7 S.W. 473 (Mo. 1888), Bunn v. Lindsay

Citation:7 S.W. 473, 95 Mo. 250
Opinion Judge:Brace, J.
Party Name:Bunn, Appellant, v. Lindsay et al
Attorney:Ramey & Brown and J. F. Harwood for appellant. S. H. Corn and T. E. Turney for respondents.
Judge Panel:Brace, J. Ray, J., absent.
Case Date:March 19, 1888
Court:Supreme Court of Missouri

Page 473

7 S.W. 473 (Mo. 1888)

95 Mo. 250

Bunn, Appellant,


Lindsay et al

Supreme Court of Missouri

March 19, 1888

Appeal from DeKalb Circuit Court. -- Hon. Joseph P. Grubb, Judge.


Ramey & Brown and J. F. Harwood for appellant.

(1) Appellant having paid off the mortgage to the St. Joseph Building Company at the request of respondent Lindsay, and pursuant to an express understanding with Lindsay that he should be secured by a first lien upon the land, which should take the place of, and be equal in extent to, the lien so paid off, and having failed to secure such lien on account of mere oversight or mistake in not having discovered the Paramore judgment, he will be relieved in equity by being subrogated, to the extent of such payment, to the original lien of the building company. Building Ass'n v. Thompson, 32 N.J.Eq. 133 and cases cited; Payne v. Hathaway, 3 Vt. 212; Dixon on Subrogation, 165; Bright v. Boyd, 1 Story, 478; S. C., 2 Story, 607; Valle's Heirs v. Fleming's Heirs, 29 Mo. 152. (2) Under the circumstances of this case the deed of trust executed by Lindsay to appellant will be held, in equity, to relate back to its date which is concurrent with the first act in the negotiation which led to its complete execution by delivery. Jackson v. Ramsey, 15 Am. Dec. 242, and note. (3) The respondent Lindsay was, as against the judgment and execution of Paramore, entitled to a homestead in the land in controversy, which passed to appellant by the deed of trust. The sheriff having failed to set off such homestead the execution sale is void as to appellant and should be set aside. Vogler v. Montgomery, 54 Mo. 577; Beckman v. Meyer, 75 Mo. 333; State ex rel. v. Mason, 88 Mo. 222; McClary v. Bixby, 35 Vt. 254; Herman on Ex., sec. 107, p. 123, and cases cited. (4) The defendant Leisenrig is, under the evidence, chargeable with notice of all of appellant's rights. Leeper v. Bates, 85 Mo. 224; Leavitt v. Laforce, 71 Mo. 353; Mabary v. McClurg, 74 Mo. 575; Speck v. Riggin, 40 Mo. 405; Bank v. Delano, 48 N.Y. 326, and cases cited.

S. H. Corn and T. E. Turney for respondents.

(1) The finding of the court below upon the facts, being in favor of respondents and supported by the testimony, will be respected by this court; and this court will not reverse the judgment unless the court below erred in matter of law. Bank v. Murry, 88 Mo. 191; Anderson v. Griffith, 86 Mo. 549. (2) The facts upon which appellant predicates his first point are not supported by the testimony. Lindsay never requested appellant to pay off the mortgage of the St. Joseph Building Company, nor was there any understanding that he should do so, and appellant, in fact, never did pay it. The appellant is not entitled to be subrogated to the rights of the St. Joseph Building Company prior to the extinction of its lien, under the facts in this case. Sheldon on Subrogation, secs. 3, 240-1-2-3, p. 278, et seq; Wade v. Baldwin, 40 Mo. 486; Wooldridge v. Scott, 69 Mo. 669; Sharp v. Collins, 74 Mo. 266; Price v. Courtney, 87 Mo. 395; Stearns v. Godfrey, 16 Me. 158; Woollen v. Hillen, 9 Gill [Md.] 185; Small v. Stagg, 95 Ill. 39; Sanford v. McLean, 3 Paige, 117; Downer v. Miller, 15 Wis. 612; Barber v. Lyon, 15 Ia. 37; Gadsden v. Brown, Speers' Eq. [S. C.] 37; Webster's Appeal, 86 Pa. St. 409; Shinn v. Budd, 14 N.J.Eq. 234; Woods v. Gibson, 17 Ill. 218; Kitchell v. Mudgett, 37 Mich. 82; Guy v. DuUprey, 16 Cal. 195; Commonwealth v. Canal Co., 32 Md. 501. (3) Appellant's grievances are the result of his own negligence. Paramore was a creditor of Lindsay of equal merit with Bunn. A court of equity will not deprive the former of his legal rights, in order to relieve the latter of the result of his own negligence. Conner v. Welch, 51 Wis. 431; 1 Story Eq. Jur. [6 Ed.] sec. 146, and note; Brown v. Fagan, 71 Mo. 563; Sheldon on Subrogation, sec. 43, p. 48. (4) The facts of this case furnish no ground for the application of the doctrine of "relation." It is only when a party has become entitled to the fruits of a deed at a time anterior to its execution that the deed, when executed, will relate back to protect the title of the grantee to the time when his rights to the thing granted accrued. Appellant was not entitled to his deed of trust until he had parted with his money; for that reason its execution was delayed until January 23, 1875. The doctrine of relation operates only as to parties and privies to the deed, and never...

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