Foster v. Williams

• Decision Date: 02 May 1910
• Citation: 128 S.W. 797,144 Mo.App. 219
• Parties: JOHN B. FOSTER et al., Appellants, v. ROBERT W. WILLIAMS, Respondent
• Court: Missouri Court of Appeals

128 S.W. 797

144 Mo.App. 219

JOHN B. FOSTER et al., Appellants, v. ROBERT W. WILLIAMS, Respondent

Court of Appeals of Missouri, Springfield

May 2, 1910

Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Lamar Barton & Lamar for appellants.

(1) Plantiffs were entitled to pay the amount necessary to redeem from the sheriff's deed and be subrogated to the rights of Halley against the interests of their co-tenants. Parsons v. Urie, 8 L.R.A. (N. S.) 559. (2) "A purchaser is fixed with constructive notice of whatever appears in the conveyances constituting his chain of title." 23 Am. and Eng. Ency. Law (2 Ed.), 508; Tydings v. Pitcher, 82 Mo. 379; Bronson v Wanzer, 86 Mo. 408; Mason v. Black, 87 Mo. 329; Hagerman v. Sutton, 91 Mo. 519; Patterson v Booth, 103 Mo. 402; Knox Co. v. Brown, 103 Mo. 223; Loring v. Groomer, 110 Mo. 632; McDonald v. Quick, 139 Mo. 484; Turner v. Edmonston, 210 Mo. 411; Tracy v. Bittle, 213 Mo. 302; Poage v. Railroad, 24 Mo.App. 199; Abbe v. Justus, 60 Mo.App. 300; Jacobsmeyer v. Jacobsmeyer, 88 Mo.App. 102; Alabama C. & C. Co. v. Gulf Co., 7 L.R.A. (N. S.) 712; Kettle River R. Co. v. Eastern R. Co., 6 L.R.A. 111; Millsaps v. Estes, 70 L.R.A. 170.

Dooley, Hiatt & Millard for respondent.

(1) "Subrogation will not be enforced against a bona fide purchaser for value without notice." 27 Enc. Law (2 Ed.), 240; Bissett v. Grantham, 67 Mo.App. 23; Richards v. Griffeth, 27 Am. St. Rep. 156, 92 Cal. 493, 28 P. 484; Ahern v. Freeman, 24 Am. St. Rep. 206, 46 Minn. 156, 48 N.W. 677. (2) "Subrogation is a creature of equity and it must be enforced with due regard to the right, legal or equitable, of others. It cannot be invoked so as to work injustice or defeat a legal right or overthrow a superior or perhaps even an equal equity or displace an intervening right or title." Am. Bonding Co. v. Bank, 99 Am. St. Rep. 480; Makeel v. Hotchkiss, 83 Am. St. Rep. 131, 190 Ill. 311, 60 N.E. 524; Bissett v. Grantham, 67 Mo.App. 23. (3) Whether or not subrogation will be allowed in any particular depends upon the particular facts and circumstances in the case. It is not allowed as a matter of legal right, but only in order that real, essential justice be done in the particular controversy under consideration. Am. Bonding Co. v. Bank, 55 A. 395; Mosier's Appeal, 93 Am. Dec. 783, 56 Penn. 76; Boston Safe Dep. Co. v. Thomas, 59 Kan. 470, 53 P. 472; Altman-Miller Co. v. Bishop, 53 Neb. 545, 74 N.W. 55; Gordon v. Stewart, 96 N.W. 624; Bank v. Paulson, 57 Neb. 717, 78 N.W. 303; Hawker v. Moore, 40 W.Va. 49, 20 S.E. 848; Schieb v. Moon, 50 W.Va. 47, 40 S.E. 329. (4) In examining the judgment rendered by the Texas county court on May 27, 1905, defendant had a right to presume that the court had disposed of the whole matter. Reyburn v. Mitchell, 106 Mo. 366; Wehrs v. Sullivan, 217 Mo. 167; Frank v. Alexander, 88 Mo.App. 35; McDonald v. Frost, 99 Mo. 44.

OPINION

NIXON, P. J.

This was an action in equity wherein plaintiffs sought to fasten their claim for $ 73.34 with interest upon the share in certain lands which defendant obtained from one Marcus Gillispie.

The land in question originally belonged to plaintiffs John B. Foster and T. H. Britton, together with Marcus Gillispie and Phoeba Jeffries, Foster and Britton owning an undivided four-sixths and Marcus Gillispie and Phoeba Jeffries each owning a one-sixth interest; but the ownership of these parties in the land was subject to a sheriff's deed held by one G. W. Halley.

Before the present litigation arose, John B. Foster, T. H. Britton and Phoeba Jeffries had filed an action in the circuit court of Texas county against G. W. Halley, the holder of the sheriff's deed, and Marcus Gillispie who refused to join as plaintiff, and on May 27, 1905, the court entered a decree in that case which is, in part, as follows:

"It is therefore ordered and decreed that plaintiffs and defendant, Marcus Gillispie, pay and they are hereby permitted to redeem said real estate from all liens, encumbrances and claims of every kind of the defendant G. W. Halley upon the payment of the sum of two hundred and twenty dollars to the clerk of this court for his use and benefit with interest thereon from this date at the rate of eight per cent until paid and upon such payment such sale and deed will be cancelled and set aside and for naught held and the title to said real estate will be vested as follows: Four undivided sixths in plaintiffs T. H. Britton and John B. Foster, and one undivided sixth in plaintiff Phoeba Jeffries, and one undivided sixth in defendant Marcus Gillispie.

"And now on the 27th day of May, 1905, comes into court plaintiffs John B. Foster and T. H. Britton and pay to the clerk thereof the sum of two hundred and twenty dollars for the use and benefit of defendant G. W. Halley.

"It is therefore ordered and decreed by the court that the sheriff's deed dated on the 12th day of November, 1903, purporting to convey to defendant G. W. Halley, all the right, title and interest of . . . to the following described lands in Texas county, Missouri, . . . be and the same is hereby cancelled and set aside and for naught held and all the right, title and interest of the defendant G. W. Halley be and the same is hereby divested and the title to the said land be and the same is hereby vested as follows: Four undivided sixths in plaintiffs John B. Foster and T. H. Britton, one undivided sixth in plaintiff Phoeba Jeffries, and one undivided sixth in defendant Marcus Gillispie."

There is some mention in the record of an appeal having been taken from said decree, but it was abandoned.

On October 29, 1906, by warranty deed, Phoeba Jeffries conveyed her one-sixth interest in said land to Marcus Gillispie. On August 8, 1907, Marcus Gillispie, by warranty deed, conveyed all his interest in said land--being his one-sixth and the one-sixth which he had acquired from Phoeba Jeffries--to Robert Williams, the defendant herein, for a consideration of four hundred dollars.

The petition in this case alleges that when in the previous suit against G. W. Halley, the court ordered that John B. Foster, T. H. Britton, Phoeba Jeffries and Marcus Gillispie should pay two hundred and twenty dollars to the use of G. W. Halley and thereupon be permitted to redeem the land, Phoeba Jeffries and Marcus Gillispie, although requested so to do, refused to contribute their part of the said two hundred and twenty dollars; that these plaintiffs, in order to protect their interests in said land, were forced to pay all of the said two hundred and twenty dollars; that one-sixth of said amount should have been paid by Phoeba Jeffries and one-sixth by Marcus Gillispie, but that they had never paid the same; that the part so advanced by plaintiffs for said Phoeba Jeffries and Marcus Gillispie was $ 73.34, and that said amount is yet due and unpaid; that defendant, Robert Williams, now claims to own the said two-sixths and that the said real estate in the hands of the defendant is subject to the claim of these plaintiffs for the money so paid out as aforesaid for the redemption, and that plaintiffs have no adequate remedy at law. Wherefore, plaintiffs prayed judgment against the defendant for the sum of $ 73.34 with interest thereon at six per cent from the 27th day of May, 1905, to be levied upon the said real estate.

Besides a general denial, the answer alleges that defendant at the time he bought the two-sixths of Marcus Gillispie acted in good faith and had no notice whatever of any claim of plaintiffs for money advanced to redeem the shares of Phoeba Jeffries and Marcus Gillispie in said land.

The trial court, after hearing the evidence, found the issues in favor of the defendant. Plaintiffs have appealed and the only ground relied on for reversal is that the finding of the chancellor was erroneous because against the evidence, the weight of the evidence, and the law under the evidence.

It will be seen from the decree that was rendered in the previous case that the parties thereto--John B. Foster, T. H. Britton, Phoeba Jeffries, plaintiffs, and Marcus Gillispie, a co-defendant--were tenants in common of the real estate in the first instance. The interest which G. W. Halley purchased at sheriff's sale gave him an equitable lien upon the land for the amount he paid for the same. The decree gave the tenants in common the right to redeem upon paying the sum of two hundred and twenty dollars, and as all the tenants in common were parties to that suit, they were all bound by the decree.

The rule is that the equitable doctrine of subrogation can be invoked to reimburse a party for money expended in the extinguishment of a debt, lien or charge upon land; but the payment must have been made by one who at the time had or in good faith supposed he had an interest in discharging the demand. Volunteers or strangers have no such right. [Roberts v. Best, 172 Mo. loc. cit. 67, 72 S.W 657.] Under the terms of the decree, the appellants were not mere volunteers or strangers in paying the two hundred and twenty dollars, and, having expended their money to extinguish the charge or lien upon the land for the benefit of all the tenants, as between them and their co-tenants, they would ordinarily be entitled to subrogation. If the interests of the tenants in common were severally bound for the payment of the entire debt of two hundred and twenty dollars, and the same was paid by the appellants to protect the title to the land, then such payment would give to them a lien upon the interests of...