an inchoate right of dower, had no possession, title or estate in the land at the time the lease was made and she had no reversion therein after it is made. “Reversion is the residue of an estate left by operation of law in the grantor or his heirs or in the heirs of a testator commencing.in possession on the determination of a particular estate granted or devised.” [Black’s Law Dictionary, Reversion; 2 Blackstone’s Comm. 175.] At the death of the wife there was no reversion passing from her to the husband or anyone else for the rent reserved to follow. Her right of inchoate dower perished with her. Learned counsel are entirely in error in assuming that, because she was one of the grantors, on her death the reversion passed from her to the husband and the rent payable to her would follow that reversion. Her death merely extinguished her inchoate right of dower and nothing passed to anyone any more than there would on the extinguishment of a mortgage on the land. For the purposes of this case the wife was a stranger to the land demised. The husband, H. M. Baker, is and was the landlord both before and after his wife’s death and the owner of the reversion.

This-is merely a case where the landlord in making this lease, for a valuable consideration and with the assent of the lessee, assigned and set apart to his wife, a third party, three-eights of the rent reserved to be paid to her during the life of the lease. We think it was competent for him to do this.

In Leonard v. Burgess, 16 Wis. l. c. 42, the court said: “The grantor may sever the rent from the reversion, by granting the land with a reservation of the rent; or by assigning the rent and either retaining the reversion himself, or conveying it to a third party who has knowledge of such assignment.”

In 24 Cyc. 928: “The lessor may assign the rent and covenant for rent without the reversion. It is immaterial that the rent assigned is not due. . . . Where the rent is assigned the relation of landlord and tenant is established between the assignee and lessee. The assignee, however, has no right of ownership or right to possession and no interest beyond the term of the lease.” [See also 24 Cyc. 1175.]

In Murray v. Cazier, 53 N. E. (Ind.) 476, the court said: “The owner of the land, the husband, had entire control over the rents during his lifetime and could direct their payment to whomsoever he pleased. . . . As the rent accrued he could do as he pleased with it, for it then became as any other debt due. It is quite true that the rent may be assigned by a lessor before it becomes due, so as to devest the lessor of all right of action for such rent.” [See also 1 Under-hill on Landlord'and Tenant, sec. 336.]

There is no question that if the rent had been evidenced by a note, payable to the wife, that on her death the same would have passed to her heirs and we do not see why the same thing could not be accomplished by a suitable provision in the lease itself.

That the right of Sarah E. Baker to collect and receive this rent or royalty is personal property there. can be no doubt. The lease in question severed it from the reversion and assigned it to her. It is held in Orchard v. Store Co., 225 Mo. 414, 433 (125 S. W. 486), and the many authorities cited there, that a leasehold for any number of years is personal property. Certainly the rent and right to collect the rent is personal property, at least when thus severed from the reversion.

Being personal property, the estate being finally settled and not having been used to pay debts of the deceased, the share of the rents payable to Sarah E. Baker due and to become due under the lease passed to the heirs of Sarah E. Baker, to-wit, to her husband, IT. M. Baker, and their four children, one-fifth each; and the trial court correctly so held. [Revised Statute 1909, section 349; Richardson v. Cole, 160 Mo. 372 61 S. W. 182; McCracken v. McCaslin, 50 Mo. App. 85.]

II. The second question to be determined herein arises on the appeal of W. W. Baker. He claims that he purchased and had assigned to him his father’s one-fifth interest in the part of the royalty payable to Sarah E. Baker; and tliat he is entitled to that share of the royalty in addition to the one-fifth coming to him as one of her heirs. In support of his claims it appears that during the course of the admni-istration of his mother’s estate, he and his father, H. M. Baker, entered into the following agreement:

“This indenture, made on this 19th day of October, 1910, by and between IT. M. Baker, a single man, of Carthage, Jasper County, Missouri, as party of the first part and W. W. Baker, of Carthage, Jasper county, Missouri, as party of the second part.

“Witnesseth: That said party of the first part, for and in consideration of the sum of five hundred dollars ($500) and other valuable considerations not herein mentioned, to him paid by the party of the second part, the receipt of which is hereby acknowledged, does by thése presents, grant, bargain, sell, convey and confirm unto said party of the second part, his heirs and assigns, the following described property, to-wit:

“All of the right, title and interest in and to his distributive share of the estate of Sarah E. Baker, deceased, as said estate is shown by the records of the probate court of Jasper county, Missouri, except his distributive share in the following described piece of real estate situated in Jasper county, Missouri, to-wit:” Here follows description of certain lands.

It seems to be conceded that this instrument is sufficient to transfer to W. W. Baker whatever part of the royalty was paid during the time of the administration, but that when final settlement was made his right to collect and receive his father’s share of this royalty ceased and determined. This claim is based on the supposed limitation of the interest transferred made by the words, “As said estate is shown by the records of the probate court of Jasper county, Mis-, souri.” The trial court sustained the contention of the father, H, M. Baker, in this respect.

The argument in support of this contention is that “the burden is on the apellant, W. W. Baker, to show that the records of the probate court, relative to the estate of Sarah E. Baker, include the money in .question;” that there is no proof of this' fact in the record of this case; that the money in question arising from the royalty under' the lease did not accrue until after final settlement; that the only thing which this assignment was intended to 'cover was such property as the administrator had in his possession as shown by the records of the probate court.

We are not impressed with this argument. The transfer and conveyance is of* all the right, title and interest in and to grantor’s distributive share of the estate of Sarah E. Baker, deceased. The clause then added, “as said estate is shown by the records of the probate court of Jasper county, Missouri,” appears to have been added, not as cutting down or limiting the thing conveyed, but rather as pointing out where the parties might go to obtain more definite information as to the amount and nature of the estate, an interest in which was being transferred. We do not think that the intention of the parties was to cut down and lessen the thing granted, so as to convey only a part of the distributive share, when the previous language is so explicit in conveying all of such distributive share. We are strengthened in this conclusion by the fact that the grantor expressly excepts from the conveyance his distributive share of certain real estate; which would not usually be shown by the records of the' probate court, except in the inventory. Whether or not deceased’s interest in the rent made payable to her by the lease is shown by the inventory we are not advised as the inventory was not put in evidence. If that fact were material we might indulge the presumption that the administrator did his duty in making an inventory of all the estate of deceased; and so the interest in the mining lease would be shown by the records of the probate court. [Agan v. Shannon, 103 Mo. 661, 15 S. W. 757; Chilton v. Metcalf, 234 Mo. 27, 136 S. W. 701; Smith v. Vickery, 235 Mo. 413, 138 S. W. 502; State ex rel. v. Williams, 99 Mo. 291, 12 S. W. 905.]

The court therefore erred in holding that H. M. Baker was entitled to a one-fifth of the royalty m question and directing its payment to him.

It results that the ease should be reversed and remanded, with directions to enter judgment in favor of the defendants W. W. Baker, Bessie Burchard, H. Due Baker and Clyde E. Baker for all the rents and royalties paid into court, less the proper costs and expenses. It is so ordered.

Farrington, J., concurs. Robertson, P. J., being of counsel, not sitting.