Cornet v. Bertelsmann
| Decision Date | 31 October 1875 |
| Parties | AUGUST CORNET, Respondent, v. HENRY BERTELSMANN, et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Franklin County Circuit Court.
J. C. Kiskaddon, for Appellants.
A subsequent purchaser of the legal title to lands with actual notice of a subsisting vendor's lien thereon, without doubt takes no greater title to the land than his vendee had. But the evidence of the notice must be clear and undoubted, amounting in effect to evidence, that knowing of the prior incumbrance the vendee took the conveyance with the intent to defraud the owner of the lien. And the notice must be given not only by some parties in interest, but during the course of the same transaction by which the subsequent purchaser acquired the legal title. (
The testimony as to loose conversations or confessions of the party has but little weight as against his solemn denial under oath. (Flagg vs. Mann, supra; Forest vs. Moorman, supra; Jallard vs. Steinbride, 3 Ves., 478; Jackson vs. Given, 8 Johns., 137; Barnhart vs. Greenshiceas, 28 Eng. L & E., 77.)
Defendant was a bona fide purchaser for a valuable consideration without notice of the lien, and takes the title to the property discharged of the lien. And a mortgagee is deemed a purchaser. (2 Hill Mort., 227; Fisher vs. Thayer, 25 Wend., 399.)
Henry Flanagan, for Respondent.
I. The evidence is amply sufficient to support the decree. Even under our former system of chancery practice, when the sworn answer, denying the case made by the bill, stood as the testimony of one witness, the evidence would warrant the decree. Wilborn's testimony is supported by strong corroborating circumstances, and is only contradicted by the defendant. (East India Co. vs. McDonald, 9 Ves., 275; Menifee vs. Menifee. 3 Eng. [Ark.], 9; Appleton vs. Harton, 25 Me., 23.)
II. Any circumstances which may give a turn to the balance are sufficient in support of the testimony of a single witness. .)
III. Under our present system of practice it is for the court to determine what value shall be attached to the evidence of the respective witnesses, without being governed by any previous decision in equity on the subject. (2 Dan. Ch. Pr., 3 Am. ed., 844; Graves vs. Alden, 13 Ia., 873; Walton vs. Walton, 17 Mo., 376.)
IV. The defendant set up new matter in defense, namely, that he was a bona fide purchaser without notice. The burden of proof devolved upon him. (Walton vs. Walton, supra.)
V. The decree is justified, and well supported by the evidence. The notice, as proved by the plaintiff, was communicated by the vendor to the vendee, a short time before the execution of the deed. (2 Sug. Vend. Purch., 7 Am. ed., 538, et seq.)
This action was originally commenced on the 12th day of December, 1870, against the defendant Bertelsmann alone. The defendants Brinker and Sullentrup afterwards appeared, and were made defendants to the action on their own motion.
The action was to recover the amount due by a promissory note executed by defendant Bertelsmann to plaintiff, bearing date August 4th, 1870, for the payment of $654.20, sixty days after date, with interest at the rate of ten per cent. per annum, and to enforce a vendor's lien against certain real estate in the petition described, for the purpose of the satisfaction of the judgment recovered.
The defendant Bertelsmann made no answer. The defendants Brinker and Sullentrup answered, denying the allegations of the plaintiff's petition, and also setting up as a further defense, that on the 31st day of August, 1870, the defendant Bertelsmann executed his deed of trust, conveying to defendant Sullentrup in trust, for the benefit of defendant Brinker, to secure certain indebtedness of Bertelsmann to Brinker, the lot or tract of land named in the petition, and against which plaintiff seeks to enforce a vendor's lien; that said deed of trust was duly acknowledged and recorded before the commencement of plaintiff's action; that defendants had no notice of plaintiff's supposed lien on said land at the time of the execution and recording of the deed of trust, or at the time of the accruing of the indebtedness which the deed of trust was executed to secure; that at said time it appeared by the records of said county, that said Bertelsmann was the absolute owner in fee of said land, and which appeared to be unincumbered. They claim to occupy the position of innocent purchasers, without notice, for value, and ask that their rights may be protected and enforced as such.
The plaintiff replied, denying the facts set up by the answer, and asserting that defendants had notice of the plaintiff's lien for the purchase money of the land at the time of taking the deed of trust, etc.
The facts of the case which seem to be undisputed are about these: that on the 13th day of June, 1865, the plaintiff sold to defendant Bertelsmann the land named in the petition for the price or sum of $1,525 and at the same time executed and delivered to Bertelsmann a deed by which he conveyed said land to him absolutely; that said deed recited that the consideration had been paid, and the receipt thereof was acknowledged by the deed; that the deed was duly acknowledged on the day of its execution, and recorded on the 10th day of July, 1865; that Bertelsmann had the possession of the premises from the purchase until the commencement of the suit; that at the time of the purchase of the land by Bertelsmann, he paid of the consideration the sum of $125, and that he afterwards paid one thousand dollars, and gave his note for the balance due; that on the 4th day of August, 1870, he gave a new note for the principal and interest then due, which is the note named in the petition.
It further appears, that on the 31st day of August, 1870, Bertelsmann executed and delivered a deed of trust by which he conveyed the same land sold to him by the plaintiff to William Sullentrup, as trustee, to secure the payment to defendant Brinker of several promissory notes in the deed described, executed by Bertelsmann to the said Brinker, for the aggregate sum of about five thousand dollars, as well as to save him harmless from liabilities as his surety on other obligations. This deed of trust was acknowledged and filed in the recorder's office for record on the 2d day of September, 1870.
The main, and I may say the only really controverted question between the parties, is, whether the said Brinker, at the time of taking the deed of trust to secure his indebtedness for advances made to Bertelsmann, had notice that any amount remained due to plaintiff from Bertelsmann of the consideration to be paid for the land in question.
The court, after hearing the evidence, decided the case in favor of the plaintiff, and made a decree and judgment in his favor for $806.85, and ordered that the land named in the petition be sold, and that the proceeds be applied in payment of the amount of the judgment, and that if the amount for which the land was sold did not fully satisfy said judgment, the residue be levied of other lands and tenements or goods and chattels of the defendant Bertelsmann, and that an execution issue therefor, etc. The defendants in due time filed a motion for a re-hearing on the grounds: 1st, that the decree is against the law and against the evidence; 2d, that it is not shown by the evidence that defendant Brinker had notice that there was any of the purchase money unpaid on the property against which the lien is enforced; 3d, that the defendants were taken by surprise by the testimony of the witness Wilborn for plaintiff; 4th, that defendants had discovered new evidence by which they can impeach the veracity of said witness, of which they had no knowledge at the time of trial.
With this motion is filed the affidavit of one of the defendants in reference to the newly discovered evidence, but which with the view we have taken of the case need not be further noticed.
This motion being overruled the defendants excepted, and have appealed to this court.
The decree or judgment in this case is clearly improper It wholly ignores the defendants Brinker and Sullentrup and their rights in the premises. It is first found that the defendant Henry Bertelsmann is indebted to the plaintiff by virtue of the promissory note sued on in the sum of $806.85, and judgment is rendered against said defendants therefor. It is then directed that said sum be levied of the lands named in the petition (describing the same) finding that the said sum is purchase money therefor, and that plaintiff has a vendor's lien on the land, etc., and that the residue of said sum be levied of the other goods and chattels, lands and tenements of said defendant Bertelsmann, and that an execution issue in accordance with the decree.
No mention is made of the defendants Brinker and Sullentrup, or of their interest in the premises. Their rights are wholly ignored and undisposed of by the decree. Their rights under the deed of trust ought at least to have been preserved subject to the plaintiff's lien for his purchase money, even if his lien was properly found to be superior to the lien created by the deed of trust. The evidence shows that the land was sold by plaintiff for $1,525, five or six years before the date of the decree, and yet this land is ordered to be sold to pay eight hundred dollars of purchase money, and no provision made for the disposition of the surplus, provided the land should be sold for more than enough to...
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