Haley v. Branham
| Decision Date | 04 October 1915 |
| Citation | 180 S.W. 423,192 Mo.App. 125 |
| Parties | O. E. HALEY, Respondent, v. MARY C. BRANHAM and MARTIN L. BRANHAM, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. D. E. Bird, Judge.
AFFIRMED.
Judgment affirmed.
J Allen Prewitt for appellants.
Chas F. Trinkle, W. B. Cline and W. B. Dickinson for respondent.
--This is a suit on a promissory note dated December 16, 1910, due one year after date, executed by the defendants to Chris Sebolt or order and by him assigned, after maturity and without recourse, to the plaintiff O. E. Haley. The execution of the note was admitted but the answer set up that the note was secured by a duly recorded mortgage upon the defendant Mary C. Branham's undivided one-fourth interest in certain Kansas land; that said land was sold in partition subject to said mortgage and purchased by one Hugh M. Tevis while said mortgage was existing and in force thereon; that said land thereby became primarily liable for the payment of said note; that thereafter and while said land was primarily liable, the plaintiff obtained the note from Sebolt, the payee, and released the mortgage, and, since he has released the property which is primarily liable for the payment of the note, he cannot now proceed against defendants. There is no allegation of payment nor that Tevis, the purchaser of the land at the partition sale, assumed the payment of the note, nor that it was sold expressly subject to the mortgage, nor that defendants did not receive full value for their land.
The defendants and Sebolt, the payee of the note, lived in Independence, Missouri. Mary C. Branham obtained title to her one-fourth interest in said land by inheritance as one of the four heirs of her father. After the mortgage securing the note in question had been duly recorded, and after the note had matured, it seems that one of the other heirs brought suit for partition of the land and obtained service upon defendants by publication. No mention of the mortgage was made in this suit nor was Sebolt, the then owner and holder of the note and mortgage, made a party. On the 31st day of August, 1912, judgment of partition was rendered and it was ordered that, if partition could not be made in kind, the land should be appraised and sold. The judgment also canceled a contract between Mary C. Branham and the plaintiff in the partition suit for the sale to the latter of her one-fourth interest, upon the ground that Mary C. Branham had not complied with her contract as to furnishing an abstract showing good title, and the plaintiff in that suit was therefore entitled to rescind the contract and to have a lien on her interest for the amount paid thereon which lien the judgment established. Defendants say they had no actual knowledge of the institution of this suit, nor did they know of the rendition of said partition judgment nor of the cancellation of said contract. And they further insist that the suit was fraudulently brought without their knowledge so as to afford the plaintiff in that suit an opportunity to get out of the contract to purchase Mary C. Branham's interest. But we think this contention can have little or no weight now, because, after the judgment was rendered but before any steps were taken thereunder, the defendants herein found out about the judgment and the cancellation of the contract and filed a motion in the Kansas court, which rendered the judgment, praying that said judgment be set aside. And before said motion was acted upon, the parties to that suit, including Mary C. Branham and her husband, the defendants herein, entered into a stipulation whereby it was agreed that said motion should be withdrawn, that the contract of sale should be held void and that the judgment rendered should, with a slight modification, stand and the property be sold as directed. So that the question whether the judgment for cancellation and partition was improperly sought and obtained is out of the case, since defendants stipulated that the judgment, slightly modified, should stand.
Defendants, at the time of the stipulation, said nothing about the mortgage on the land and no mention whatever was made of it in the partition proceedings. Thereafter the land was appraised at $ 4790, but none of the parties interested in said land elected to take the land at its appraised value as they had a right to do under the law, so that the sheriff proceeded to sell it according to law as directed in said order. It brought $ 4050 that being the highest and best bid. After the costs were paid each heir got $ 942 for the land. That is, the defendants herein got as much for their mortgaged interest as the other heirs got for their respective shares.
After Tevis had bought the land and paid the above amount therefor, plaintiff herein, O. E. Haley, went to Sebolt at Independence and bought the note and took an assignment of it and the mortgage. This was done on July 26, 1913. On October 4, 1913, he released the mortgage and thereafter brought this suit on the note.
Defendants' theory that they should not be required to pay said note is that inasmuch as the purchaser at an execution or partition sale buys only the interest of the parties to the suit and takes the land caveat emptor, therefore, Tevis, the purchaser at the partition sale, bought the land subject to the mortgage on defendants' interest, and should pay the mortgage too. And hence the land became primarily liable for defendants' debt and, since the property primarily liable has been released, plaintiff cannot look to defendants personally.
It is true that if the equity of redemption be sold on execution the purchaser cannot either legally or equitably claim that the mortgagor shall pay off the mortgage, and, as between these two, the land remains a primary fund out of which the mortgage should be paid. [Walker v. Goodsill, 54 Mo.App. 631, l. c. 635; 1 Jones on Mortgages, sec. 736; Parkey v. Veatch, 68 Mo.App. 67, l. c. 74.] This principle undoubtedly applies as between the seller and the purchaser of the mortgaged premises. But this is not so as to the mortgagee unless there has been some agreement upon his part or something done by him which binds him to look to the land as a primary fund. As said in 27 Cyc. 1352, ...
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