243 Mo. 247 | Mo. | 1912
Action in partition. In 1904 William H. Nall departed this life in Olay county, Missouri, seized and possessed of the land involved in this controversy. He left a will, the material portions of which are:
“3rd. I will and devise all my real estate to my wife during her natural life, and at her death to be sold and equally divided between my three sons, namely, William W.,. Charles P., and Lewis H. Nall, share and share alike.
“4th. My daughter Fannie, now intermarried with Edward Bowring, I have, by advancement given to her her full share of my estate, in real and personal property.”
Some dates and data become material to determine the ultimate question in the case. The widow, Ester A. Nall, was made executrix of the will, but died in September, 1905, intestate. In William H. Nall’s
Now comes defendant Charles P. Nall, and for his separate answer to the allegations in plaintiffs’ petition, admits the truth of the same, and aslts the court to protect his rights and interest in the real estate therein described. Simrall & Simp,all,
Attorneys for defendant Charles P. Nall.
November 11,1908, an interlocutory judgment was entered in accordance with the prayer of the petition. No exceptions were saved to anything done at the November term of court. Under this judgment the land was advertised to be sold at the February term of the court, or on March 22, 1909. March 12, 1909, at the February term aforesaid, appellant, by different counsel, filed his motion in the circuit court asking that he be permitted to amend his answer so as to aver that neither the plaintiffs nor this appellant had any interest in the land in dispute. He avers in the motion that the answer theretofore filed was by reason of a mutual misunderstanding of himself and his counsel as to his right and interest in the land. Upon this motion evidence was heard, and thereafter the same was overruled, and the land sold, deed made, and order
I. There are two reasons for an affirmance of this judgment. The first goes to the condition of the record. There is no bill of exceptions as to matters occurring prior to the interlocutory decree. The petition avers that the respondents and appellant owned the land by virtue of the -will of their father. The terms of the will are not pleaded. What evidence there might have been introduced on the hearing of the case does not appear. The interlocutory decree recites that evidence was heard and argument of counsel made. If it be granted that the will, afterward preserved in the bill of exceptions on the mo
The evidence heard at the trial and within the knowledge of the trial court might .have been such that it would be a strain of his discretion to have permitted the amendment as suggested in appellant’s motion for leave to amend. The exact condition the trial court knew, and we are precluded from knowing, because of the absence of a term bill of exceptions preserving the evidence.
But we need not rest the case here, and will take up the merits as now alleged by appellant.
II. Appellant urges that under the will of the father neither the respondents nor the appellant had any interest in the lands in controversy, and for that reason the motion to set aside the interlocutory judgment should have been sustained, and the final judgment is erroneous. This contention proceeds upon the theory that the father’s will had the effect of converting this land into money so far .as the respondents and appellant are concerned. To our minds we need not
To our minds it is immaterial for what we have to say under this point whether the equitable conversion of the land into money is held to have occurred at the death of the testator and thereby upon the incoming of the will, or at the' death of the life tenant. It is clear no actual conversion could have taken place until the falling-in of the life estate. Up to the actual sale we have only a constructive conversion.
In 9 Cyc., p. 853, we have a concise definition of the term reconversion, thus: “Reconversion is that imaginary process by which a prior constructive conversion is annulled and the converted property restored in contemplation of law to its^original state.”
' This imaginary process is one which takes place upon the election of the beneficiary under the instrument creating the constructive or equitable conversion. This doctrine of election is concisely stated by the
Both the doctrine of “equitable conversion” and the doctrine of “reconversion by election” being thoroughly recognized in the law, the only questions left in this case are, (1) When should the election to reconvert take place, and (2) What evidence is sufficient to show such election to reconvert.
The rule as to the time of the election to reconvert is given in 9 Cyc., p. 857 in this language: 11 The right of election must be exercised before the property is actually converted, and until it be actually exercised the property bears the same character and remains subject to the same rules of transmission to representatives as if conversion were actually made.”
It will be seen that under this rule the beneficiaries may elect to reconvert, at any time, before the actual conversion takes place. The word “actual” is used to distinguish it from a mere constructive conversion. The constructive conversion is the one made by the written instrument; the actual conversion, in the case of lands, is the one made by the sale. Under the rule, therefore, the beneficiaries may elect to hold the land rather than the proceeds of the land, at any time before the sale, or actual conversion. And this would be true whether we fix the date of the constructive conversion at the day of the testator’s death or at the date of the life tenant’s death. The exact date of the constructive conversion is not material to the determination of this case.
In Gest v. Flock et al., 2 N. J. Eq. 115, the learned chancellor said: “There is another view of this case equally fatal to the complainant’s contentions. Where a sale is directed to be made of lands, and the same person is entitled to take the lands that would take the money in case of a sale, and the party elects to take lands, a court of equity will not disturb that election, or compel a sale. [Osgood v. Franklin, 2 John. Ch. Rep. 21; Amler v. Amler, 3 Vesey, 583.] The giving of the mortgage by Albert, was a clear election on his part to take land, and upon no principle can that election be now disturbed.”
In that case the widow held a life estate provided she did not marry. The son Albert was one of the beneficiaries under the will of the father, which will directed the sale of the land by the administrators. No sale was made, and after Albert, the son, became of age, he and his mother executed a mortgage to the defendant Flock. Some years after this the said Albert made an assignment by deed to the plaintiff Gest, “of all that part, share, proportion and dividend of the personal and real estate of the said Hendrick Schenck, which theretofore became due, or which might thereafter descend or become due and payable to the said Albert.” Flock foreclosed his mortgage. Plaintiff’s bill sought to compel the executors to sell the land and
But in the case at bar we find that the appellant gave not only one, but several deeds of trust on his interest in this land prior to the suit for partition. The respondents had likewise elected to reconvert by giving mortgages or deeds of trust on their parts. So all of the beneficiaries had elected to reconvert before the filing of the suit. Not only so, but the appellant here gave a further mortgage on his part even after the interlocutory decree.
But góing a step further. By the petition and answer in this case there was an election by all the beneficiaries to reconvert. By the petition two of the beneficiaries under the will, entitled to the proceeds of the land, claimed the land rather than the proceeds. This was a solemn election upon their part. In answer to that petition this appellant made his election just as solemn. The petition pleaded the appellant’s prior election by the deed of trust alleged to have been given by appellant. This deed of trust appellant did not deny. From it all it must be held' that all the beneficiaries under the will had elected to reconvert, and that at the institution of the suit and by the institution of the partition suit, the parties held this land as land, and not as money. Not only so, but upon the face of the pleadings there appeared to the trial court the evidence of reconversion.
Other intricate and interesting questions need not be discussed. If there is any substance in the doctrine of reconversion, the judgment nisi is correct. Without intervening matters which we may preclude, the right to elect to reconvert exists to the date of an actual conversion by sale. Under the facts of this case there was a reconversion, and the beneficiaries under the will held the property as land, and not as money. The trial court committed no error in refus