Christy v. McKee
| Decision Date | 06 February 1888 |
| Citation | 6 S.W. 656,94 Mo. 241 |
| Parties | Christy et al., Appellants, v. McKee et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court.
Affirmed.
W. B Thompson and James and Charles S. Taussig for appellants.
(1) By the terms of Ryan's deed to Gibbons, the vendor, Ryan had and has a grantor's lien on the real estate conveyed by him to Gibbons (for the Butchers' and Drovers' Bank) for the unpaid or unsatisfied consideration named in the conveyance, to-wit, the covenant to discharge the judgment in favor of Christy. (a) There was not merely a covenant to pay these debts, but their payment was part of the consideration for the deed. (b) In Missouri the grantor's lien for unpaid consideration has been recognized in a series of cases, from McKnight v Bright, 2 Mo. 110, to Adair v. Adair, 78 Mo. 630, and Bronson v. Wanzer, 86 Mo. 414. (c) Where the consideration or any part of it consists of a collateral undertaking of the vendee to assume and discharge a debt contracted by the vendor, or for which the vendor is liable, he has a lien on the land sold for the discharge of the debt so assumed by the vendee. Such is the settled rule in this state, whatever may be the conflict of decisions elsewhere. Pratt v. Clark, 57 Mo. 191; Pratt v. Eaton, 65 Mo. 157; Bennett v. Shipley, 82 Mo. 448; Barnum v. Bobb, 68 Mo. 623; Young v. Harris, 36 Ark. 162; Bank v. Knapp, 61 Miss. 485; Carver v. Eads, 65 Ala. 190; De L'Isle v. Succession of Moss, 34 La. Ann. 164; Nichols v. Glover, 41 Ind. 24; Francis v. Wells, 2 Col. 660; Glaze v. Watson, 55 Tex. 563; Hamilton v. Gilbert, 2 Heisk. (Tenn.) 680; Galt v. Trumbo, 17 B. Mon. 682. (d) The petition does not allege any facts from which it can be inferred that the grantor's lien was waived. (2) The plaintiff, Amanda E. Christy, being the creditor whose judgment the purchaser proposed to pay, has the same right to enforce the grantor's lien as the grantor, Ryan, has. Meyers v. Lowell, 44 Mo. 328; Rogers v. Gosnell, 58 Mo. 589; Fitzgerald v. Barker, 70 Mo. 685; Parson's on Cont. 468; Pratt v. Bates, 40 Mich. 37. And the grantor's lien for his debt assumed by the grantee can be enforced by the creditor of the grantor. Authorities under (c) of first head. (3) Independent of the grantor's lien, the agreement of the bank and Ryan's deed to Gibbons, being read together, created and constituted an equitable mortgage in favor of Ryan and of the plaintiff on the lands conveyed to Gibbons, for the amount of the judgment against Ryan. 1 Hill on Trustees (4 Ed.) 648; Racouillot v. Sauserin, 32 Cal. 375; McQuie v. Peay, 58 Mo. 59; Blackburn v. Tweedle, 60 Mo. 507. (4) The defendant, McKee, stands in the shoes of Gibbons and of the bank. She is not an innocent purchaser. She acquired no title by the sales under the two deeds of trust. No conveyance was ever made to her directly by Gibbons or by the bank. If the grantor's lien could have been enforced by the plaintiff against Gibbons or the bank, it can be enforced against her. Bailes v. St. Joseph Co., 73 Mo. 371. (5) Smith stands in the shoes of Gibbons and of the bank. His title is subject to the same equities. (6) The plaintiff, by the sheriff's deed set forth in the petition, acquired a title to the real estate superior to that acquired by Gibbons. This superior title is clouded by the title claimed by the defendant, McKee, under the void trustee's deeds. The plaintiff has the right in equity to have this cloud removed.
H. A. & A. C. Clover for respondents.
(1) The petition has no equity, for the reason that it is manifest, from an examination of the instruments set forth in the petition -- the deed and the agreement -- under which the lien is now claimed, that a vendor's lien never existed and does not now exist. "That it was intentionally displaced and waived by the consent of the parties." Gilman v. Brown, 1 Mason, 212; 2 Sugden V. & P. 675, bottom; Ex parte Western Life Ins. Ass'n, L. R. 11 Eq. 164; 2 Story's Eq. Jur., sec. 1226, note 2; 4 Kent's Com. 153; Fish v. Howland, 1 Paige Ch. 20. (2) Under the circumstances of the case, as set forth in the petition, the plaintiff's intestate was not entitled to the benefit of the vendor's lien, for the reason that Ryan having conveyed the property to Gibbons, and taken, in addition to his assumption the covenant of the Butchers' and Drovers' Bank, an independent and distinct security for the payment of the judgment, there is, for this reason, an undoubted reliance upon this security and so a waiver of any vendor's lien. Story's Eq. Jur., sec. 1226, note 1; Bond v. Kent, 2 Vern. 281; Vail v. Foster, 4 Conn. 312; Johnson v. Sugg, 13 Sm. & M. 346; 4 Kent's Com., sec. 58, pp. 151, 153; 4 Wheat. 255; 14 Ohio 428; 25 Ill. 309; 4 Minn. 65; 17 Cal. 70; 24 Tex. 238. (3) The vendor's lien exists for un paid purchase money and not for the satisfaction of a collateral obligation. And on this ground a want of equity is apparent on the face of the petition. Boyer v. Austin, 72 Mo. 81; Sullivan v. Ferguson, 40 Mo. 79; Durette v. Briggs, 47 Mo. 362; Adams v. Buchanan, 49 Mo. 64; Anderson v. Griffith, 66 Mo. 44; Carr v. Thompson, 67 Mo. 472; Sharp's Adm'r v. Collins, 74 Mo. 266. (4) The plaintiff acquired no title to the property by her purchase at sheriff's sale, the lien of her judgment having expired, when she so bought, and Ryan having sold the property, there was nothing for her to acquire thereby, nor could she at such sale become purchaser of a right in Ryan to file a bill in equity to enforce a vendor's lien. Chouteau v. Nuckolls, 20 Mo. 442, and cases cited infra. (5) The defendant, Mrs. McKee, has at least an equal equity with plaintiff, being an innocent purchaser for a valuable consideration, without notice of plaintiffs' alleged claim, and this matter appearing clearly on the face of the petition a demurrer will hold. Story's Eq. Pl. (9 Ed.) sec. 603, and cases cited, note 1; Johnson v. Hubbell, 40 N.J.Eq. 332; Carroll v. Johnson, 2 Jones' Eq. (N. C.) 120; Van Meeter v. McFadden, 8 B. Mon. 435; Bowne v. Chiles, Cranch C. C.; 10 Peters, 177; Wailes v. Cooper, 24 Miss. 208; 7 Cranch, 2; Pratt v. Clemens, 4 W.Va. 443.
This cause is before us on plaintiffs' appeal from a judgment of the circuit court, in sustaining a demurrer to the petition. The petition is of great length, and on that account its insertion here will be omitted, inasmuch as the points made will sufficiently appear by the following summary of the facts stated therein, as presented by counsel for plaintiffs: Prior to November, 1875, one Thomas Ryan, being the owner of certain real estate, situate in part on Olive street and Washington avenue, in the city of St. Louis, executed two separate deeds of trust, one to the trustees of the Butchers' and Drovers' Bank, conveying the property on Olive street, and one to the trustee of Stewart Van Vliet, conveying the property on Washington avenue, to secure the payment of certain loans of money made by them, respectively, to him. On the twenty-second day of November, 1875, while Ryan was the owner of the equity of redemption in those two lots of land, the plaintiff, Mrs. Christy, recovered a judgment against him for $ 11,628.83, which then, by the force of the statute, attached as a lien upon Ryan's said equity of redemption. On May 19, 1876, Ryan conveyed, among other parcels, his interest, being his equity of redemption, in the two lots above mentioned, according to the legal effect of the facts pleaded, to the Butchers' and Drovers' Bank. As a part of the consideration for such conveyance, the bank agreed to extinguish the debts so secured by said deeds of trust, and also to pay the Christy judgment, above referred to, against Ryan. Soon after this conveyance, the bank paid the Van Vliet notes and took into possession the notes and deed of trust securing the same.
In 1877, after the maturity of these notes, as well as those held by itself, secured on the Olive street lots, the bank transferred and delivered the same to Wm. McKee, in settlement of a demand held by McKee against it. The notes and the deed of trust securing their payment were bequeathed by Wm. McKee, now deceased, to the defendant, Eliza McKee, who afterwards caused the lots on Olive street and Washington avenue, under the power contained in the deeds of trust, to be sold to satisfy the notes, and she herself became the purchaser and went into possession thereof. The case of Christy v. Ryan, in which, on November 22, 1875, she recovered the judgment of $ 11,628.83, was appealed to the court of appeals, and came to this (Supreme) Court, where the judgment of the circuit court was, in July, 1879, affirmed. On July 19, 1879, Mrs. Christy caused execution to issue from the circuit court on the judgment so affirmed against Ryan, and caused the same to be levied on the Olive street and Washington avenue lots, above mentioned, as the property of Ryan. The same were sold under this execution by the sheriff and purchased by Mrs. Christy, and a sheriff's deed was duly executed, conveying to her all the right, title, and interest of Thomas Ryan in said lots. Mrs. Christy now brings this suit against Mrs. McKee to set aside her trustee's deeds as clouds on plaintiff's title, and if not that, at least, to subject these lots to the payment of her judgment against Ryan. There is a demurrer to this petition on the ground that it does not state a cause of action.
In addition to the facts above stated, it is averred in the petition, that, on the nineteenth day of May, 1876, the Butchers' and Drovers' Bank entered into an agreement in writing with Thomas Ryan, so much of which as is necessary to a proper determination of the questions involved in the case is as follows: ...
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