Hall v. Morgan

• Decision Date: 31 October 1883
• Citation: 79 Mo. 47
• Parties: HALL, Appellant, v. MORGAN.
• Court: Missouri Supreme Court

79 Mo. 47

HALL, Appellant,

v.MORGAN.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Atchison Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Respondents are the widow and minor child of P. G. Morgan, who, his wife joining, mortgaged eighty acres of land to secure a note of $500. He afterward conveyed by a general warranty deed for the expressed consideration of $1,000 one parcel of said land of forty acres to his son, who conveyed to appellant under an agreement that appellant should pay his pro rata of the mortgage. The other forty acre tract was, upon the death of P. G. Morgan, set apart, as homestead, to respondents. Upon a judgment of foreclosure appellant's forty acre tract was sold to satisfy, and did satisfy, the entire mortgage debt; and this suit seeks contribution against the forty acre tract unsold and set apart as homestead. Neither appellant nor his vendor was made a party to the foreclosure suit; and it was not shown who was the purchaser at the foreclosure sale. There was some testimony that the sale by the father to the son was for the purpose of avoiding the payment of debts, but there was no evidence showing that appellant knew such to be the fact, if it were so.

John P. Lewis for appellant.

A. B. Durfee for respondents.

SHERWOOD, J.

Presby G. Morgan owned two contiguous bodies of land making an eighty acre tract, which was half a mile long from east to west. He mortgaged this tract to an eastern company to secure the sum of $500, his wife relinquishing her dower. Subsequently, he conveyed by warranty deed the east forty to his son “Dick,” the consideration expressed in this deed being $1,000. Presby G. Morgan died. Plaintiff had a claim for, say $400, probated against his estate.

There were rumors in the community that the conveyance from the father to the son was made in fraud of creditors, but I find nothing in the record which induces belief that plaintiff was possessed of facts which would have authorized him to take steps to have the conveyance set aside, and nothing to show that he was actuated by any improper motive when he subsequently, and during the pendency of the suit to foreclose the mortgage, bought the east forty of Dick Morgan for the sum of $800, paying him therefor $50 in money, a horse worth $125, and crediting the probated claim to the amount of $275, making $450, at the same time agreeing with Dick, as the latter testifies, that the east forty thus bought was not to bear more than its just proportion of the mortgage debt, which proportion the contracting parties supposed would amount to about $350, which, with the amounts already paid and credited, would foot up the sum of $800. With this in view, the deed from Dick to plaintiff, which was a warranty deed, contained the words, “subject to mortgage.” After the death of Presby G. Morgan, by proceedings in the probate court, the west forty was set off to the widow and minor child as a homestead. The object of this proceeding is to subject the forty just mentioned to the payment of what, taking into consideration the agreement already set forth, would be its just proportion of the mortgage debt.

1. CONTRIBUTION BETWEEN PARCELS OF LAND SUBJECT TO A COMMON MORTGAGE.

In ordinary cases where a grantor mortgages two pieces of property, and subsequently conveys them, incumbered as they are, to two diffrent purchasers, it is settled law that as between themselves, should one of those purchasers pay off and discharge the incumbrance, that from this act would spring his equitable right against his co-purchaser for contribution to such an extent, considering the valuation of the respective tracts, as would answer the ends of justice. Adams Eq., 270; 1 Story Eq., § 477. This right of contribution has for its exemplification the maxim, Qui sentit commodum, sentire debet et onus.

2. ____.

But if a grantor possessed of two pieces of real estate mortgages both of them and afterward sells one of them with warranty, that which he retains is in equity primarily liable as against all but the mortgagee for the whole debt, and the grantee is not required to contribute. All the American and English authorities establish this, that as between such purchaser and vendor the former may redeem the mortgage, and having done so, may enforce it against the portion the mortgageor retains. 2 Jones on Mortgages, §§ 1091, 1620, and cases cited; 2 Story Eq. Jur., § 1233, and cases cited. And doubtless Hall, had he been, or made himself, a party to the foreclosure proceedings, could have successfully demanded that the mortgageor, if living, or his representatives, he being dead, should satisfy the mortgage debt out of the west forty, or he could have waited until foreclosure occurred, bought the land at the foreclosure sale, and then have enforced his claim thus acquired against the west forty, or he could have demanded that the mortgagee should sell, in the first place, that forty before proceeding to enforce his security against the east forty. 2 Jones Mort., § 1620. It does not appear in this case whether foreclosure was asked as to the west forty or not, but certainly the court before which the foreclosure proceedings were had, would, if informed of the true state of the case, have compelled the mortgagee to have proceeded in the manner indicated, and would have given judgment to that effect.

3. _____; lis pendens: homestead: case adjudged.

It would seem from the evidence, and indeed from the petition, that Hall did not become the purchaser at the foreclosure sale, and that he is no longer in the possession of the forty he bought, and as already stated, he purchased while the foreclosure suit was pending. The question then arises, do these circumstances debar him of those remedies which have been heretofore pointed out. The question is not free from difficulty. Ordinarily a purchaser pendente lite stands in the shoes of him from...