Bunn v. Lindsay
| Decision Date | 19 March 1888 |
| Parties | Bunn, Appellant, v. Lindsay et al |
| Court | Missouri Supreme Court |
Appeal from DeKalb Circuit Court. -- Hon. Joseph P. Grubb, Judge.
Affirmed.
Ramey & Brown and J. F. Harwood for appellant.
(1) Appellant having paid off the mortgage to the St. Joseph Building Company at the request of respondent Lindsay, and pursuant to an express understanding with Lindsay that he should be secured by a first lien upon the land, which should take the place of, and be equal in extent to, the lien so paid off, and having failed to secure such lien on account of mere oversight or mistake in not having discovered the Paramore judgment, he will be relieved in equity by being subrogated, to the extent of such payment, to the original lien of the building company. Building Ass'n v Thompson, 32 N.J.Eq. 133 and cases cited; Payne v Hathaway, 3 Vt. 212; Dixon on Subrogation, 165; Bright v. Boyd, 1 Story, 478; S. C., 2 Story, 607; Valle's Heirs v. Fleming's Heirs, 29 Mo 152. (2) Under the circumstances of this case the deed of trust executed by Lindsay to appellant will be held, in equity, to relate back to its date which is concurrent with the first act in the negotiation which led to its complete execution by delivery. Jackson v. Ramsey, 15 Am. Dec. 242, and note. (3) The respondent Lindsay was, as against the judgment and execution of Paramore, entitled to a homestead in the land in controversy, which passed to appellant by the deed of trust. The sheriff having failed to set off such homestead the execution sale is void as to appellant and should be set aside. Vogler v. Montgomery, 54 Mo. 577; Beckman v. Meyer, 75 Mo. 333; State ex rel. v. Mason, 88 Mo. 222; McClary v. Bixby, 35 Vt. 254; Herman on Ex., sec. 107, p. 123, and cases cited. (4) The defendant Leisenrig is, under the evidence, chargeable with notice of all of appellant's rights. Leeper v. Bates, 85 Mo. 224; Leavitt v. Laforce, 71 Mo. 353; Mabary v. McClurg, 74 Mo. 575; Speck v. Riggin, 40 Mo. 405; Bank v. Delano, 48 N.Y. 326, and cases cited.
S. H. Corn and T. E. Turney for respondents.
(1) The finding of the court below upon the facts, being in favor of respondents and supported by the testimony, will be respected by this court; and this court will not reverse the judgment unless the court below erred in matter of law. Bank v. Murry, 88 Mo. 191; Anderson v. Griffith, 86 Mo. 549. (2) The facts upon which appellant predicates his first point are not supported by the testimony. Lindsay never requested appellant to pay off the mortgage of the St. Joseph Building Company, nor was there any understanding that he should do so, and appellant, in fact, never did pay it. The appellant is not entitled to be subrogated to the rights of the St. Joseph Building Company prior to the extinction of its lien, under the facts in this case. Sheldon on Subrogation, secs. 3, 240-1-2-3, p. 278, et seq; Wade v. Baldwin, 40 Mo. 486; Wooldridge v. Scott, 69 Mo. 669; Sharp v. Collins, 74 Mo. 266; Price v. Courtney, 87 Mo. 395; Stearns v. Godfrey, 16 Me. 158; Woollen v. Hillen, 9 Gill [Md.] 185; Small v. Stagg, 95 Ill. 39; Sanford v. McLean, 3 Paige, 117; Downer v. Miller, 15 Wis. 612; Barber v. Lyon, 15 Ia. 37; Gadsden v. Brown, Speers' Eq. [S. C.] 37; Webster's Appeal, 86 Pa. St. 409; Shinn v. Budd, 14 N.J.Eq. 234; Woods v. Gibson, 17 Ill. 218; Kitchell v. Mudgett, 37 Mich. 82; Guy v. DuUprey, 16 Cal. 195; Commonwealth v. Canal Co., 32 Md. 501. (3) Appellant's grievances are the result of his own negligence. Paramore was a creditor of Lindsay of equal merit with Bunn. A court of equity will not deprive the former of his legal rights, in order to relieve the latter of the result of his own negligence. Conner v. Welch, 51 Wis. 431; 1 Story Eq. Jur. [6 Ed.] sec. 146, and note; Brown v. Fagan, 71 Mo. 563; Sheldon on Subrogation, sec. 43, p. 48. (4) The facts of this case furnish no ground for the application of the doctrine of "relation." It is only when a party has become entitled to the fruits of a deed at a time anterior to its execution that the deed, when executed, will relate back to protect the title of the grantee to the time when his rights to the thing granted accrued. Appellant was not entitled to his deed of trust until he had parted with his money; for that reason its execution was delayed until January 23, 1875. The doctrine of relation operates only as to parties and privies to the deed, and never to the prejudice of the rights of others. Alexander v. Merry, 9 Mo. 528; Crowley v. Wallace, 12 Mo. 143; Hart v. Rector, 13 Mo. 497; Strain v. Murphy, 49 Mo. 340; Powers v. Hermert, 51 Mo. 136; Hearn v. Keath, 63 Mo. 84; Wash. on Real Prop. [3 Ed.] p. 276, chap. 4, sec. 2; 15 Am. Dec., note 3, p. 246. (5) If Lindsay had any homestead rights in the land at the time of the sale under the execution, appellant cannot assert them in this suit. Gunnison v. Twitchel, 38 N.H. 62, 68; Bennett v. Cutler, 44 N.H. 71; McElroy v. Bixbie, 36 Vt. 254; Judge v. Simonds, 46 N.H. 363-8; Foss v. Strachn, 42 N.H. 42; Thompson on Homesteads, sec. 452, and cases there cited. (6) The sale under the execution was not void. Crisp v. Crisp, 86 Mo. 630; Blandy v. Asher, 72 Mo. 27, 36. (7) Removing out of the state pending his motion to set aside the sale was an abandonment by Lindsay of his claim of a homestead in the land; and as the sale was not void, no assignment of a homestead in the land could have been made after abandonment in that or any other proceeding. Thompson on Homesteads, sec. 263, and cas. there cit. (8) Lindsay had no homestead in the land; his occupancy did not begin until after the lien of the judgment attached. Finnegan v. Prindeville, 83 Mo. 517; Thompson on Homesteads, secs. 241-4. (9) Leisenrig had no notice of appellant's claims except what the record imparted at the time of his purchase. The record of his deed of trust imparted notice that its recitals were true only from and after the date of the acknowledgment. 3 Wash. on Real Prop. [3 Ed.] chap. 4, sec. 2; Blanchard v. Tyler, 12 Mich. 339; Fountain v. Bank, 57 Mo. 552; Norfleet v. Bissell, 64 Mo. 176.
OPINION
On the fifth day of September, 1873, John M. Lindsay, being the owner in fee of the undivided half of section 8, township 59, range 32, in DeKalb county, executed his note of that date to the St. Joseph Building Company for the sum of six thousand dollars, 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 ninth day of September, 1873, in said county. On the first 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 seventeen hundred and fifty dollars. About the first of July, 1874, Lindsay applied to one House, at Cameron, Missouri, who was the agent of plaintiff, a money-lender, then resident in Bloomington, Illinois, for a loan of twenty-five hundred dollars to pay off said deed of trust. House, at the instance of plaintiff, examined the records of DeKalb 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 the 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 date the first of July, 1874, two of the notes for one thousand dollars each and one for five hundred dollars, payable to plaintiff on the first of July, 1879, at the Mercantile National Bank at Hartford, with interest from date at the rate of ten 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 ten 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 twelfth of December, 1874, Gideon C. Paramore recovered judgment in the circuit court of Clinton county against Lindsay on the Smith note for nineteen hundred and seventy-two dollars, and on the fifteenth of December, 1874, filed a transcript of said judgment in the office of the clerk of the circuit court of DeKalb county, which was thereupon duly docketed and recorded by said clerk. On the twenty-third 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 twenty-five hundred dollars 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 twenty-fifth 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 twenty-five hundred and ten dollars paid by him, and on the twenty-eighth of January, 1878, this deed of release and Lindsay's deed of trust to Powell to secure plaintiff's bonds, were at the same time filed for record in the office of the recorder of DeKalb county. In March 1876, Lindsay, who before that time had been residing on a forty-acre tract of land adjoining said section 8, moved into a house on said ...
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