Demeter v. Wilcox
| Decision Date | 16 May 1893 |
| Parties | Demeter et al., Appellants, v. Wilcox |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
Reversed and remanded.
Dysart & Mitchell for appellants.
(1) The common law doctrine of vendor's liens is in force in this state, the same never having been changed or modified by statute. And it is conceded that the mere loaning of money to the vendee, which is used to pay the purchase money of land or the voluntary and unauthorized payment of the same, does not establish a lien in favor of one so loaning or paying the money. Truesdell v. Callaway, 6 Mo. 605. (2) Had the latter deed of trust been made to the vendor, Railroad Company, instead of to the plaintiff furnishing the money there would be no question of its priority and of its taking precedence over the Yale deed of trust. Morris v Pate, 31 Mo. 315; Linville v. Savage, 58 Mo. 248; Fontain v. Savings Institution, 57 Mo. 552. (3) The question here is, does the same rule apply in favor of a third party who pays the money and takes a deed of trust from the vendee to secure the sum advanced to pay for the land. We confidently submit that it does, and cite a few of the great mass of authorities on the point. Moring v. Dickerson, 85 N.C. 466; Kaiser v. Lembeck, 55 Iowa 244; Laidley v. Aiken, 45 N.W. (Iowa), 384, citing and approving Kaiser v. Lembeck, supra; Bradley v. Byran, 43 N.J.Eq. Rep., 396, and authorities cited by the learned reporter at the end of the case. 2 Pomeroy Equity Jurisprudence, sec. 725; Cary v. Boyle, 53 Wis. 574. (4) In this state a vendor's lien passes to the assignee by assignment of the note given for the purchase money, and, in such case, one who pays the purchase money to the vendor is subrogated to the lien. Sloan v. Campbell, 71 Mo. 387; Jones on Liens, sec. 1093. (5) The plaintiff's deed of trust having been taken from the grantee to secure the purchase money advanced by plaintiff upon the condition that he was to be so secured on the land, it prevails over all liens created or suffered by the grantee prior to the time he acquired the title and executed the deed of trust to plaintiff, including mortgage liens, judgment liens, mechanic's liens, dower and homestead rights. See authorities cited under III. point, and also, Mitchell v. Butt, 45 Ga. 162; Blevens v. Rogers, 32 Ark. 258; Magee v. Magee, 51 Ill. 500; Curtis v. Root, 20 Ill. 53; Dwenger v. Branigan, 95 Ind. 221; Haywood v. Nooney, 3 Barb. 643; Mize v. Barnes, 78 Ky. 506; Bolles v. Carli, 12 Minn. 113; Jones v. Parker, 51 Wis. 218; Cary v. Boyle, 53 Wis. 574 and 56 Wis. 145. (6) Of course this last rule would not apply as against the vendor himself. The latter's lien prevails over the lien of a third party who furnishes the money to make the first payment, without regard to priority of registration. Rogers v. Tucker, 94 Mo. 347; Turk v. Funk, 68 Mo. 18.
R. S. Matthews for respondent.
(1) Neither the grantor nor the grantee of the land in question are parties to this suit and are in no way interested in its result. The appellant, at the time he loaned his money to Needham, had no rights in the land to be protected by him. The railroad company did not assign its lien to appellant, and did not agree to assign the same. No equity or right of subrogation exist in favor of appellant. Price v. Courtney, 87 Mo. 387; Wooldridge v. Scott, 69 Mo. 609. (2) The debt of a creditor which is paid with the money of a third person without any agreement that the security shall be assigned or kept on foot for the benefit of such third person is extinguished by the payment and the doctrine of subrogation will not apply, and a court of equity will afford no relief. Bunn v. Lindsay, 95 Mo. 250, and cases cited; Wade v. Beldmeir, 40 Mo. 486; Wolf v. Walter, 56 Mo. 292; Sharp v. Collins, 74 Mo. 266. (3) Equity does not admit the doctrine of equitable assignments in favor of him who pays off a mortgage. (4) A mere stranger, therefore, who furnishes the money to pay off the balance of the purchase price is a volunteer, and can never be an equitable assignee. Pomeroy on Equity, sec. 1212, and cases cited; Sheldon on Subrogations, sec. 3; Johnson v. Goldsby, 32 Mo.App. 560; Evans v. Halleck, 83 Mo. 376; Wilson v. Brown, 13 N.J.Eq. 277; Wolf v. Walter, 56 Mo. 292. (5) This case is nothing more than a suit to have established and enforced a vendor's lien where there is none, and no assignment by the vendor, and none thought of at the time of the transaction. This case in another form was before this court once before. See Demeter v. Walker, 94 Mo. 88. (6) No vendor's lien can arise when the vendor executes and delivers a conveyance to the purchaser and the whole purchase money is paid to vendor. Pearl v. Harvey, 70 Mo. 160, and cases cited.
Suit in equity. The land in question was owned by the Hannibal and St. Joseph Railroad Company. In November, 1868, it sold to one Web M. Rubey on time and gave him bond for deed in payment of the purchase money. On the sixteenth day of October, 1871, Rubey assigned said contract to Thomas G. Yale, who took possession of the land and improved it. And afterwards, on the fourteenth day of January, 1875, Yale and wife conveyed by deed twelve and one-half acres of land in Macon county to Needham, and at the same time Yale delivered said railroad contract to Needham, but without assignment; and on the same day, January 14, 1875, Needham gave Yale a deed of trust on the twelve and one-half acres and on his equity in the forty-acre tract in controversy to secure the sum of $ 500, in four notes falling due in one, two, three and four years. Thereupon Needham took possession of the land in question, farmed it and made some improvements.
Needham also made several payments to the railroad company on the contract, and subsequently, prior to January, 1881, renewed the contract with the railroad company, whereby the old, or Rubey contract, was surrendered and a new one issued in its stead for the same land and for the balance of the purchase money remaining unpaid. This latter contract was issued by the railroad company to and in the name of Needham.
Needham made several payments to the company on this latter contract through its agents, Walker & Gilstrap, so that on or about January 11, 1881, and prior thereto, there remained unpaid and due the railroad company on said contract, for the purchase of said land, the sum of $ 231.80. Of this sum Needham paid $ 31.80. The balance of this sum, $ 200, was paid by plaintiff, E. J. Demeter. The money was paid by Demeter to W. G. Walker, the agent of the railroad company, for the company, and as the last payment on said land. This balance was paid upon the condition and the express understanding between Demeter, Needham and the agents of the railroad company, that Demeter was to be secured on the land, when the deed was made by the company to Needham.
It seems that the method of securing Demeter on the land was largely left to Walker & Gilstrap. Anyway, this plan was adopted and carried out: The money was sent to the railroad company with request that the company execute a deed to Needham, the holder of the contract, Needham was then to execute his note and deed of trust on the land to Demeter.
The note and deed of trust were drawn by Gilstrap and bear date January 11, 1881, the same day the money was paid and receipted for, the plaintiff, Walker, being made trustee in the deed of trust. They were delivered to Demeter on the eighteenth day of January, 1881, and recorded the same day. When the money was paid it was understood that the deed for Needham would be returned in about ten days, at which time the note and deed of trust were to be delivered to Demeter. It does not clearly appear when this deed was executed and returned to Macon from Hannibal, but it bears date January 28, 1881, that is, the deed from the company to Needham, and the same was at the time duly recorded, some ten days after the filing of Demeter's deed of trust. The deed and deed of trust bear different dates, but this discrepancy, if one, is fully explained by the witness, Walker. They were intended to be parts of the same transaction. Gilstrap drew the note and deed of trust on the day the money was paid in anticipation of the deed. The company did not make the deed on the day the money was received, but held it until conveyance day. The deed was due on the day of payment, but the company only made deeds once or twice a month.
Long after the plaintiff's deed of trust was recorded, to-wit on the third of March, 1883, the land in question was sold under the deed of trust from Needham to Yale, and the defendant, Wilcox, became the purchaser at the price of $ 650, as he testifies, and received a trustee's deed, having no other claim, right or title. At the sale of the property, under the Yale deed of trust, and before he bid on and purchased the same, the defendant, Wilcox, was notified and warned of plaintiff's deed of trust, and for what purpose it was given, and of plaintiff's claim, right, title and interest in and to the property, fully as set out in plaintiff's petition. This notice was given by plaintiff's agent and attorney on the day of sale, before the bidding commenced. This was admitted by the defendant...
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