278 Mo. 295 | Mo. | 1919
Appellants in their brief have fairly outlined the facts of the case. In- fact there is no contest as to the facts, the case having been submitted upon an agreed statement of facts. We quote a part of their statement thus:
“This is an action in partition among the heirs at law of one Thomas Walton, deceased, including his widow, Mary C. Walton, his sons Charles T. and Elihu J. Walton, his daughters, Amanda Eighmy .and Oda M. Eighmy, his granddaughters, Maud Engle and Zella Trillion, and his great grandchildren, Arlyn Kirkpatrick and Helen Kirkpatrick. Both the grandchildren and great grandchildren aforesaid are descendants of one Martha Kirkpatrick, a daughter of said Thomas Walton-
“Thomas Walton died intestate in Worth County, Missouri, during the year 1878. His estate was duly probated in the probate court of said county and fully and finally settled. His daughter Martha Kirkpatrick died in the year 1907 and her son, A. V. Kirkpatrick died in the year 1915. The plaintiffs herein, Maude Engle
The land affected by this suit is described as Lots Seven and Eight of Block Sixteen in Grant City, Missouri. It was' owned in fee simple by Thomas Walton at the time of his death, at which time its value was less than $1500, when it was occupied by himself and family as a homestead. Under the statute then in force, defendant Mary C. Walton became the owner of a life estate or homestead in said land, with remainder to the children and heirs at law of said Thomas Walton, deceased.
“There is no contention in this appeal as to the various interests of the widow and other heirs at ■ law' of said Thomas Walton, deceased, in the property above described or as to the title ■ thereto. The sole question presented to this court is as to the validity of a certain school fund mortgage covering said land executed on the 29th day of December, 1896, to secure the payment of a school-fund bond, executed on that date by Mary C. Walton as principal and J. W. Watson and J. B. Dawson, as sureties, in favor of defendant. Worth County, Missouri, for the benefit of the school fund of said county, said bond being due one year from the date thereof.
“The court will understand and it is a conceded fact in this case that the $200 named in said bond was borrowed by Mary C. Walton, the life tenant alone; that at the time she so borrowed it she executed her
“At the time she, the said Mary C. Walton, borrowed said money, and with said J. W. Watson and J. B. Dawson, as sureties, executed her bond therefor, she, the said Mary C. Walton, together with her children Martha Kirkpatrick, Elihu J. Walton, Charles T. Walton, Amanda Eighmy and Oda M. ‘Eighmy executed their school fund mortgage to Worth County, Missouri, covering the above described lands, to secure said school-bond so executed by Mary C. Walton, J. W. Watson and J. B. Dawson as aforesaid.”
The contest is between Worth County and the plaintiffs and the defendants, other than Worth County. A guardian ad litem was appointed for the insane fudow and the minor defendants. The widow, the principal in the school-fund bond, made payments of interest thereon up to and including December 31, 1908. By the agreed facts these payments were made without the knowledge or consent .of the other makers of the deed to trust. It is conceded that one of the sureties on -the bond is worth $25,000 and that the insane widow is insolvent. The present suit was instituted January 29, 1916', and the answer of defendant Worth County sets up the school-fund bond and deed of trust aforesaid, and closes with the following prayer for relief:
“Wherefore, this defendant, Worth County, Missouri, prays that a sale of said real estate be made, as in plaintiff’s petition prayed; that out of the pro*300 eeeds of such sale said above-mentioned school-fund indebtedness be paid,” and for such other and further relief as shall be meet and just in the' premises. ”
An interlocutory judgment in partition was entered, and in such judgment we find (among other things) the following:
“Wherefore it is considered, ordered and decreed by the court that said school-fund indebtedness in the" sum’ of $381 is a valid and subsisting lien against the real estate herein described, and against and upon, first, the interest of defendant Mary C. Walton therein, with the residue thereof a valid and subsisting lien upon the interests of plaintiffs and.the other defendants herein according to their respective interests in said property; that said real estate be sold by the sheriff of Worth- County, according to law, to the highest bidder for cash in hand ,• that out of the proceeds of said sale, said school-fund indebtedness to Worth County, Missouri, be first paid as herein found, and after paying all costs and expenses incurred in making said sale, including fee for abstract of title to same, that the remainder of the proceeds arising from such sale be partitioned and divided among .and between the parties, plaintiffs and defendants herein, according to their respective interests as herein set forth, and the said sheriff of Worth County, is hereby further ordered and directed to make said sale at the south front door of the court house in the city of Grant City, Worth County, Missouri, and report said sale to this court, and account for and pay over, according to law and the order of this court, to the parties entitled thereto, all sums of money coming into his hands and in such sale. ”
The contention of appellants is that the payment of interest on the school fund bond after its alleged maturity (which was one year from its date) did not keep alive the lien of the deed of trust, and inasmuch as they specially invoked the Statute of Limitations in their pleadings, the decree so far as the parties were
The deed of trust in this case was executed after the Act of 1891 (of which Section 1892, supra, was a part); hence the statute applies in this ease, if the facts make it applicable. [Stockton v. Teasdale, 212 Mo. 611.]
Nor can there be any question that the payment made upon the bond by Mrs. Mary C. Walton obviated the running of the statute so far as she and her sureties on the bond are concerned. In other words, these payments by her left this bond as between Worth County and the signers of the bond a live instrument at the date of the instant suit. Neither she nor her sureties could successfully invoke the Statute of Limitations as to the obligation created by the bond. [Clinton County to use v. Smith, 238 Mo. 118, and cases cited therein.]
“Whe ref's, the said Mary C. Walton, on the 29th day of December, A. D. 1896, borrowed from the said county , the sum of--dollars belonging to the Capital School Fund of said county, for which said sum of borrowed money the said Mary C. Walton, as principal, with John W. Watson and J. B. Dawson, as securities, has executed her bond to the said county, bearing date the 29th day of December, A. D. 1896, in which said bond the said principal and securities agree and bind themselves to pay to the said county, for the use and benefit of the principal of the Capital School Fund, on or before the 29th day of December, A. D. 1897, the said sum of borrowed money with interest thereon from the date of said bond until paid, at the rate of eight per cent per annum, said interest to be paid a/nnually, on the ■first day of August of each and every year, until the whole debt shall be paid off and discharged.
“Now therefore, if the said principal and securities shall well and, truly pay or cause to be paid, the said sum of money borrowed, and all the interest thereon, according to the tenor and effect of said bond, then this*303 deéd shall he void, and it shall be released at the proper cost and expense of the said parties of the first part. But should default be made in the payment of the principal or interest, or any part thereof, at the time when they shall severally become due and payable, according to the tenor and effect of the said bond, the then acting-sheriff of the said county shall have power to and may, without suit on this deed of mortgage, proceed and sell the property herein conveyed and mortgaged, first giving twenty days’ public notice of the time, terms and place of said sale.”
We have italicized a clause with reference to interest in the quotation, supra. From this it appears that the parties to the deed of trust contemplated and agreed that interest payments were to be made annually. Not only so, but the deed of trust contemplated partial payment of the principal. The deed .of trust refers specifically to the bond, and thereby incorporates its terms into the deed of trust. The bond contains this recital:
“The conditions of this bond are: That, Whereas, the said Mary C. Walton, principal, has this day borrowed from said county the sum of two hundred doL lars, belonging to the Principal Capitol School, which said .sum of money the said principal and securities agree and promise to pay .to said county for the use and benefit of the principal of the Capitol. School Fund, on or before the 29th day of December, A. D. 1897, with interest thereon, from the date hereof until paid, at the rate of eight per cent per annum, said interest to be paid, annually on the 1st day of each and every year, until the whole debt shall be fully paid off and discharged.”
From this it.appears that the parties to the bond contemplated that it might run longer than the one year, and by the due reference to the bond in the deed of trust it must be said that the terms of the bond must be read into the deed of trust. So that- in both ways we have this provision in the deed-of trust (1) by reference to the bond, and (2) by special recital in the deed of trust. So that at the very signing of the deed