Atkinson v. Angert

• Decision Date: 31 October 1870
• Citation: 46 Mo. 515
• Parties: SARAH A. ATKINSON, Respondent, v. HENRY ANGERT, Appellant.
• Court: Missouri Supreme Court

46 Mo. 515

SARAH A. ATKINSON, Respondent,

v.HENRY ANGERT, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

Cunningham & Edwards, for appellant.

If any one interested in an estate, as heir or purchaser, pay the encumbrance and discharge the mortgage, he acquires an equitable lien upon the estate. (1 Washb. Real Prop. 216, § 21; 1 Scrib. Dow. 510, § 22; Chappell v. Allen, 38 Mo. 223; Furnold v. Bank of the State of Missouri, 44 Mo. 336.) And where the purchaser of an equity of redemption pays off an outstanding mortgage made by his grantor, in which his wife had released her dower, the mortgage will not be deemed to merge; and where one of several persons interested in a mortgage estate redeems it by paying the whole debt, he does not thereby release the other portions of the estate from the charge, but becomes an equitable assignee of the mortgage as to the parties, and may hold as mortgagee until the respective owners thereof shall contribute pro rata toward the mortgage debt, according to the value of their respective shares of the estate. (2 Washb. Real Prop. 166, 3d ed.; Sto. Eq., § 1023; 4 Kent's Com. 163; 5 Pick. 140.) If any one interested in the estate, as heir or purchaser, discharges or redeems the mortgage, he thereby acquires an equitable lien on the estate, which he may hold against the widow till she contributes her proportion of the charge, according to the value of her interest. (1 Washb. Real Prop., supra;Eaton v. Simonds, 14 Pick. 98; Swaine v. Perine, 5 Johns. Ch. 509; Peltz v. Clarke, 5 Pet. 481.) The owner of any interest or fractional interest, however small, of the mortgaged premises, may redeem; but, in order to do so, he is obliged to pay the whole debt, and by such payment he will become substituted in equity in place of the mortgagee. (2 Washb. Real Prop. 164, §§ 19-21; 1 Scrib. Dow. 515, § 30; Chappell v. Allen, 38 Mo. 223.)

H. C. Lackland, for respondent.

I. In the case at bar, the deed of trust was paid off and extinguished, and became dead immediately, and the widow's relinquishment died with it long before the death of the husband.

There never was any assignment of, or intention to assign, the deed of trust, and the title to the land was no more affected by it than if it had never existed. (Eaton v. Simonds, 14 Pick. 98.)

II. It is impossible to apply the doctrine of subrogation as against the widow in such a case, under our statute law. (Jones v. Bragg, 33 Mo. 337.)

WAGNER, Judge, delivered the opinion of the court.

The facts in this case are similar to those in the case of Atkinson v. Stewart, 46 Mo. 510, except that in Stewart's case the deed of trust was to secure the payment of purchase money, and was paid off and discharged by the assignee out of the assets of the estate of the husband. In this case the deed of trust signed and acknowledged by the wife was to secure a certain sum of money borrowed by the husband, and the purchaser at the assignee's sale bought the property subject to the encumbrance, and paid off the same during the lifetime of the husband, and entered satisfaction on the record. After payment of the debt and acknowledgment of satisfaction on the record, the purchaser at the assignee's sale conveyed the property to the defendant, who is now resisting this suit. The question is whether the payment of the debt and entry of satisfaction by the purchaser was such an extinguishment as enabled the widow to claim her dower.

There may be cases in which the purchaser of an equity of redemption, by paying the mortgage debt and taking an assignment of the mortgage, can protect himself against the demand ror dower, and the widow will only be allowed to come in by proceedings in equity, and contributing her proportionate share toward the extinguishment of the legal charge. But in the present case the purchaser, without any assignment or attempt to keep the mortgage alive, paid it off absolutely and unqualifiedly; and as no mistake is alleged or pretended in the cancellation or entry of satisfaction, it was effectually dead and incapable of being used for any purpose.

The case of Eaton v. Simonds, 14 Pick. 98, is in point. It was a bill in equity, and the complainant had joined with her husband in mortgaging a portion of his estate. The equity of redemption was afterward sold to the defendant on an execution issued against the mortgagor, and the defendant during the lifetime of the mortgagor having paid the amount due to the mortgagee, claimed an assignment of the mortgage; but the mortgagee declaring that an assignment would be unnecessary, the mortgage was discharged upon the margin of the record in the registry of deeds.

It was held that this discharge was an extinguishment of the mortgage and not an equitable assignment, and that the...