*1 891 V. BREMER. KrUG theory on he would tract, and for the whole lump sum absolutely worthless. acres were 59 to recover entitled Mr. witnesses, cross-examination, on Nevertheless, plaintiff’s two of worth twice 15-acre tract was that the Ennis, Mr. swore Peabody and plaintiff then, defiance 59 acres. The per acre much 59 was testified that the witness who acres offered one theory, 15 than the acres. per acre more worth witness was plaintiff, point asked a what Proctor, for at.one
Mr.
An
attorney
15-acre tract.
market value
the reasonable
incompetent,
was
objected, not because such evidence
defendant
one
ground
qualified
witness had not shown himself
on
that the
testify.
question
Thereupon the court ruled
of values
ground
solely
not in the case.
decided the
He
case
purchase
Mr.
nor sell
Nichols did' not
to the school district.
Other
indicated that the 15 acres
worth much
were
more
per acre than the rest of
tract. A draw in
59
acres would
require great expense
up.
fill
One witness testified
draw
that the
Sixty-fifth
was ten or twelve
acres
extent.
on
side,
Street
"WomaH
15 acres,
paved.
Road
another side of
Water,
were
light, gas and' sewers all were
up
built
close to
15 acres,
and on
part of it both trunk and lateral sewer district
tax had
paid.
improvements
No
kind
any part
on or near
were
acres;
light,
water,
gas
were further away; property on four
undeveloped.
sides was
upon
Evidence was sufficient
which the trial
might
court
have found that
acres
nearly
were more
worth
per
acre than
per
acres
worth $3150
acre. Proof
that Nichols had
profit
realized a
only by
could' be
showing
made
got
that he
more for the 15-acre
than
tract
for it, if in fact
he bought it, and that could be shown under the
by proving the value of the
tract,
entire
and the relative value of the
15 acres. There
proof
was a total failure of
any
that he received
profit.
judgment
of the trial court accordingly
affirmed.
All concur.
August
Elizabeth Krug, Appellant, Beyer
F. Bremer,
John M.
Trustees, and Anna
Mosier,
Otis
Emma
Bremer,
Springfield
Mortgage Company.
Title &
1. are equity Declarations of Law. In an suit declarations of law unwarranted, immaterial and disregarded and will he appellate in the court, which tries the suit de according novo applicable and decides it equitable principles. Supreme oe Missouri, Yol. EQUITY: Unclean Hands: Must Relate to Particular Ground of Suit. The doctrine of unclean particular hands must relate to the matter in- equity. volved in request the suit aged of an widow that trustee foreclose a farm, second deed of trust on her deceased husband’s might buy thereby made in therein, preserve order that she it in and her life estate *2 applied cannot be as “unclean hands” her to suit to have the trus-
tee’s deed cancelled for unfairness. Agent 3. DEED OF TRUST: Sale: Trustee: of All Parties: Fairness. The power trustee who exercises the of sale contained in a deed of trust is the agent parties interest, justly of fairly all protect and act must and to parties actually unfair, though all concerned. If his conduct is unintentional though unfairly, acting and he is conscious that not he is the deed made by interested pursuance power him in of the sale will be cancelled in of the suit of an party substantially injured by has who his unfair act. Financing property 4. -: -: -: Unfairness: Bidder. The by $3,000 was deed encumbered first of trust for and a second deed of trust induced the possibly inadvertently, ceeds of the for The trustee a foreclosure sale under the $150. at second representative mortgagor, plaintiff, of the widow the the paid pro- that that the was to be from the to believe first $4,600. sale, accepted for trustee and his bid testified property was sold to the first deed he announced that the trust, controversy arising over what fact announced he and a was the be- angry, crying to for af- and and at a second sold it | came excited $8,000, money, get agent the time and trustee and her asked for it, Being get unable to in which to it. him fifteen minutes forded the four-thirty trustee, of the and in the afternoon five o’clock between Saturday, day, time and sold cried the sale for a third which was same buyer nor of- neither tendered $2025. or for to one of the defendants fered to tender money cash, his another defendant tendered but either accepted, At a con- $2025, never cashed. for which' check trustee, Monday, agent following for with these two on ference the by a deed company, secured "to them loaned defendant trust mortgages. paid Thus he land, both the loan and out of trust on negotiating the loan. for sale, a commission and obtained financed the plain- hostile to trustee became of the the attitude show that facts Other crying ac- refused at the third and he had first cried tiff after unfair, Held, and the sale was or son. cept her from aside. set should be -; Financing Partiality: A under- Bidder. secret -: -: 5. standing a foreclosure bidders and the successful commission, agent’s them, an trust, for to furnish a deed sale under and there- at the sale buy property, if undisclosed money with which parties in in- advantage over given an are bidders the successful aside, set requires partiality, and terest, amounts sale.price. a better been sold could where grantor four made Deeds Deeds. Undelivered 6. CONVEYANCE: death, then pockets his after death, in his found days before nothing, conveyed grantees, person, to the mailed, unknown some in them. described the land toas grantor intestate died conveying --; a deed Ambiguity. A condition Reformation: 7. certain, meaning can- is language and whose expressed clear . language, ambiguity in the no there Where altered. or reformed not be the court give instrument one, intended make not permissible. meaning different conveyance Re-entry. Where Subsequent: Breach: .-: Condition 8. a mort- payment of grantee assume upon condition made 893 KRUG v. Bremer. gage during year per wife one hundred dollars lives, subsequent, grantee their natural the condition was and the having perform condition, gran- gran- failed either widow the deceased re-entry, has the lieu tor thereof a suit to divest the title, tee for condition broken. Money Pay Mortgage. 9. SUBROGATION: Trustee’s Sale: Notwithstanding Advanced to pursuance powers the trustee’s deed executed in ex- pressed in a deed of trust must be second cancelled because unfairness company a trust which advanced the with which both rights subrogated deeds trust were should be of the holders mortgage notes to the extent of its advancements. Appeal Error, J., 2554, Corpus Juris-Cyc. p. 4 References: C. Section J., 660, 76; 2647, 726, Deeds, 115, p. 210, p. 17. 18 Section n. n. C. Section 35; 360, 58; 381, 364, 374, p. p. n. 7 New. n. Section Descent and Section n. J., J.,.Section 232, 924, Equity, p. Distribution, p. 21 C. n. 71 New. C. 26; J., 1415, 968, Mortgages, 173, p. 187, Sec- C. Section n. n. Section Instruments, Cyc., p. n. p. 'Reformation of n. 88. tion Subrogation, Cyc., p. n. 92. Menson, Court.—Mon. Charles Appeal Lawrence Circuit L. *3 Judge. (with directions). and remanded
Reversed appellant.
M. H. Bloss for
(1)
limitations,
are
expressed words of
such
Where a deed has
as
Krug,
Henry and Elizabeth
to the children of
the deed
contained
grantors
or the survivor. Cross v.
a life estate is reserved
Pitman,
281;
101
McMillan
Hock,
325;
149
Mo.
v.
Mo.
v.
Lewis
409;
Collins,
Farrow,
55;
Carter,
141
120 Mo.
Munro v.
Mo.
Schoor v.
411;
86
33;
Kenmuir,
95 Mo.
90 Mo.
v.
James,
Harbison v.
Bean
Mo.
(2)
language
666;
would have netted
given the same
this trustee
and had
erty,
than
sum
gave
buy-
he
up the transaction
closed
privileges
this
arrangement
loan
evidently had an
he
ers
whom
consummated. Even
through
could have been
company, the deal
his
William
property when he
this
forbid
at the third sale of
high
gone
bidding
would have
all,
that,
to bid
by Hal Johnson
Krug had'
authorized
at that time.
extent.
bid to that
he would take care of the
Mayhew
respondents.
D. S.
and Ben M. Neal for
(1)
If land
of trust for cash and the debtor
is sold
deed
under
highest
pay,
it is not
price therefor,
bids the
which he is unable
highest
generally when the
error to sell to
next
bidder. And
irresponsible,
successful
or refuses
offer,
bidder withdraws
present
may
bid,
prop-
while
bidders are still
sale
erly
reopened, especially
person promises
higher
some other
mortgagee upon
comply
bid. So if the
the failure of
one bidder
immediately
again
put up
premises
with his bid
for
mortgagor’s presence,
object,
who
sells
for a
does
lesser
previously bid,
ground
avoiding
sum than was
this is
no
the sale.
19 R.
(2)
C. L. sec.
inquiry
The essential
toas
the fair
making
conduct of
Everything
the trustee in
the sale.
considered
the' ease
one in which
judge
conclusion of
trial
as to the
question
making
ought
fairness
the sale
accepted,
to be
since
saw and' heard the witnesses and was better
able
determine what
respect.
fact was in that
Borth
Proctor,
(3)
S. W. 74.
operative
Before a deed
necessary
becomes
it is
actually
that it be
de-
actually accepted.
*4
livered and
Schooler v. Schooler,
Henry Krug, died November who County. seventy Lawrence acres hundred certain one 1, 1921, executed a second March plaintiff on Krug and That said' years, in one to five secure five notes due on said land to trust deed $150, which trust deed one Groves respectively, aggregating substituting and that he substi- trustee, another, with the conducted fore- Otis Mosier such who tuted defendant had That said sale was executed trustee’s deed. closure sale and 1, payment thirty-day March note due because of default 1923, Bremer and and that at said sale defendants $2025; alleges petition fraud, un- purchased the land for then part of oppression fairness and his conduct of prays executed and the cancellation deed deliv- Beyer, ered the substituted trustee to Bremer and and for other and further relief.
The answer of the defendants in substance admits the execution delinquent foreclosed, interest, deed trust and the sale September 15, 1923, the trustee to Bremer and followed Beyer, by general prays denial. The answer further affirmative relief rela- tive the reformation and warranty correction of deeds executed Henry Krug* plaintiff G. Beyer, to Anna Bremer and Emma daughters, because of a mistake of the scrivener. develops Henry that G. Krug many had been for years before his death seventy the fee owner the one hundred and acres of land to: referred On Krug March said plain- tiff executed a covering deed of trust said land to secure five notes thirty each, years dollars due in one five date, respectively, which recited' that it was a prior mortgage dated 'December 28, 1915, $3000. now reduced to On December days four before death, Krug, said joining therein, warranty executed a deed to each of his six children, respectively, con- veying to each a portion certain of the one hundred seventy farm, respective acre reciting deed's a conveyance to each child of separate portions and each containing deed provision following: “This deed is made Henry life -estate Krug Elizabeth or the survivor of upon them and condition that the [specific said shall Henry child] said Krug and' in case if his death to *5 Elizabeth the sum per $100 year during the natural life of the survivor of them. Grantee assumes a mortgage on the above agrees which he assumes and in the sum of Missouri, Yol. SxjpReme immediately to ber delivered was Anna Bremer Tbe deed to
$550.” respective recorded. Tbe and was by tbe after its execution found by grantor, tbe were retained five other children deeds tbe grantees respective mailed to tbe pocket after bis in bis demise children nor Anna tbe unknown. by some Neither $550, nor sum of mortgage in tbe part of tbe paid proportionate provided' by the per annum as $100 tbe paid their mother sum respective deeds. place Septem- on sale took separate foreclosure cryings
Three Dayton through ber crying plaintiff ber 1923. At the first accepted. Plaintiff, was $4600, was final bid and bid Johnson the morn- arrangements with one through Dayton, had made However, the mort- money. after necessary prin- gage plaintiff in favor of Johnson or had executed controversy trustee, a cipal, and the trustee’s deed executed whether the foreclosure arose as to between Johnson and the trustee contending mortgage, sale first $3000 was subject had maintaining that subject that it was so and Johnson not, but that first mort- day told him earlier that it was gage proceeds Johnson tes- debt to be of the sale. was out morning take $3500 tified him that that would that trustee told mortgages probate $1000 care cover costs would and the to take second mort- debts Johnson refused estate. gage give minutes and the trustee said that he would them fifteen place to raise raised, and if it was not he would sell the again; ready pay, provided' Johnson had the under- standing crying with the out. At trustee had been carried the second Dayton, representing plaintiff, $8030, sale but whether this mortgage was to the first or not the evidence fails to Dayton show. testified in substance that he understood the was not mortgage, receiving in- sold first this formation from the The $4600. trustee. first bid' he made second time he bid $8030, thing and his statement is that the whole $8030; went at agreed Johnson at one time to loan necessary. A controversy again arose $8030, probably as to the bid of because could necessary not obtain the cash partly be- cause the being paid- trustee insisted on in cash. crying third was had and at this sale he would not let plaintiff or her two bid'. The sons sale was had Saturday, last sale after bank closed, impossible had and it was cash. Dayton testified that $11,000. farm was worth about Plaintiff tes- tified that the spring next after the death of her husband, Beyers and Bremers started possession parts to take of their of and she ordered them off, belonged' felt that it she That her. her sons Will and John told her it was her land and that she should *6 V. BREMER. KRUG and one land back wanted the Will and That she have it. let them not they that to foreclose so asking him trustee boys wrote if that, understanding them was the that it buy in; could and that the together on it live they to were they bought get trying to not That was it. she be out of were to children farm, they would interest out of their children these other going to beat them death; she was that her get part after out it. he that testified in substance defendant, Hosier, the For stop and together pay the interest to get
tried to folks willing let their were to Beyer and' Mrs. Bremer Mrs. that paid inter- lived, long as she land as she stay mother on the they sold, if Bill that, wanted it taxes; plaintiff told him est two-thirty sale was cried about it. That first would sell have to being he announced' it was Dayton $4600, but that bid p. M., signed That he then the trustee’s mortgage. subject $3000 a sold to right, get “all the mon- said we Krug, deed to Johnson Mrs. him if ey,” On his return Johnson asked going then the bank. debt, and free of title was clear $3000-mortgage.” said', a Johnson then “No, this is sold it; I anything with didn’t understand it said, “I won’t have to do way.” cash, that That he then said he would have sell it for again so, notified sell and did and that it was bid all that he would it had $4705 off after he announced three times that it was interest; mortgage Day- $3000 sold and the accrued that ton bid in and told trustee he would it then have to wait ten days money. fifteen for his trustee told him he could not do that, until give four-thirty and then told him he him it would up, again. four-thirty again fixed would That after or he sell he cried Bill bidder, the sale and that was the first but the trustee accept refused his bid for the reason that had fallen down before; Dayton that he refused to bid for Krug, let Mrs. did but allow Johnson; Beyer him bid for then $2025 and it was Beyer gave sold to him. That him a cheek for but he did not it, taking cash him. Monday Beyer the cheek morning home and Bremer came to his asked him if officeand $5500 he would loan Krug farm; that he then he would, subsequently told them pre- paring put papers signed which record; that he off the mortgage Brothers, first to Groves and has the balance of the money in possession, which has held on he advice of counsel. That money he through loaned the new company that he was agent for, and for company he at the time he con- ducted the sale. Bremer testified that he did' not have the in the bank when gave check to and it was then understood, the trustee so
316 Mo.—57. op SupReme Missouri, Vod. re- funds, but he, Beyer, had sufficient
although stated depository. tell the fused little at the third that he bid Krug in rebuttal testified "Will him on bidding trustee forbid stopped because $2000, but over cryings; two money at the‘other have the they did not ground that just money was, but forbid him where didn’t ask ' said he would in rebuttal that he bidding. Johnson testified him dollars, that he thousand six money up to five or furnish the *7 they might they afraid were go that because didn’t want to over mortgage. facts we selling Such have some trouble opinion. in the pertinent will stated deem be law are immaterial equity I. As in declarations of this a suit disregarded. equity In consequently and and will unwarranted appeal on and the cause the fact are reviewable suits Instructions. £rjayg n0V0; constituting appellate court thus equitable the arbiter of of fact as the final reviewer trier well principles applicable. Toms, S. W. [Harwood 666.] II. We are confronted at the threshold with defendants’ con- tention that does not equity come to a with court of clean hand's. Whether the gives contention is well pause, founded us requires that the epitomized. Plaintiff, evidence be at the death husband,- her seventy-one years was- age. The evi- Clean Hands. dence shows that she had not paid called for warranty deeds, any grantees nor had of the respective portions mortgage required by the condi- tions in the deeds. She was advised her sons Will John it was her effect, may we assume, that she. had life estate therein and possession. was entitled to She stated that she and Will wanted the land back and that one bojos of her wrote asking him they to sell the land so buy could it in. It was understood that, they bought if them the land under they foreclosure, together were to live on it and the other children it; were to be out that she trying was not to obtain the other chil- interest, dren’s they for part would' their at her-death. above is the testimony upon by relied defendants to show unclean hands. presented situation is that an lady old seventy-one years age, whose repudiated children had the conditions made for her
benefit in the warranty deeds obtained title to the „ land, as she viewed it. respective Whether deeds were valid as conveyances is in determining immaterial whether approached she equity hands, clean may we assume that her lack train- 89!) Kkug v. BbembR. inva- validity or regarding the nothing her legal matters told iug in her failure of effect interpret Unable lidity of deeds. mean- lifetime, or the during his deeds five of the to deliver husband her children felt that therein, she placed the conditions year dollars hundred her agreement repudiating their to foreclosure. which were mortgages, to care finance the pay funds to to obtain a marketable title Without agreement by her chil- repudiation of mortgage and with the position her felt she no doubt mind, we have dren arrange- adequate could make unless she precarious and’ that life was charity want and left ments, she would be herself un- nothing found and she do others. Her children would simple title. obtaining a fee remedy matters without able applicable to hands” is “unclean do not think that the maxim We particular matter developed. It must relate the facts here cancelling trus- question involved is involved. The here sale for unfair- setting of the foreclosure tee’s deed and the aside plaintiff’s hands part ness on the of the trustee. The assertion declining years enveloped protection for are unclean part. providing against want, possible, on her The situations *8 analogous. questions hand the trustee’s are not On the one she protect fairness, right provide herself while on the other her against questioned'. question of charity want or unclean subject does not arise out of the transaction which is the bands suit.
In v. Smith, 286, 105, regarding 57 S. W. Axman Mo. an anah> gous maxim, says: equity equity. court “He who seeks must do But whilst that violated, yet maxim to be is never it is not so encased in injustice cast-iron rules as applica- to render it the means of in its tion. When a suitor equity comes into a court of for redress wrongs, grant the court upon will him relief such terms justice demands, of his require cause will equity him to d'o giving before him what seeks. But court will not make an requirement adjust unreasonable him, and will the matter accord- ing to the the case. only And it is in that sense that the end equity.” attained is In Stegmann v. Weeke, 134, 214 S. W. it is said: “The ancient
maxim that he equity who comes into must come with clean hands applied has been to various cases, kind's of but it has its limitations. particular iniquity prevents pursuit the. equitable of an remedy part of must particular relate to the mat- hand, ter must arise out of the transaction which is of the suit.” In Miller v. Enterprise Canal Co., 142 Cal. 100 Am. St. it is held: “But these maxims have their limitations, and will not Missouri, Vol. oe SUPREME
C© oo alleged un- wrong when injustice and great allowed work be any transactions entirely unconnected with act is lawful parties the suit.” applicable. here hands is doctrine of unclean not think We do then fairly trust conducted III. Was the deed the sale under question. becomes the vital parties for all agent of a trusted trustee is that
The status comprehends not agency trusteeship or transaction. This trust, that is by the deed of the maker of notes secured trust, transaction. When que every party to the cestui but includes foreclosing power the trustee exercises the Unfair Sale. (jee(j fairly justly trust, duty act 0f it is his may be, conducting it such parties all concerned. While protect yet unfairly, an intention act that he not conscious of injury actually operated unfair and to the conduct was though complaining party transaction, conduct, such even un- unfair intentional, taint, will from its nor the act not relieve the sale consequences. from its in many phases frequently
Unfair acts of trustees have been the judicial Neal, Hanson Thus in attention. 114 W. say: equity always S. court “Courts-of proceedings jealous their scrutinizing eye; watched with a it is clearly where trust, shown that have abused their or com- other, bined with party relief will detriment granted. Not that a slight sale made them be set aside on or grounds; frivolous appears injury where siibstantial has re- action, sulted’ from their where, pursuance powers, they neglected have failed or discretion, exercise wise and sound equity will interfere.” In Axman v. Smith, supra, it “A is said: is not the mere attorney note, for the holder of the but he the trusted agent of both debtor and In creditor. the sale of under *9 a deed' like the in question, he should all use reasonable effort and methods to bring it make as possible, much as and he should be fair impartial as between debtor creditor.” The court in Green Real Co., Estate v. Building Co. 93 S. 1111, say: W. “The the deed agent of trust was the of both the of the property owners and' the debt, secured and it duty his to act without partiality toward either of them. He had no authority to do other than to sell property the to the best advantage of the owner of the debt and debtor, the alike, and con- duct the sale according to the terms of the trust, deed' of and with absolute fairness.”
We interpret the showing evidence as that the trustee, possibly in- advertently, Dayton, plaintiff’s induced representative during KRUG Bremer. money, to believe of the Johnson, lender the tenative bidding, and paid from the was to be trust deed of the three-thousand-dollar that The trustee deed of trust. second sale under of the proceeds property sold the that he he stated however, that testified, controversy arising relative to Upon the of trust. the first deed and, excited trustee became that the evidence shows question, the argument be- that the infer therefrom angry. Wé assume, may we that thence shows the evidence think and we came heated cry- At the second plaintiff. hostile trustee became attitude of the Dayton that show place seems to at one sale the of the testimony in that plaintiff. The trustee’s on behalf of bid re- matter which So, off at no $4705. bid regard it was shows that crying that at the second tends show correct, the evidence cital plaintiff, Dayton, for $8000. for about farm sold of the sale the get it. The that he could money, stating asked for time get the in which to fifteen minutes however, afforded him trustee, property. Plaintiff again would sell on condition that he four-thirty trustee, procure money, unable to p. day, for the third time same cried the sale and five m. Beyer did Beyer $2025. for
sold the to defendant ten- did' check, cash or but Bremer tender or offer to tender either accepted, never cashed. $2025, der his check for the trustee Monday have that in the bank. The Bremer stated he did not sum to a Saturday, Beyer proceeded and Bremer following the sale on Springfield who, Title with the as conference secured Mortgage Company, & loaned question, out of which he retained deed of trust on the land well as the amount due mortgage, $3000 on first on mortgage. second surrounding circumstances,
Considering all the the evidence and we think did not sell the land to the is shown the trustee advantage, partiality. best show acts Not plaintiff, Henry Krug, but all well as the owner the children of notes, greatest were entitled have the sell for the possible. excited, and, amount as we are ad- That became angry sons, record, vised and hostile and her clearly accepted demonstrated, think. unsecured we He check accept one who was refused to bidder, not the successful give others, higher check or who had bid reasonable ground necessary time obtain funds that the sale was for cash. He stated that it was cash sale and then failed and re- require fused to payment, cash but extended credit and financed later bidder, successful who the record tells was care unable take without financial aid. We infer that had a secret understanding, during cryings either before Beyer and Bremer to furnish funds finance a sale to them. His *10 op MissouRi, You. 316. SUPREMECOURT negotiating the to commission obtain interest undoubted one plaintiff. While disclose to failed to information lie
loan. This yet the lend- money, there persons he lends may to whom choose the advantage party material gives that money to party partiality. Moreover be held party, the act will over plaintiff or permit crying either third he refused been shown that ground' that it had twice her son to bid on the Beyer bid and ac- permitted pay cash, and then unable ascertaining the cepted without and an unsecured check his bid knowing ability payor it, care of well we think of the to take history compels Beyer. intended to sale finance sale that, related', us it was to conclude of the circumstances view duty trustee, considering hour and the the lateness closing banks, postponed day, to another re- to have advertising, complete justice may necessary, full and so that parties. extended to all think shows that We the evidence the property greatest bring probable, did not amount due fault of the trustee. The sale should be set aside and the trustee’s deed to and Bremer canceled.
IY. by plaintiff We are asked and defendants to construe reserving granting clause in the deeds a life estate and providing payment further to her the sum of one hundred per dollars assumption annum and the of the deeds of trust to the dollars, fifty extent of five hundred and grantee in each deed. The evidence shows that the Deeds Delivered after Grantor's only grantor deed delivered was the deed Death. remaining to Anna Bremer. The deeds to the five children were found pocket grantor in the death, at his thereafter mailed, by designated, some one not respect to each child ively. Provided these true, shows, facts are and the so conveyance any validity was the deed to Anna Bremer. deed's the other five conveyances children were ineffective as and failed pass any title to represented by one. As to the land such deeds intestate, died devolving passing according to the inheritance plaintiff’s laws and marital rights. Prima-facie, the deed to Anna granted a life estate grantor’s widow, and, in addition, was grantee conditioned on the paying to the year during widow one hundred dollars a her life and assumption of the deeds of trust extent Reformation. grantee. A subseauent clause in the deed warranted against the title the lawful claims and per of all demand's sons whomsoever foregoing to tli& conditions. *11 V. BREMER. KRUG to the of deed reformation pray the in answer Defendants upon condition” “and A-nna. words the contending that Bremer, deed They that a aver condition.” upon “or be construed should in the stated agreement is not mutual the be reformed where only evidence The scrivener. the mistake instrument, due to attorney who testimony the of in the is found relating a mistake to Krug and Gus Henry in substance stated He the deed. drew some stating wanted Krug he office, to Anna Bremer came to about know No seemed farm. disposing of his deeds drawn not Krug. did Mr. Mr. except Mr. Bremer these deeds accept not, but to them or going children know the whether undertook done and witness what he wanted about he told witness made these deeds He wanted wanted done. thought what he do he allotted, and the could take the so that each child in the a condition farm. He wanted off lady old could move the they not in would pay a hundred dollars they if did not deed would of facts that nothing relation in the above the land. We see justify of the deed. the reformation “and” the word principal contention is that
However, defendants’ deed, “or,” by the context should as evidenced be construed Robinson, 237 S. W. support position Willis and cite in of their v. ruling case, in but do quarrel We no with the analogous to here involved. As was said consider it the facts interpretation Robinson, supra; Willis cardinal rule of “Under a meaning.” ascertain its we are look this itself to instrument permissible surrounding when the of Evidence meaning ambiguity ap- or obscure, of an the context is uncertain or pears. interpretation In the reason for obtains. case, instant no language meaning. Positive evi- is clear and certain as well necessary interpret dence and be its strained inferences would meaning permit engraft- To than deed. otherwise is said thereof, language an alter instrument the clear intent express language used, shown would certain be sanc- tioning making legal courts, a preposter- instruments power. [Jennings v. assumption Brizeadine, 332; ous Jones v. Shepley, Mo. 307.] Anna deed to delivered to her rights becoming
and her once, therein effective at it is evident that subsequent precedent. Having the condition was and not failed to pay plaintiff per year one hundred dollars or to assume Re-entry. ¿ee(js ^ trust, re-entry in lieu there- 0f of suit to divest her of title condition broken obtains. However, settling rights parties in administering estate, pro- vided necessary that issue determine, her remainder interest, retained, should an be treated as advancement to that extent. op Missourx, Yol. SUPREME COURT Inasmuch, Mortgage Company
,. Title & Springfield Y. as defendant liquidate the first and second deeds trust advanced think; therewith, in connection we and interest Subrogation. subrogated rights holders of trust to the extent of such second deeds of advancement. first and We therefore reverse remand cause with directions to the trial court to set aside the foreclosure sale under the second deed pursuance trust and deed and to remove Otis thereof,_ trustee’s Hosier as substituted in said second deed of trust and to appoint rights a new all powers trustee with original *12 Higbee, C., trustee therein. concurs. CU foregoing opinion RIAM: —The Davis, C., adopted is PER opinion
as the judges All court. concur. The State v. Dink Lucas, Appellant. 714, S. W. 1051. W. S. Two,
Division March 1927. Principal: Jury. MURDER: Case for porch As mother sat on a front- ing east road, towards a eight evening April about o’clock in the public 20th, pistol four or five shots passing upon were fired from an automobile road, five-year-old daughter, her lap, held in her was killed. It conceded that at least defendant and another were in the automobile from which the shots were they fired. The mother testified that fired were seat, husband, the back approaching and her along public the house road, pass house, saw the shots, automobile and heard the and saw the gun just flashes of opposite fire as the automobile was the house. As the passed car him he identified occupants defendant and said other as the sole car, of said occupied and testified that said other the front seat and was driving, occupied Held, testimony and that defendant the rear seat. of the mother the fatal shots were fired from the rear seat and the testimony occupied seat, of the husband that defendant the rear made a case theory jury that defendant himself fired the fatal shots. Accessory: appellant 2. -: Common Plan. If did not himself fire the shots, aided, conspired occupant fatal abetted or with the other came, automobile from which the fatal shots and as a result of such con- spiracy plan shots, appellant just and common such fired the fatal guilty he he would be had fired them himself. But if said other fired knowledge purpose defendant had no of his the fatal shots and to do so end, appellant guilty all, conspire with him to that of no did not crime although occupied said other the car from which the shots fired. Assignments Indefinite. error which are set 3. ASSIGNMENTS: definiteness meet for a new trial with sufficient the motion forth in page be requirements cannot considered Laws Section upon appeal. Manslaughter. An instruc- Evidence: Murder and -: Demurrer acquit should telling jury and the evidence under the law tion (a) there is substantial where refused the defendant should