Gill v. Clark

• Decision Date: 31 October 1873
• Citation: 54 Mo. 415
• Parties: ISHAM GILL, Appellant, v. JOSEPH B. CLARK, et al., Respondents.
• Court: Missouri Supreme Court

54 Mo. 415

ISHAM GILL, Appellant,

v.JOSEPH B. CLARK, et al., Respondents.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

J. M. DeFrance, for Appellant.

I. The instrument, before it could convey any interest in the land or be any security, must be signed and sealed by the party making it. (Wagn. Stat., ch. 35, § 7.) Without a seal it is not binding between the parties. (Caldwell vs. Head, 17 Mo., 563; Moreau vs. Detchemendy, 18 Mo., 530.)

II. As to the law of vendor's liens and intentions to hold the land as security in this State. (Delassus vs. Poston, 19 Mo., 425; Pemberton vs. Johnson, 46 Mo., 342.)

III. Taking a perfect mortgage on the land is no implied waiver of the lien. (Stafford vs. Van Rensallaer, 9 Cowen, 316; Davis vs. Cox, 6 Ind., 481; Tobey vs. McAllister, 9 Wis., 463; Boos vs. Ewing, 17 Ohio, 500.) Defendant Blair is the only person defending this suit, and it is overwhelmingly in proof not only that he knew of plaintiff's claim, but that he was to pay it off, as a part consideration to Clark for the land.

Harrington & Cover, for Respondents.

I. The instrument of writing made by Clark to Gill, although not under seal, is an equitable mortgage. (Davis vs. Clay, 2 Mo., 161; Tibeau vs. Tibeau, 22 Mo., 77; 2 Sto. Eq. [7 Ed.], § 1018.)

II. There is nothing in the point urged by appellant, that the mortgage must be under seal.

III. By the taking of the mortgage by plaintiff, (Gill) from defendant, Clark, to secure the payment of the note in question, plaintiff waived his vendor's lien. (Delassus vs. Poston, 19 Mo., 429.) It is a well settled principle of law, that the lien of a vendor is discharged by taking of any independent security, such as a deposit of stock, a pledge of goods, a mortgage on real or personal property, or the responsibility of a third person. (4 Kent Com., 153; 2 Sto. Eq. Jur., 475 n. 2; 2 Sugd. Vend., 59; Brown vs. Gilman, 4 Wheat., 255; Fish vs. Howland, 1 Paige, 20; Williams vs. Roberts, 5 Ohio, 39; Conover vs. Warren, 1 Gilm., 501; Sullivan vs. Ferguson, 40 Mo., 79; Durette vs. Briggs, 47 Mo., 356; Adams vs. Buchanan, 49 Mo., 64.) If the vendor does not intend to waive his lien, or there is an express agreement to retain it, he must show it by satisfactory proofs. (47 Mo., 356.)

ADAMS, Judge, delivered the opinion of the court.

This was an action to enforce a vendor's lien against lands held by the defendant, Blair, as a purchaser from the vendee.

The leading facts are that the plaintiff sold and conveyed the land, situated in Adair county, to the defendant, Joseph B. Clark, for $1,450, of which $800 was in hand paid, and a note for $650 given by Clark to the plaintiff for the balance. At the time of the execution of the deed to Clark, he executed to plaintiff an instrument of writing, not under seal, but in the shape of a mortgage on the same lands, to secure the unpaid note, which instrument was not acknowledged, but was spread upon the record in the Recorder's office of Adair county. The said Clark afterwards sold and conveyed the same lands to the defendant, Blair, who denies by his answer, that he had any notice of any part of the purchase money remaining unpaid to the plaintiff, and alleges that he was a bona fide purchaser for value without notice.

The case being an equitable one, was tried by the court, and evidence was given conducing to show that the defendant, Blair, had notice at the time of his purchase of the unpaid purchase money due to the plaintiff.

After hearing the evidence, the court took the case under advisement till a subsequent term, and at such subsequent term the judge intimated that his opinion on the facts and law was against the plaintiff, and thereupon the plaintiff asked declarations of law, which were refused, and which it is unnecessary to set out. The plaintiff then took a non-suit with leave to move to set it aside, and did make this motion which was overruled, and he has appealed to this court.

A vendor's lien for the payment of this money undoubtedly existed in favor of the plaintiff, unless he had waived the lien, or unless the defendant was a bona fide purchaser for value and without notice.

There seem to be no facts upon which to predicate a waiver of the lien. The alleged instrument of writing, pledging the lands for payment of the note, was not a legal, but merely an equitable mortgage. It is precisely in effect the same sort of a lien...