216 N.W. 798 | Minn. | 1927
The real estate is a Minneapolis residence property, which since the death of R.O. Hall, the former owner and husband of plaintiff, has been in the latter's possession. Under her husband's will, she took a life estate and D.A. Hall, Ethel Riewer and other of her husband's children by a former marriage had the remainder in fee. Plaintiff procured fire insurance, paying the premium herself but having the policy issued to the estate of her deceased husband. A fire occurred and the loss was adjusted and paid in the sum of $1,935.80. Plaintiff expended $1,222.71 in rebuilding the dwelling. This was before March 17, 1922. On that date D.A. Hall prevailed upon plaintiff to turn over to him, then representing the estate of the deceased husband, the unexpended balance of the insurance money, $713.09. She did so upon the representation and agreement that the estate of R.O. Hall, deceased, would do certain additional work then considered necessary to complete the rebuilding. That promise was not kept. None of the money so gotten from plaintiff, the life tenant, was used in rebuilding or repairs on the premises. Instead it was retained by D.A. Hall as the representative of the estate of R.O. Hall, deceased. Plaintiff was thereby disabled from making the additional improvement herself or paying for it when made. Rendahl did the work, with the resulting lien and foreclosure. The estate of R.O. Hall, deceased (D.A. Hall being sued in this action both in his representative and individual capacity) is *130 found to have been able not only to make the improvement in question, which its representative promised to do, but able also to make the redemption. The original amount of the Rendahl claim was $431.39, or considerably less than the insurance money with which plaintiff had parted. By reason of her having parted with that money and the failure of the representatives of her husband's estate to make the improvements, refund her money or apply it on the Rendahl claim, plaintiff has been disabled from paying the claim or making redemption herself. It is a fair implication from the findings not only that this was the result but also that it was intended by those who brought it about.
The next important finding is one which in substance is that defendant Robert E. Hall was not a bona fide creditor of his father but that he was given a sham note and mortgage for the purpose of making him a mortgagee so that he might redeem. That transaction was found not only to have been colorable and a matter of form only but also the result of a conspiracy to bring about a redemption which would save the property for the two remaindermen mentioned and exclude plaintiff, the life tenant.
Nothing more appearing, the disability of the remaindermen to acquire title adversely to the life tenant might have ended with the period of redemption and the failure of the life tenant to redeem. Fuller v. Dennistoun,
Remaindermen cannot so far take advantage of their own wrong that they can first by wrongful act disable a life tenant from redeeming on her own behalf and then eliminate her by having a redemption made by one who apparently is a junior mortgagee but who in fact represents and redeems for the benefit of the *131
remaindermen. Between the holders of estates for life and those in remainder there is a "community of interest" and a "community of duty" similar in source and results to those of cotenants, for a discussion of which see Fuller v. Dennistoun,
Of course D.A. Hall and Ethel Riewer had a legal right to mortgage their estates in remainder. Equally clear is the right of Robert E. Hall, as mortgagee, to make the redemption. And in such a case, the lienholder from whom redemption is made cannot question the procedure which produces his money — all he is entitled to. Bovey DeLaittre Lbr. Co. v. Tucker,
It is not clear just how the redemption by Robert E. Hall was regarded below, except that it was considered as of no effect upon plaintiff's life estate. But judgment was ordered "annulling and canceling said redemption" — that in spite of the absence, as a party to the action, of the assignee of the purchaser at the foreclosure sale. That was error. There was a redemption by Robert E. Hall. In *132
the light of the findings, it cannot be considered as one on his own behalf but rather on behalf of two of the remaindermen. That is, they (through Robert E. Hall) redeemed as owners, and thereby annulled the sale from which the redemption was made. Clark v. Butts,
There remains the matter of the accounting between life estate and remaindermen. The order for judgment as amended leaves that issue untouched. This family row between a stepmother and stepchildren should be ended. The remainder is getting the benefit of insurance procured by plaintiff, the life tenant. So she is entitled to credit for the premium she paid and the balance of the insurance money and should be charged with the sum required for the redemption. The proceeds of the fire insurance were paid to D.A. Hall for the purpose of finishing the improvement. They were not so used. They will be if applied to the redemption from the Rendahl lien. So plaintiff, in that event, cannot claim that her contribution to the redemption can be less than the whole sum required for that purpose. She voluntarily paid more than that for the work in question and is now entitled to credit for only so much of that payment as was not needed to accomplish its purpose. Counsel should be able to agree upon precisely what is necessary to bring the case speedily to final judgment.
The case is remanded for further proceedings not inconsistent with this opinion. *133