Bronson v. Wanzer

• Decision Date: 30 April 1885
• Citation: 86 Mo. 408
• Parties: BRONSON et al. v. WANZER et al., Appellants.
• Court: Missouri Supreme Court

86 Mo. 408

BRONSON et al.

v.WANZER et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Dysart & Mitchell and C. P. Hess for appellants.

(1) The court erred in denying a jury; the issue was one at law. Henderson v. Dickey, 50 Mo. 161; Crowe v. Peters, 63 Mo. 429. So the court erred in subsequently withdrawing the issues and discharging the jury. (2) The court erred as to defendant, Wells, in receiving the testimony of D. A. Patton. It was a conversation of Wanzer's in the absence of Wells, long after he had purchased the property, and the court received it as against both the defendants without qualification; and Bronson was permitted to testify to the same conversation. (3) The court should have received the testimony of the offer by the defendants to return and re-deed the property to the plaintiffs, if they would return and pay back the amount paid to them by Wanzer. (4) The court erred in finding against Wells at all. Taking a deed even expressed on its face to be subject to a mortgage is not an undertaking to pay the mortgage. He is only liable to pay a prior mortgage when the deed so stipulates and then it is a simple debt or undertaking to be enforced in assumpsit by the mortgagee. Duncan v. Baker, 72 Mo. 469; Helm v. Vogel, 69 Mo. 529; Cox v. Esteb, 68 Mo. 110. (5) The court erred in permitting Macon county to interplead and claim the judgment to be rendered after the evidence was closed. Besides, the decree was not responsive to the allegations of the petition. Crowe v. Peters, 63 Mo. 429; Cox v. Esteb, 68 Mo. 110; Clements v. Yates, 69 Mo. 625. (6) The court erred in declaring a vendor's lien in favor of Bronson. Emison v. Whittlesey, 55 Mo. 254.

Berry & Thompson for respondents.

(1) The decree of the lower court should be affirmed. It was understood by the Bronsons and by Wanzer at the time that the land was covered by the county's mortgage and hence the insertion in Wanzer's deed “subject to any incumbrance of the county of Macon.” Wanzer under the facts still owes Mrs. Bronson the remainder of the purchase money. (2) Wells, when he bought, had such knowledge of the facts as to put a prudent man on inquiry as to the incumbrance on the land. (3) The court properly treated the petition as a bill in equity to enforce a vendor's lien for purchase money. (4) Mrs. Bronson was not bound by the agreement made by her husband with Wanzer, by which the latter was to pay her note to the county. She can ratify such acts of her husband as her agent as she chooses. Hall v. Callahan, 66 Mo. 316.

RAY, J.

In 1876 Martha H. Bronson, wife of Samuel P. Bronson, owned in her own right the northwest quarter of the southeast quarter of section twenty-five, township fifty-seven, of range fourteen, in Macon county, Missouri. On the fifth day of April, 1876, Mrs. Bronson borrowed five hundred dollars of Macon county, from the school fund, and she and her husband then executed and delivered their note therefor to Macon county, and at the same time executed and delivered a deed of trust intending thereby to convey said land in trust to secure said note, but by mistake the land was described in the deed of trust as the northeast instead of the northwest quarter. In November, 1876, the Bronsons sold and conveyed the land by correct description to appellant, Wanzer, for a consideration of eight hundred and fifty dollars.

The deed to Wanzer was a general warranty in form, and specially undertook to warrant and defend the title against all claims and demands, “except taxes due and any incumbrance to the county of Macon.” This deed was duly acknowledged and recorded the same day. Afterwards, on the tenth day of April, 1878, defendant, Wanzer, sold and conveyed said land to defendant, George Wells, by warranty deed duly recorded, for the consideration of four hundred dollars. This suit is to recover of said Wanzer five hundred dollars and interest, balance of the purchase money alleged to be due and unpaid, upon the sale of the premises by plaintiffs to him, and to enforce the vendor's lien against the property for the balance of the purchase money found to be due.

The petition sets out the foregoing sales, alleges that prior thereto, on the fifth day of April, 1876, the plaintiffs borrowed of Macon county a sum of money, and to secure the payment thereof gave a deed of trust upon what they supposed to be the same property and real estate now in controversy, but that by mistake the numbers and description inserted in said deed of trust were the northeast of the southeast of twenty-two, fifty-seven, fourteen, instead of the northwest of the southeast of twenty-two, fifty-seven, fourteen, the latter being the property intended to be conveyed by the said deed of trust; that at the time of the sale to Wanzer, plaintiffs had not discovered the error, but both believed the county debt to be a lien on the property, and so informed Wanzer, and that the county's incumbrance thereon was mentioned in the deed so delivered to him; that at the time of the sale to Wanzer there was unpaid and due of the Macon county debt about five hundred dollars with some interest; that Wanzer paid plaintiffs on said land two hundred and eighty dollars, and assumed and promised to pay off the county debt, as the balance of the purchase money; that Wanzer's sale and conveyance to Wells was only pretended, and made to cheat and defraud plaintiffs, and that Wells accepted his deed from Wanzer with full knowledge of all the facts that neither Wanzer nor Wells had paid the five hundred dollars due the county, nor any part thereof, but the same remained unpaid and that the plaintiffs were still liable therefor to Macon county.

The defendants then answered separately, putting in issue all allegations of the petition, except the relationship of plaintiffs and the several conveyances to the defendants.

At the trial the defendants claimed that this was an action at law for the recovery of money, and demanded a jury. But the court held the case to be one in equity and refused a jury except upon issues. It ordered a jury for the purpose of trying some four several issues, all of which were, however, withdrawn from the jury at the close of the evidence, except issue numbered four, as to whether or not the defendant Wells, at the time of his purchase of the land in controversy from the defendant Wanzer, had notice that said defendant Wanzer was owing any part of the purchase money on said land, which issue number four was submitted. After having been instructed by the court, on its own motion, upon said issue, the jury retired to consider of their verdict and afterwards returned into court and reported that they had failed to agree, and the court thereupon discharged the jury and...