Adams v. Buchanan

• Decision Date: 31 October 1871
• Citation: 49 Mo. 64
• Parties: INCREASE ADAMS, Respondent, v. THOMAS G. BUCHANAN et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 64

INCREASE ADAMS, Respondent,

v.THOMAS G. BUCHANAN et al., Appellants.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Lincoln Circuit Court.

A. H. Buckner, for appellants.

Defendants purchased without any notice of plaintiff's lien, and could not be affected by it. The deed was sufficient to pass title, notwithstanding the lack of the clerk's indorsement of the sheriff's acknowledgment. (Scruggs v. Scruggs, 41 Mo. 242; Crowley v. Wallace, 12 Mo. 145.) Plaintiff's obtaining judgment against defendants' property, real and personal, was most emphatically a taking of other security, which discharged his lien. (Gilman v. Brown, 1 Mason, 212; 1 Sto. Eq. 480; 4 Kent's Com. 151-3; Cowl v. Varnum, 37 Ill. 181; 27 Ill. 433; Trustees of Schools v. Wright, 11 Ill. 606; 3 Kansas, 172.) Plaintiff is estopped from claiming his lien. His deed to defendant is on record, and after causing a lien to attach to it as the land of the latter, he cannot now say that it is not defendants' land. (Landsdorf v. Field, 36 Mo. 440.)

This suit was commenced long after defendants had brought a petition to set aside Adams' deed from the sheriff in 1862 (46 Mo. 95) for fraud in Adams, and he has waived his lien by lapse of time. (11 Ill. 606; Scruggs v. Scruggs, 41 Mo. 242; 4 Kent's Com. 151-3; Brown v. Gilman, 1 Mason, 224; 2 Sto. Eq. 480, note; Lansdorf v. Field, supra; 37 Ill. 185; 11 Ill. 606; 3 Bibb, 184; 27 Ill. 433.)

Henderson & Dyer, and Fagg, for respondent.

I. Plaintiff's taking of the note was no waiver of the lien without some other act constituting a waiver. (Marsh v. Turner, 4 Mo. 253; Delassus v. Poston, 19 Mo. 425; 1 Johns. Ch. 309; 2 Sto. Eq. Jur. 1217, 1224-5.)

II. Plaintiff's attachment against defendant did not waive it. (Delassus v. Poston, supra;Clark v. Hunt, 3 J. J. Marsh. 558.)

III. His purchase of the land under the Bacon and Milroy execution did not affect his lien. (Delassus v. Poston, supra.)

IV. The lien not only exists against the vendee, but it exists against volunteers and purchasers with notice. It exists against purchasers without notice who have not paid the purchase-money. It exists against assignees for the benefit of creditors, and it will prevail against a judgment creditor both before and after conveyance to the vendee. (2 Sto. Eq. Jur., § 1228; Bailey v. Greenleaf, 7 Wheat. 56; Mackreth v. Simmons, 15 Ves. 354; 4 Kent's Com. 153-4, notes c and a; 2 Sto. Eq. Jur., § 1229.)

V. A judgment creditor can have no equity against the vendor, even though he may have purchased at execution sale, for he occupies simply the position of the judgment debtor.

VI. The sheriff's deed to Turner and Knight, being without the certificate of acknowledgment, cannot be used to show title in them under a sheriff's sale. (Ryan v. Carr, 46 Mo. 483.) The case of Scruggs v. Scruggs, 41 Mo. 242, has no bearing on this point. In that case the acknowledgment was in due form and indorsed on the deed, and the party claiming under the deed could not see that the record was right.BLISS, Judge, delivered the opinion of the court.

The plaintiff brings his suit to enforce a vendor's lien, and shows that in 1859 he sold certain real estate in Lincoln county for about $5,000 to defendant Buchanan, who paid a portion of the purchase-money, and in December, 1859, executed for the balance his promissory note for $3,176, upon which $850 was afterward paid. In 1861, Buchanan having sold a portion of the land, failed and left the country. Attachment proceedings were at once instituted against his property by defendants Turner and Knight, and Thomas Turner and H. J. Pollard, and also a subsequent attachment was sued out by the plaintiff. Mr. Knight bid in the property upon sale under the judgment rendered in the attachment proceedings, and thus cut off the plaintiff from any relief under his attachment; and it also appears that at a sale upon a judgment in favor of Milroy and Bacon against Buchanan and the plaintiff, of a date prior to the attachments, the plaintiff had bid in the same property. But the sale to him was set aside and the case came here upon error, and is reported in 46 Mo. 95. What became of that judgment does not now appear, and it is only exhibited in this record to show that Adams, by bidding in the property himself upon a judgment that would be subordinate to his lien, if one existed, as well as by suing out his attachment, has discharged his lien, and cannot now prosecute it. We have, then, to consider whether these acts of the plaintiff will have that effect.

This court has adopted the general law of the States and of England in regard to vendors' liens, and as between vendor and purchaser has uniformly given it effect. The equity has been denied in some of the States, and in others looked upon with disfavor, upon the ground that it was the policy of the law that all liens and encumbrances should be spread upon the record; and in this view, and in favor of creditors who have trusted their debtor in ignorance of the lien, not altogether without reason. The leading principles governing it are stated with great clearness and terseness in the first paragraph of Judge Gamble's opinion in Delassus v. Poston, 19 Mo. 425, and so far as they are applicable I will apply them to the present case:

First, there was no original waiver of the lien, for it is clearly settled that the taking a note by the vendor has no such effect. Yielding this, the defendants insist, second, that the lien was discharged by the acts of the plaintiff; and if not, that it ceased in favor of execution creditors who have purchased at their own sales without knowledge of its existence.

If the lien was waived at the original sale of the property, it was because the acts of the vendor indicated that he did not design to retain it. Thus, if he took other securities, the inference is that he intended to look to them and not the land. (Delassus v. Poston, supra;Sullivan v. Ferguson, 40 Mo. 79; Durette v. Briggs, 47 Mo. 356; Gilman v. Brown, 1 Mason, 212; 4 Wheat. 291; Fish v. Howland, 1 Paige, 20.) Judge Story (Sto. Com., § 1226) states the rule differently from its general understanding, conforming to the language of certain eminent English jurists quoted in the notes. In England, in the cases noted, it has been held that if other security is taken, it is incumbent on the vendor, or person interested in destroying the lien, to show affirmatively that the vendor agreed to rest upon the security alone. But, on the other hand, our courts adopt the rule quoted in Delassus v. Poston, from Walworth, chancellor, that the taking of other security shall be considered as evidencing an intention to waive the lien, unless there is an express agreement that it shall be maintained.

In the case at bar no other security was taken, and I only refer to the established rule as aiding us to construe the subsequent acts of the plaintiff. Did, then, the steps taken by plaintiff to collect his debt show any design to abandon his claim upon the land? for if so, in the light of the established rule, he must be considered as having done so without affirmative proof of any agreement to surrender it.

It should be observed that the lien cannot be predicated upon any knowledge of its existence, nor can its abandonment be predicated upon acts that merely indicate ignorance of its existence; for, in the language of Walworth, chancellor, in Fish v. Howland, “if the actual intention of the parties was to govern the decisions of the court, the lien would seldom be sustained; for it is probable that not one person in a hundred who conveys or purchases real estate is aware of the existence of such a principle of equity.”

It is in evidence that the plaintiff, being bound with Buchanan upon a debt that had been reduced to judgment against both of them, for the purpose of procuring the land at a nominal sum, and thereby making it compensate him for the present indebtedness, bid it in for the amount of the judgment; but the sale, as we have seen, was set aside in consequence of his contrivances to prevent competition. The attempt thus to provide for this indebtedness, as well as for his liability upon the judgment, may indicate ignorance, but has no tendency to show that he looked to other securities, or designed to surrender his lien.

It is also shown that the plaintiff attached the property upon this and some other debts, and it is urged that this would operate as a surrender of the lien. I do not see how it could have that effect. It has always been held that taking a bond or...