Brown v. Brown

• Citation: 27 S.W. 552,124 Mo. 79
• Parties: Brown v. Brown, Appellant
• Decision Date: 09 July 1894
• Court: Missouri Supreme Court

27 S.W. 552

124 Mo. 79

Brown v. Brown, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from Ralls Circuit Court. -- Hon. I. C. Dempsey, Special Judge.

Reversed and remanded.

D. H Eby and J. Thad Ray for appellant.

(1) The court erred in applying the credit of $ 695.50 (representing the wheat transaction) on the purchase price of the farm. The farm in question not being the separate estate of the respondent, her husband was entitled to the possession of rents, profits and proceeds of the same, and having reduced the proceeds of said wheat crop to his possession by sale to the mill he had the right to apply the same on any indebtedness from him to appellant. Dillenberger v Wrisbery, 10 Mo.App. 465; Tillman v. Tillman, 50 Mo. 40; State ex rel. v. Macklin, 41 Mo.App. 335; Cooper v. Ord, 60 Mo. 420; Burns v Bangert, 16 Mo.App. 22. The rule enunciated in the above cases was not changed by the act of March 25, 1875, page 68. Burns v. Bangert, supra. (2) Should said act be held applicable to this case, then this credit of $ 695.50 should be allowed on said store account where appellant at the time applied same. Leete v. Bank, 115 Mo. 184. (3) The court erred in holding that appellant was not entitled to interest on the deferred payments. Appellant applied the payments on the open account between him and his brother. When a debtor owing several debts makes payment to a creditor, the creditor has a right to apply it to whatever debt he pleases. Shortridge v. Pardee, 2 Mo.App. 363; Leete v. Bank, 115 Mo. 184. (4) The court erred in holding that appellant was not entitled to interest on deferred payments on purchase price after same became due. (5) The court erred in excluding the tax receipt offered in evidence by appellant. A vendee of real estate in possession under a contract of sale is liable as between himself and the vendor, for all taxes assessed after the commencement of his possession, and the fact that by the contract the vendor is bound to make him a warranty deed upon payment of purchase money does not change this rule. Anderson's Dict. of Law, title, Subrogee, p. 985; Farber v. Purdy, 69 Mo. 601; Anderson v. Harwood, 47 Mo.App. 660. Appellant in order to protect his lien as vendor was compelled to pay such taxes, and it would be inequitable to permit respondent to redeem without refunding the amount so paid. Johnson v. Goldsby, 32 Mo.App. 560; Wolf v. Walters, 56 Mo. 295; Bispham's Prin. of Equity [4 Ed.], sec. 151, p. 197.

James P. Wood for respondent.

(1) There was no error in the finding of the chancellor that the $ 695.50, proceeds of the sale of a crop of wheat, was paid to appellant as a part of the purchase price of the farm. (2) Both parties testified that the contract was that respondent was to have her own time in which to pay for the farm and that no interest was to be charged on the deferred payments. The payments were due at the convenience of respondent, or if this be not true they were certainly not due until a demand was made. The finding of the chancellor in this regard was in strict accord with all the evidence and is therefore right. Section 5972, Revised Statutes, 1889, has no application to the facts in this case. (3) There was no error in refusing to admit the tax receipt in evidence. Appellant testified that he paid this item of $ 15.20 taxes for the year 1876, but he did not state that he was ever requested to pay it. The payment by him, if ever made, was voluntary; the respondent, as vendee in possession under her contract of purchase, was liable for all taxes levied against the farm; it was not shown or attempted to be shown that this item of taxes was a valid existing lien on the land in question, or that appellant was compelled to pay the same to protect his rights; his payment of this item being entirely voluntary on his part he was not entitled to introduce the receipt in evidence and the ruling of the court in this regard was not erroneous.

OPINION

Macfarlane, J.

This is a suit for the specific performance of a contract for the sale of a farm in Ralls county. Plaintiff is a married woman and charged in her petition that she purchased the farm of defendant by written contract, on the twelfth day of August, 1871, for which she agreed to pay $ 3,000, of which $ 1,500 was to be paid during the year 1872, but no time was fixed for the payment of the balance; that defendant agreed, when the whole amount should be paid, to make her a deed to the land, and that it was expressly agreed that no interest should be exacted on these payments.

She charged further that she paid on January 29, 1872, the sum of $ 1,500 as agreed, and further payments as follows: March 2, 1873, $ 425; March 1, 1875, $ 200; August 5, 1875, $ 695.50, and July 3, 1891, $ 179.50, making a total of $ 3,000. The contract was alleged to have been lost.

Defendant by answer admitted the execution of the contract, that its terms and conditions were substantially as charged, and that the payments of $ 1,500 and $ 179.50 were made but denied any other payments.

Defendant thereupon by way of cross petition charged the making of the same contract, admitted the two payments, and charged that the balance, viz., $ 1,320.50 was unpaid. He further charged that, after making the contract and after plaintiff went into possession thereunder, in order to protect the property and preserve his lien, he paid taxes on the land aggregating the sum of $ 246. He asked a foreclosure of his vendor's lien for the amount due and interest including the amount of taxes paid.

Upon a trial, the court found that there was due defendant on the contract the sum of $ 625 without interest, and declared a lien upon the land for the amount, but made no order for a foreclosure and sale.

The principal question turned upon the finding of the court as to the amount that was due upon the contract. The first payment of $ 1,500 and the last one of $ 179.50 were not disputed. Plaintiff claimed three other payments, viz: March 2, 1873, $ 425; March 1, 1873, $ 200; August 5, 1875, $ 695.50. The last payment was credited by the court upon the contract. The other two the court permitted defendant to apply as a credit upon an account due from the husband of plaintiff to defendant. Plaintiff does not appeal and can not complain of the action of the court in this particular.

I. It is not disputed that the item of $ 695.50 was the proceeds of wheat grown upon the farm. There can be no doubt that the money realized from the sale of the wheat belonged to the wife, and she therefore had the right to direct its application to the payment of her debt. R. S., secs. 6868 6869. That she did direct her husband to apply it to the debt due for the purchase of the farm, is without doubt under the evidence. The husband, if he had desired to do so, had no right to divert the money from the purposes to which the wife directed that it should be applied. The rule is also well settled that the debtor has the right to direct the application of payments to any one of several debts, and it is only when no direction is given by him that the creditor can make the application. Beck v. Haas, 111 Mo. 264,...