Higbee v. Billick

148 S.W. 879, 244 Mo. 411, 1912 Mo. LEXIS 327

Opinion

LAMM, J.

From a decree for plaintiff clearing up and quieting the title to two lots, defendant Mary E. Billick appeals. The case is this:

William MaGee died intestate in January, 1906., a resident of Schuyler county, seized of lots three and four in block twenty-nine in the village of Glenwood, leaving three children, one, the defendant Mary E., intermarried with Martin L. Billick. Plaintiff contends that the MaGee estate was insolvent; the record does not disclose so much as that, but does disclose that it was indebted-the extent is left dark. The Billicks live in Iowa. The value of the lots was small. At the death of her father, Mary E. Billick held a small note .against him dated in the November prior to his death and secured by a deed of trust on the lots.

In August, 1906, the MaGee heirs sold and conveyed these lots to Martha E. Lasley by a warranty deed, put of record, covenanting against incumbrances and with other usual covenants. At that time there had been no administration on the MaGee estate and no administrator in charge. The plan of consummating this sale was as follows:

A deed was executed by the MaGee heirs to Mrs. Lasley, and Martin L. Billick appeared on the scene, as we understand it, with this deed and with his wife’s said note duly indorsed over to him by a general indorsement, to close the transaction. He did so by satisfying the record of the deed of trust on the margin as assignee of the note — the entry reading: “The debt mentioned in the within deed of trust, having been fully paid and discharged, I hereby acknowledge satisfaction in full and release the property herein conveyed from the lien and encumbrance therein, this 29th day of August, 1906. (Signed.) M. L. Billick, assignee of beneficiary. Attest: Thos. L. Buford, Recorder, by Florence Dobbins, Deputy.”

At the same time on the margin of the same record the following entry was placed. “The note secured by the within deed of trust was produced and cancelled in my presence this 29th day of August, 1906. (Signed.) Thos. L. Buford, Recorder,' by Florence Dobbins, Deputy.”

Mrs. Lasley paid Billick $175 in cash and executed a deed of trust, in which her husband joined, to secure $325, evidenced by three notes signed .by them, all bearing date August 30, 1906; one, for $100' due in one year; another, for $100' due in two years; another, for $125 due in three years — all payable to Mary E. Billick at Logan’s Bank, Grlenwood, and bearing seven per cent interest after date. Referring to the deed of trust securing said notes, it bore date August 291, 1906, and conveyed the two lots to Spencer, trustee of Mary E. Billick, and the same was spread of record. The notes were put in Logan’s Bank, Grlenwood, together with the following contract:

This contract witnesseth:

That M. E. La-sley has this day bought of the heirs of Wm. MaGee, deceased, lots 3 and 4’ and in block 29 in Glenwood. Mo., paying' one hundred and seventy-five dollars ($175) down and executing notes and mortgage for the balance of $325, and it is agreed and understood by and between M. L. Billick on the part of the heirs and said M. E. Lasley that the notes for the deferred payments as above stated are to he placed in the hands of cashier of bank in Glenwood and to remain in his possession until it is ascertained and- determined that all debts against the estate of Wm. MaGee have been paid and if the said Lasley shall he obliged to;6ay .any debts on the MaGee estate, same may he' deducted from- the balance or amount of the purchase money notes to be left in said bank. a

Dated this 29th day of August, 1906.

M. L. BILLICK,

M. E. LASLEY,

By W. N. LASLEY.

Afterwards, in 1908, the estate of William MaGee was pnt in charge of the public administrator of Schuyler county. It does not appear directly at whose instance the administration was had, whether of creditors or of heirs or whether the public administrator moved, or the probate court ex mero motu. It does appear that the Lasleys ineffectually objected to an order of sale, and that Mr. Fogle, of counsel at present for Mrs. Billiot, represented either the administrator or the creditors or the heirs in supporting a sale. Some stress is laid upon the appearance of plaintiff as attorney- for the Lasleys in opposition to the order of sale, on one side, and on the fact that Mr. Fogle, who got the order of sale for the administrator, is now contending that the administrator’s sale did not pass a title clear of MaGee’s deed of trust, on the other. But we will not pursue the matter, for the respective contentions pro and con on that head smack of being makeweights, therefore beside the merits. Such debts were allowed against the estate and such proceedings taken in the probate court as resulted in an administrator’s sale of the lots to Mr. Mills at public sale. Mills then and there turned his bid over to Mr. Higbee. Thereafter the administrator made due report of sale to pay debts, which was approved by the probate court, and in June, 1908, an administrator’s deed, in due form, with apt narrations, was executed to Higbee, on the payment of the Mills bid of sixty dollars.

Thereafter Higbee lodged his bill in equity in the Schuyler Circuit Court in two counts. The object and general nature of the first was to clear away the cloud of the deed of the MaGee heirs to Lasley and of Lasley’s deed of trust and to cancel the notes secured thereby, plaintiff claiming a fee simple title. The second was under old section 650 to ascertain and determine the title and interest of parties litigant in and to said lots. The Lasleys, Logan’s Bank and Mary E. Billick were made defendants. The form or substance of tbe bill is not assailed, hence need receive no further attention.

We take it the Lasleys and the bank made no defense, but Mary E. Billick filed an answer. It admitted that MaG-ee died seized in fee of the lots, leaving as his only heirs the children named in the bill; admitted they conveyed to Mrs. Lasley, and that the Lasleys “executed to Mary E. Billick” the three notes described, and denied all the averments of the bill “except ás above stated.” It then averred that the Lasleys executed the deed of trust to Spencer, trustee, referred to in the bill; that the Lasley notes were not delivered to defendant, but were deposited in Logan’s Bank in G-lenwood on conditions and terms agreed to by Martin L. Billick. At this point the escrow contract, heretofore set forth (we use the word “escrow” for want of a better) is pleaded in terms. The authority of Martin L. Billick to receive the cash payment and to deliver the deed of the Lasleys is not denied or referred to in the answer, but it does deny his authority to make the escrow contract depositing the notes with the bank until MaG-ee’s debts were ascertained. It next alleges the execution of a note by MaGee to defendant, secured by a deed of trust on the lots duly put of record the November before the January MaGee died; that Martin L. Billick was trustee in that deed of trust and that “as trustee” he, without authority, satisfied the same on August 29,1906. Further, that said satisfaction of said deed of trust, the cancellation of the note secured thereby and the execution of the three notes by the Lasleys were severally parts of one transaction; that defendant received nothing on the note of her father, and that the Lasley notes were to take the place of her father’s note. That plaintiff “had actual knowledge of all transactions above set forth at the time thereof and knew the conditions at the time thereof and also at the time he made the purchase;” and, finally, that defendant is willing to pay Higbee back fifty dollars with the “expenses thereto.attached” and deposit such other amounts as the creditors of William MaGee may be entitled to “if they have any rights over her lien . . .’’'The answer, as said, does not refer to the one hundred and seventy-five dollar payment and makes no tender of that. It prays the court to hold the satisfaction of her original deed of trust and the cancellation of her father’s note for naught, to restore the “validity” of her deed and note, to foreclose the deed of trust, sell the lots and out of the proceeds to pay her the amount due on her original note and apply the balance as it should be applied in justice and equity.

As* to the second count it is averred that defendT ant had a lien on the lots prior to the death of William MaGee in the form of a deed of trust executed by him to secure a loan made by her to him.

By reply plaintiff alleged the making of a warranty deed by the MaGee heirs to Mrs. Lasley wherein they covenanted that “the premises were free and clear of all encumbrances,’’ etc.; the payment to defendant, Mary E. Billick, of $175 by the Lasleys and the execution of the three notes by them to her; that Martin L. Billick, as assignee of Mary E. Billick’s original note, in the regular course of business, produced the note to the recorder, had the same cancelled, the fact entered on the margin of the record and the deed of trust securing the same satisfied by a marginal entry, attested by the recorder, which satisfaction has remained until this day with the full knowledge and acquiescence of defendant. Further' replying, plaintiff set up the administration on MaGee’s estate, the petition for sale to pay debts by the public administrator, the order of sale, the sale to plaintiff, its report, its approval and an administrator’s deed following that approval, the purchase of the property in good faith by plaintiff relying upon the record title and that the former deed of trust had been satisfied, all of which, it was averred, constituted an estoppel upon defendant, Mary E. Billick, barring her from asserting any right under her former deed of trust. The reply closed with a general denial.

On pleadings thus outlined the facts narrated in that part of this opinion preceding the statement of the paper issues were established at the trial. The case may proceed also on the theory that allegations of fact in the reply were established.

It may help1 some to give the substance of the oral testimony relating to Billick’s agency. Thus: Defendant put her husband, Martin L. Billick, on the stand. He testified that the cancellation of his wife’s note and his satisfaction of the deed of trust securing the same and the taking of a new deed of trust from the Lasleys with the new notes mentioned were all parts of one transaction. On inquiry by plaintiff’s counsel, the record .runs as follows:

“ Q. Mr. Billick, for whom were you acting in this matter in taking this note and satisfying this record? A. I was acting for the party that owned the mortgage. Q. Who was it? Your wife? A. Mary E. Billick, my wife. Q. And the whole transaction was done by you as her agent? A. Yes, sir.” •

While Mrs. Billick was on the stand in chief in her own behalf this happened:

“By the court: It is admitted here on both sides that the satisfaction on the margin of the record appears on that deed of trust entered by M. L. Billick, assignee; that is conceded and attested to by the recorder of deeds of Schuyler county and the note was presented and cancelled.

“Q. What was your purpose in doing that?- A. For him to collect the money. Q. Did he collect the money fo,r you? A. No, sir. Q. Did you give it to him, send him down here to do that? A. I authorized him to do it. Q1. Did you authorize him to enter'a satisfaction of record or anything of that kind? A. No, sir. !> Q. Has that note ever been paid to you? A. No, sir. Q. .Did you ever get any money on it at all? A. No, sir.”

(Note: It is not clear what the witness meant by her last answer. Her father’s note was for $382. The Lasley notes aggregated; $325. The cash payment to Billick, put beyond question, was $175 and the witness seems to ignore that payment.)

On cross-examination the following appears:

“By Mr. Higbee: Q. Now, Mrs. Billick, when that deed was executed you sent it down here with your husband to close up the transaction with Mrs. Lasley, did you not? A. I sent it down to collect the money. Q. You gave it to your husband to come down here and close the deal with Lasley? A. If they paid the money for it. Q. He was your agent in the matter, was he not? A. Yes, I suppose he was my agent. I expected the money in place of him doing what he did. Q. You authorized him to come down here and close up the transaction with the Lasleys ? A. Yes, sir. Q'. And at the same time he brought down here this three hundred and eightv-two dollar note that you had of your father? A. I suppose he did. I don’t know whether he did or not. Q. You knew that deed of trust had to be released, did you not? A. I don’t know anything about it.”

The case may proceed, also, on the theory that defendant failed to prove the allegation in her answer' that Higbee “had actual knowledge of all transactions above set forth” (i. e. in the answer) “at the time thereof and knew the conditions at the time thereof and also at the time he made the purchase. ’ ’ Plaintiff was put on the stand by defendant, and his conscience was sifted in that regard in chief and again in rebuttal. His knowledge is argued by learned counsel. But that argument travels somewhat on the legs of innuendo and surmise and not, as we can see, on proof of the fact itself or from proof of other facts from which it arises by reasonable inference. The details of the testimony in this particular are omitted. We give our estimate of its weight and tendency from a study and analysis of it.

So, the allegation of the answer that Martin L. Billiek, trustee in the MaG-ee deed of trust, assumed to release the lien of the deed “as trustee,”.is not only not proved, but is wide of the mark. He released ostensibly as assignee, not as trustee, as heretofore pointed out, and he was made assignee of the note in furtherance of an agency and the objects thereof.

On such record we are of opinion the decree should be affirmed. This, because:

(a) An heir, as such, can not set aside a regular administrator’s sale of land, or redeem as a matter of course. The sale in this instance was admittedly regular and the narrations of the administrator’s deed are to be taken as prima facie true. [R. S. 1909, secs. 173, 173; Bray v. Adams, 114 Mo. l. c. 491.] If such heir has a standing in equity to avoid such sale and transfer of his ancestor’s title, it self-evidently springs not merely from his heirship, or as of course, in this jurisdiction, but because of fraud or some irregularity or untoward incident under some recognized head of general equity jurisdiction.

Moreover, it is hornbook or primer doctrine in Missouri that an administrator’s sale, duly approved and allowed to rest unappealed from, as here, can not be attacked collaterally. It is entitled, in the first instance, to the grace of the same convenient and kindly presumptions attending judgments of courts of general jurisdiction and found useful in administering justice in courts — among those presumptions is one that such court proceeds by right and not by wrong.

So, too, the title to real estate is cast by descent on the heir on the death of his ancestor burdened with the paramount right in the creditors of the ancestor to have their debts paid. Under the very old law in Mis souri, as elsewhere, a creditor could pursue the person as well as the property of his debtor. The person is now free from his pursuit (for which grace many of us may be truly glad that we live in these times and not formerly), but he may still in life or death pursue the property and take enough of it to satisfy his claim. Heirs, therefore, take cum onere and sub modo to that extent —the creditor’s right to payment being in the nature of a lien. [Aubuchon v. Aubuchon, 133 Mo. l. c. 265; Rogers v. Johnson, 125 Mo. l. c. 216.]

Quickened by keeping in mind the foregoing general propositions, we come to a closer view of the case.

(b) On the question of agency it is not worth while to waste time on whether Billick had authority to make the escrow agreement or not; for this case does not hinge on that proposition.

Nor is it worth while to discuss the question whether as between the husband and agent, on one side, and Mrs. Billick the wife and principal, on the other, he wronged his wife by assuming to. transcend the bounds of his agency as limited secretly by her and laid himself open to an action for damages on her part; for she is not suing him, nor is he suing her, but the issues here are between her and third parties.

It is clear from all the facts and the very logic of the situation that, as to the public, Billick was his wife’s general agent in the transaction in hand. Agreeably to that idea Billick testified he was her agent and that all the acts he did were done as her agent. When rightly interpreted her testimony agrees with his. True she says she “expected” this, that and the other thing. True she says she did not authorize him to make the release, but it is plain, we think, that her testimony takes root in feminine unfamiliarity with business details, and that .what she meant was that she did not know what he had to do and that she had no one detail in mind, but was interested alone in- results. Look at it. She indorsed the note. She put it in his posses sion. She intrusted him with a deed to he delivered which narrated that it transferred a clear title free of incumbrance. She then sent him on a mission to a far country with a free hand to close up the transaction. Much is necessarily implied in all that. For instance, she must be held to have contemplated, ex necessitate rei, a release of her mortgage by her husband who was clothed by her with the apparent ownership1 of the note for that identical purpose. Not only so, but she received $175 in cash as the result of the very transaction then consummated by her husband. That fact is in the nature of a ratification, and she must reckon with the proposition that to ratify is to authorize, and the other that to ratify estops her.

There is another phase of the matter of sensible significance. Mrs. Billick is presumed to know the rule of law making real property descend to an heir subject to debts. That rule is but fireside doctrine. She could not expect the purchaser to take title from the heirs without the question of the indebtedness of the MaGree estate being held in solution. She sent her husband, an intelligent gentleman and presumably her closest friend, to close the transaction confronting that situation as a fact for him to wrestle with. We draw inferences unfavorable to defendant’s present contention from the foregoing. It seems to us she is drawn within the range of the maxim: Qui facit per alium facit per se.

A third party, dealing with an agent, deals with him with his warrant of authority before him, but where there is.no written warrant of authority and an agent has been clothed with the visible indicia of a general agency, as was the case here, and given apparent power as apparent owner and custodian of a note to release. the lien of a deed of trust securing the note, then those dealing with the agent are not interested in the secret processes of the principal’s mind, but they are interested in the character in which the agent is held out by the principal; for that character is the expression and evidence from which the principal intends the public shall determine his purposes and objects. [Beheret v. Myers, 240 Mo. 58, 144 S. W. l. c. 830.]

We hold Billick had authority to release his wife’s deed of trust. The fact that he did it as assignee was but an innocent expedient to obviate the expense of making and recording a power of attorney — an expedient of everyday use in releasing deeds of trust and cancelling notes.

(e) Defendant’s paper case runs on the theory that plaintiff had knowledge of the fact thát her original note secured by her original d!eed of trust was not paid, that the release of her trust deed was without authority, that the three Lasley notes were taken in lieu of her unpaid original note and so on. On this basis it is argued that as the MaGee heirs inherited subject to the former mortgage and as the creditors of MaGee had no rights superior to that mortgage, therefore, in the eye of equity, her original deed of trust stands as if unreleased and her original note as unpaid, and plaintiff bought subject to her known equities. If she had1 been able to prove Higbee took with knowledge as alleged in her answer, we would have a different case to deal with. But, failing in her proof, the premise on which the argument of her counsel is builded is imaginary, and the conclusion therefor is a non sequitur. When plaintiff bought, the record, of which he must take notice whether he will or not (Seilert v. McAnally, 223 Mo. l. c. 518), showed that the title of MaGee was clear, up to the deed of the heirs, which latter in turn was subject to debts and an administrator’s sale as a matter of law.

(d) Finally it is insisted that plaintiff, a purchaser at an administrator’s sale, bought as if at execution sale subject to the doctrine of caveat emptor and took subject to all defendant’s equities. Contra, it is argued for plaintiff that the sale was a judicial sale and that something is due to that fact as distinguished from an execution sale. Generally, and somewhat loosely speaking, courts have dealt with execution sales as judicial sales; but in strictness there may be a difference, as pointed out by our brother Gantt in Noland v. Barrett, 122 Mo. l. c. 189. The sale in hand was clearly a. judicial sale stricti juris. It was specifically ordered by the court. It was made pursuant to judicial authority. It was approved by the court prior to the execution of the deed, and, to crown all, the very deed was ordered by the court. But we think it unprofitable to be drawn into an exposition of the law in the above regard; for even in an execution sale the purchaser gets title through his sheriff’s deed: as against a deed by the execution debtor unrecorded at the time. [Vance v. Corrigan, 78 Mo. l. c. 95-6; Harrison Machine Works v. Bowers, 200 Mo. l. c. 231-2.] At very best defendant’s released deed of trust could not stand on a better foot than an unrecorded deed.

Something is made of the proposition that it has been held that the indorsement of a check or a promissory note by a wife does not measure up to the stringent standard of married woman’s enabling acts, whereby a husband is shorn of his common law right to reduce the personal property of his wife to his own possession except in the very way pointed out by statute. [R. S. 1909, sec. 8309.] We are referred to cases holding that the blank indorsement of the wife does not fill the .requirement of that statute. James v. Groff, 157 Mo. 402, is a sample of them. But we can not see that the instant case turns on that point. This husband reduced none of his wife’s property to his possession, so far as disclosed,' and the statute can not be borrowed and put to a strange and unheard-of use and office. As in life the shoemaker should stick to his last and the tailor to his goose, so in law statutes should fill only the offices and uses the lawgiver designed for them.

■ We have not followed out all the ramifications of the arguments of counsel pro or con, but have dealt with those propositions we deemed vital. • In laying down rules of law in land litigation care is due to avoid novel propositions in a given case which will draw other cases within the hazard of their new doctrine and thus tend to unsettle titles. Counsel have cited us to no case going as far as they ásk us to go in the case at bar. We know of none.

The premises all considered, the decree was right and it is affirmed.

All concur.