Bunn v. Lindsay

• Decision Date: 19 March 1888
• Citation: 7 S.W. 473,95 Mo. 250
• Parties: BUNN v. LINDSAY et al.
• Court: Missouri Supreme Court

7 S.W. 473

95 Mo. 250

BUNN v. LINDSAY et al.

Supreme Court of Missouri.

March 19, 1888.

1. SUBROGATION — LIEN OF DEED OF TRUST — EXTINGUISHMENT BY PAYMENT.

Defendant A. gave a certain promissory note and a deed of trust on certain lands to secure its payment. Shortly afterwards he executed another note, upon which defendant B. obtained judgment. After the recording of this judgment, plaintiff paid the balance of A.'s first note, and secured from him a new deed of trust on the same land. B. then took out an execution, and levied upon and sold the land in question. Held, that plaintiff has no right of subrogation to the lien which existed on the land prior to the judgment, that lien being absolutely extinguished by plaintiff's payment.¹

2. JUDGMENT — LIEN OF RECORD — RELIEF AGAINST IGNORANCE OF — EQUITY.

The fact that a party is ignorant of a recorded judgment is due to his own negligence, against the consequences of which a court of equity cannot relieve him by interfering with the rights of others who are without fault.

Appeal from circuit court, De Kalb county; Jos. P. GRUBB, Judge.

Suit brought by Thomas J. Bunn against John M. Lindsay, Gideon C. Paramore, and James B. Leisenrig, at April term, 1884, of De Kalb county circuit court. The court found the issues for defendants, and dismissed the bill, from which decision plaintiff appeals.

Ramey & Brown and J. F. Harwood, for appellant. S. H. Corn and T. E. Turney, for respondents.

BRACE, J.

On the 5th day of September, 1873, John M. Lindsay, being the owner in fee of the undivided half of section 8, township 59, range 32, in De Kalb county, executed his note of that date to the St. Joseph Building Company for the sum of $6,000, and on the same day, with his wife, executed a deed of trust on said undivided half of said section to secure the payment of said note, which was recorded on the 9th day of September, 1873, in said county. On the 1st day of December, 1873, the said Lindsay executed his note, payable to the order of Joel T. Smith, six months after date, for the sum of $1,750. About the 1st of July, 1874, Lindsay applied to one House, at Cameron, Mo., who was the agent of plaintiff, a money lender, then resident in Bloomington, Ill., for a loan of $2,500 to pay off said deed of trust. House, at the instance of plaintiff, examined the records of De Kalb county, made an abstract of Lindsay's title to said real estate, showing that there were no incumbrances on said property except said deed of trust, and forwarded it to plaintiff, informing him that the money to be borrowed was to be used in paying off the debt secured by said deed of trust. Thereupon plaintiff prepared three bonds or notes and a deed of trust on said real estate to be executed by said Lindsay, each bearing dates the 1st of July, 1874; two of the notes for $1,000 each and one for $500, payable to plaintiff on the 1st of July, 1879, at the Mercantile National Bank, at Hartford, with interest from date, at the rate of 10 per cent. per annum, payable semi-annually on the first days of January and July, the interest to bear the same rate of interest as the principal after due, as evidenced by 10 interest coupons attached to each of said notes or bonds, and all secured by said deed of trust to one Powell, with power of sale in case of any default in payment of principal or interest, and forwarded said notes and deed of trust to his said agent to "complete the transaction," who thereupon entered into negotiations with the building company to pay off their claim. On the 12th of December, 1874, Gideon C. Paramore recovered judgment in the circuit court of Clinton county against Lindsay on the Smith note for $1,972, and on the 15th of December, 1874, filed a transcript of said judgment in the office of the clerk of the circuit court of De Kalb county, which was thereupon duly docketed and recorded by said clerk. On the 23d of January, 1875, Lindsay signed the bonds, and he and his wife executed and acknowledged the deed of trust prepared by plaintiff, and the same were delivered to House, his agent, who thereupon placed plaintiff's draft on New York for $2,500 in the Cameron Deposit Bank, to be delivered to the St. Joseph Building Company upon the surrender by them of Lindsay's note, and a release of their trust deed. On the 25th of January, 1875, the building company, in Buchanan county, executed and acknowledged a release and satisfaction of their trust deed to Lindsay in consideration of the sum of $2,510 paid by him, and on the 28th of January, 1878, this deed of release and Lindsay's deed of trust to Powell to secure plaintiff's bonds, was at the same time filed for record in the office of the recorder of De Kalb county. In March, 1876, Lindsay, who before that time had been residing on a 40-acre tract of land adjoining said section 8, moved into a house on said section which he had previously built, and continued to reside there from that time with his family until 1880, when he removed from the premises, and left the state. On the 6th of December, 1877, Paramore caused an execution to be issued on his judgment, which, on the 10th of December, 1877, was levied on all his interest in said real estate, and by virtue thereof the same was, on the 8th of October, 1878, sold, and he became the purchaser thereof at the price of $205 and received the sheriff's deed therefore. Notice was given at the sale that Lindsay claimed a homestead in the land, and that plaintiff claimed a lien upon the land superior to Paramore's judgment to the amount of $2,500, which he had paid to extinguish the St. Joseph Building Company's lien for $6,000.

The testimony tended to show that at the time of the sale the land was worth $10 per acre. At the October term, 1878, of the Clinton circuit court, to which the execution was returned, Lindsay filed a motion to set aside the sale for the reason that a homestead in said land had not been set off to him by the sheriff prior thereto, which motion was by him withdrawn at the October term of said court, 1879. On the 10th of September, 1879, Paramore, by general warranty deed, conveyed said land to the defendant James B. Leisenrig, for the expressed consideration of $2,500. At the April term, 1884, of the De Kalb circuit court plaintiff instituted this suit, in his petition charging that defendant Leisenrig paid no consideration for the land, and received his deed therefor with notice of the foregoing facts, and that the sale to Paramore was void for the reason that the sheriff failed to set off...