Blackburn v. Tweedie

• Decision Date: 31 May 1875
• Citation: 60 Mo. 505
• Parties: THOMAS BLACKBURN, Respondent, v. DAVID TWEEDIE, Appellant.
• Court: Missouri Supreme Court

60 Mo. 505

THOMAS BLACKBURN, Respondent,

v.DAVID TWEEDIE, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Carroll Circuit Court.

L. H. Waters, for Appellants.

I. If it may be implied from a written agreement, that the land is to be chargeable with, or security for a debt, it amounts to an equitable mortgage, (2 Sto. Eq. Jur., § 1020, 1 Hil. Mortg. 647, § 1; Chase vs. Peck, 21 N. Y., 583; Neil. Eq. Mortg., 218, n.; Ad. Eq., 313 & n.; Russell vs. Russell, 1 Lead. Cas. Eq., 2 Am. Ed., 499, and authorities cited at the end of note,) and the mortgage may arise without a deed or special contract. (4 Kent. Com., 11 Ed., 164.)

Ray & Ray, with W. P. Hall, for Respondent.

I. The instrument does not constitute an equitable mortgage. It neither confers a lien nor creates a title to the land. The possession was not taken and delivered under the contract, but existed before.

II. The trust, if any, is at most, a personal trust reposed in the good faith of John Tweedie, and not a property trust fastened by its terms upon the land itself and following it, into whose hands soever it may pass.

III. But, if it should be held to be an “Equitable Mortgage” then it is not good against the plaintiff unless he had “actual notice” thereof, at the time of his purchase. And in this case he had no notice actual or constructive.

WAGNER, Judge, delivered the opinion of the court.

This was an action of ejectment in the ordinary form to recover possession of certain lands described in the petition.

In addition to a denial of the averments in the petition, the answer set up an equitable defense and claimed that defendant went into possession of the premises, under a written agreement made with one John Tweedie who was plaintiff's grantor and owned the lands at the time, and that by that agreement, defendant was to retain possession till John Tweedie sold the same and paid him the sum of nine hundred dollars, and that he was to have the use of the lands in lieu of interest on the sum due him; that in pursuance of that agreement he took possession of the land and remained in possession till the commencement of this suit.

The agreement relied on stated that John Tweedie agreed to pay David Tweedie the sum of nine hundred dollars, on the conditions that whenever the land occupied by David Tweedie (which was the land in controversy) was sold by John Tweedie to enable him to realize the above amount of nine hundred dollars, then David Tweedie agreed to give to John Tweedie possession of the land occupied by him. David Tweedie agreed to help put up the fence around the land and this work and occupying the land, were to be an off-set to the interest on the nine hundred dollars.

The cause was tried before the court sitting as a jury, and for the plaintiff the court declared the law to be, that the agreement was not such an instrument as gave, or could confer upon David Tweedie any lien on the land or interest thereon, and that it was no defense to plaintiff's right of recovery.

The...