79 Mo. 47 | Mo. | 1883
Presby C. Morgan owned two contiguous bodies of land making an eighty acre tract, which was half a mile long from east to west. He mortgaged this tract to an eastern company to secure the sum of $500, his wife relinquishing her dowér. ' Subsequently, he conveyed by warranty deed the east forty to his son “ Dick,” the consideration expressed in this deed being $1,000. Presby Gr. Morgan died. Plaintiff had a claim for, say $400, probated against his estate.
There were rumors in the community that the conveyance from the father to the son was made in fraud of creditors, but I find nothing in the record which induces belief that plaintiff was possessed of facts which would have authorized him to take steps to have the conveyance set aside, and nothing to show that he was actuated by any improper motive when he subsequently, and during the pendency ©f the suit to foreclose the mortgage, bought the east forty of Dick Morgan for the sum of $800, paying him therefor $50 in money, a horse worth $125, and crediting the probated
Nor does that conclusion appear to be affected by the fact that by the order of the probate court a homestead, consisting of the west forty, has been assigned and set apart to the widow and a minor child of the deceased mortgageor, because the widow had already relinquished whatever right she possessed to the property mortgaged when she joined in the deed to that effect. Searle v. Chapman, 101 Mass. 338; 5 Cent. Law Jour. 278; nor have her rights been enlarged by subsequent occurrences. Her status respecting that forty, remains as it was, and as to the minor heir, he occupies no better footing; “ for the heir sits in the seat of his ancestor.” Clowes v. Dickenson, 5 Johns. Ch. 235; 2 Jones Mort., 1090.
Our conclusion in the matter then is, that the judgment be reversed and the cause remanded, with directions that the circuit court will hear testimony as to the value of the respective forties, and then proceed by suitable decree to enforce against the west forty, its proper proportion of the mortgage debt, considered with reference to the agreement