Ficklin v. Stephenson

• Court: Missouri Supreme Court
• Writing for the Court: DRYDEN
• Citation: Ficklin v. Stephenson, 33 Mo. 341 (Mo. 1863)
• Decision Date: 31 January 1863
• Parties: JOSEPH FICKLIN AND WILLIAM T. FICKLIN, Respondents, v. JNO. N. STEPHENSON et al., Appellants.

33 Mo. 341

JOSEPH FICKLIN AND WILLIAM T. FICKLIN, Respondents,

v.JNO. N. STEPHENSON et al., Appellants.

Supreme Court of Missouri.

January Term, 1863.

Appeal from Livingston Circuit Court.

Ray, for appellants.

I. The defendants insist that the court below committed error in striking out the answers of defendants, and especially the amended answer of Stephenson & Maupin.

On the part of Call & Clark it is insisted that as they have not the legal title, (it being in Stephenson & Maupin by virtue of mortgage), they cannot perform what they would be required to do. A fundamental doctrine of specific performance is, that the defendant must be able to do what he is asked to perform. (See Ad. Eq. 249 & 250; 2 Sto. Eq. 742 & 769.)

On the part of Stephenson & Maupin it is insisted that, as vendors of a part of the real estate sued for, they have a lien upon the same for the balance of the unpaid purchase money, and to that extent resist the claim of plaintiff. The doctrine of vendor's lien, as usually understood, is a purely equity doctrine, and ordinarily arises where the vendor has conveyed the legal title, and because he has conveyed it. This is not precisely that case. At the time of the sale we made no conveyance, but gave a “title bond” simply, retaining the legal title as a security for the purchase money. During this interval it will not be pretended that the title could be forced out of them without paying the purchase money. The subsequent execution of the deed and mortgage was all one entire transaction.

It is not pretended that a vendor may not waive his lien in various ways; but it is insisted that whether he was waived it is always a question of intention to be determined by the peculiar circumstances of the case. But this is not the case, where, instead of a conveyance, the vendor has only given a title bond. In such case the taking of the security makes no difference. (5 Ohio, 35; 2 Ohio, 383; 19 Mo. 425; Ad. Eq. 126 & 129; 1 Wh. & Tud., L. C. Eq. 194, & Am. No.; Sto. Eq. 465.)

In the ordinary case of a purchase of a tract of land where the purchaser takes a deed, and at the same time gives a mortgage--the purchase money, the deed and mortgage is regarded as one entire transaction--the widow of the purchaser is not entitled to dower as against the vendor or those claiming under him. (4 Kent, 38 & 39; 1 Bay, 312; 4 Leigh, 30; 15 Pet. 21; 15 Johns. 458 & 477; 3 Wend. 233; 6 Cow. 316.) The same principle will apply to this case.

When equities are equal, the legal title prevails. The equity of Stephenson & Maupin is equal, if not superior, to that of the Ficklins, and the legal title is with them. Another rule is, when the equities are equal, the elder will prevail. It cannot be pretended that the date of our equity commenced with the mortgage. Our equity originated with our sale to Call, which of course was prior to their purchase from Call & Clark. The mortgage was only an effort to superadd legal security to a preëxisting equity. The debt due originated not at date of mortgage, but at date of the original sale. (See Morris v. Pate, 31 Mo. 315.)

Tindall & Slack, and Ryland & Son, for respondents.

I. The court below committed no error in striking out part of the answer of Call & Clark, and the judgment of the court, so far as they are concerned, is clearly right. Stephenson & Maupin took the mortgage from Call & Clark, with notice of respondents' right to the property, and subject to the same.

II. The answer of Stephenson & Maupin contained no defence, and there was no error in striking it out. It is not denied that prima facie the vendor's lien exists when no express lien or security is taken; it is only implied, however, and for the reason that no express security is taken. But the taking of express security by mortgage on the land itself, or on any other property, or of the responsibility of a third person, is a waiver of the implied lien. The taking of the mortgage shows that Stephenson & Maupin did not repose on their vendor's lien, but upon the security furnished by the mortgage, and was a waiver of their vendor's implied lien. (Young v. Wood & Abbott, 11 B. Mon. 128; 14 Ohio, 428; 1 Paig. Ch. 20; Little et al. v. Brown, 2 Leigh, 353; Wilson et al. v. Graham's Exec'rs, 5 Mumf. 297; dissenting opinion of Hitchcock, J., in Boos v. Ewing et al., 17 Ohio, 525 -- all in point.)

III. The principle relied on by respondents is, “that the taking of an express lien is a waiver of the implied lien.”(Hard. Ky. R. 48; Gil. R. 329; 20 Ohio, 546; 3 J. J. Marsh. 163; 6 Blackf. 273; 1 Sm. & M. Ch. 462; 1 Mason, 191; 5 Ham. Ohio, 35; Dev. & B. 32; 1 Gill & J. 120; 4 Wheat. 255; s. c., 4 Pet. C. R. 456; 6 How. Miss. 527; 19 Mo. 429; 3 Ala. 302; 8 Gill & J. 87; 4 Comst. 412; 12 B. Mon. 265; 9 B. Mon. 265; 1 S. & Lef. 135; 2 Vern. 281; 2 Ball & B. 515; 2 Ves. & B. 246; 6 Ves. 752; 16 Ves. 278; Taml. 21; 4 Gilm. 498; 1 Doug. 422.)

IV. The decision in the case of Boos v. Ewing et al., 17 Ohio, 500, is unsupported by either principle or authority, and is in direct conflict with a plain and well settled principle, viz, that the taking of security is a waiver of the vendor's implied lien, (see authorities cited to the 2d and 3d points,) and the Supreme court of Ohio have before and since, as well as in that case, expressly recognized this principle as true. (5 Ohio, 35; 14 Ohio, 428, in direct conflict with Boos v. Ewing; 17 Ohio, 201 and 527; also, 20 Ohio, 546.)

DRYDEN, Judge, delivered the opinion of the court.

As appears from the petition, Call and Clark, two of the defendants, sold to the plaintiffs, Ficklin and Ficklin, for the price of five thousand dollars, paid in hand, certain town lots in the town of Chillicothe, in this State, and by their obligation in writing bearing date the 24th of March, 1859, bound themselves to convey the property by a good and sufficient deed to the plainliffs within twelve months thereafter. It also appears from the petition that the defendants Call & Clark afterwards, on the 10th of May, 1859, made a conveyance of the major part of the property they had sold to the plaintiffs, to their co-defendants Stephenson & Maupin, to secure the payment of two notes of seventeen hundred and fifty dollars each which they owed to the latter. The petition charged notice to Stephenson & Maupin of the previous sale by Call & Clark to the plaintiffs, and asked for a conveyance of the title as against all of the defendants.

Stephenson & Maupin answered jointly, and for their defence said that in 1858, prior to the sale by Call & Clark to the plaintiffs, they sold the same property to Call & Clark for one thousand dollars cash and three thousand five hundred dollars on a credit of one and two years, and bound themselves by title bond to convey the same to their said co-defendants on payment of said notes; that the deferred payments remaining unpaid, these defendants, on the 10th day of May, 1859, made an absolute conveyance of the lots to Call & Clark, and at the same time, and as part of the same transaction, Call & Clark made and...