Heim v. Vogel

• Decision Date: 30 April 1879
• Parties: HEIM v. VOGEL, Appellant.
• Court: Missouri Supreme Court

69 Mo. 529

HEIM

v.VOGEL, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Circuit Court.--The case was tried before HON. JAMES J. LINDLEY, one of the Judges.

J. O. Broadhead and Slayback & Haeussler for appellants.

1. The defendants, not having been made parties to the suit upon the mechanic's lien, have a right now to attack the entire proceeding, for they are in nowise bound by the judgment. This is well settled. Hauser v. Hoffman, 32 Mo. 334; Schaeffer v. Lohman, 34 Mo. 68; Crandall v. Cooper, 62 Mo. 478.

2. The purchase by Sternberg of his own property at the sheriff's sale under the execution in favor of the mechanics, gave him no greater interest in the premises than he had acquired from Dette; he had already acquired the equity of redemption, or all the right that Zweifel had at the date of the work done by the mechanics, and he bought, if anything at all, only the lienor's right to the erections and improvements. All he did, in fact, was to relieve the improvements from the lien, and he acquired no greater interest in the premises than he had before; consequently the deed of trust he gave to respondent's trustee conveyed no portion of the land, nor any interest therein except the equity of redemption from the Hammel deed of trust; the deed of trust to respondent's trustee expressly refers to, and gives notice of, the fact that the title conveyed by Sternberg is the same he acquired of Dette by deed, and not such title as might have been acquired by him at an execution sale. It was his duty to pay the deed of trust. When he bought for $1,550, it certainly was not intended that the estate should pay his debts and the deed of trust. As debtor he had to pay his own debts, and his vendee, Sternberg, had to pay the debt standing in his shoes, and the incumbrance. They were part of the consideration of sale by the estate. Blackwell Tax Titles, 446; Vories v. Thomas, 12 Ill. 442; Baily v. Doolittle, 24 Ill. 577; Quinn v. Quinn, 27 Wis. 168; Shepardson v. Elmore, 19 Wis. 424; Carithers v. Weaver, 7 Kan. 110; Porter v. Lafferty, 33 Iowa 254; McLaughlin v. Green, 48 Miss. 207; Brown v. Simons, 44 N. H. 475; Willard on Real Prop., (4 Ed.) 428.

3. The purchaser at an execution sale is not an innocent purchaser without notice. He buys only such interest as the judgment debtor has, and if that interest is subject to equities, even though totally unknown to the buyer, the title is subject still to the same equities. Mann v. Best, 62 Mo. 491, 496; Hart v. F. & M. Bank, 33 Vt. 252; Whitworth v. Gaugain, 3 Hare 416. The judgment debtor was Dette; his interest was Zweifel's equity of redemption, and this is all that Sternberg bought at the execution sale, if his purchase was not, in fact, a payment.

Jecko, Hospes & Jecko for respondent.

1. The mechanic's lien attached from the time of the commencement of the building by Dette, which was in April, 1869. Wag. Stat., § 7, p. 909; Dubois v. Wilson, 21 Mo. 213; Allen v. Sales, 56 Mo. 28; Douglas v. St. L. Zinc Co., 56 Mo. 388; Reilly v. Hudson, 62 Mo. 383. The death of Zweifel did not cancel the contract between him and Dette for the building of the house, nor did it relieve Dette nor the legal representatives from the obligation that Dette and Zweifel assumed under it. 1 Parson's Contracts, p. 111 (Ed. 1853); Chitty's Contracts, p. 98 (Ed. 1848). The descent of the title from Zweifel to the devisees, Legler and May, and the liability of the property to be subjected to the payment of the debt of Zweifel, did not affect the right of any lienor who did work or furnished materials in the construction of the building by Dette, in pursuance of his contract. Allen v. Sales, 56 Mo. 28; Douglas v. Zinc Co., 56 Mo. 388; Reilly v. Hudson, 62 Mo. 383.

2. The judgment was rendered against the proper parties. When Zweifel died, his interest ceased; the property, as he held it, and in the same condition that he held it, instantly passed to the legatees. They took it subject to all the burdens that were upon it, at the time of Zweifel's death, and as far as third persons were concerned, the property in their hands was in precisely the same condition as it was in Zweifel's hands before his death. No judgment, personal or general, was or could be rendered against Legler and May any more than it could have been against Zweifel, had he been living.

3. The sale of the property by order of the probate court did not disturb the lien of Oldenlage and Griesheim any more than it disturbed the deed of trust under which defendant claims. It had the same effect, and no greater or less than the voluntary conveyance of Zweifel, if alive, would have had.

4. Dette bought the property subject to two incumbrances: 1st, The lien of Oldenlage and Griesheim; 2nd, The deed of trust under which the defendant claims. The lien, as far as the title is concerned, had the same effect that a prior mortgage would have had; if Zweifel had, in his lifetime, conveyed the title by way of mortgage or deed of trust to the benefit of Oldenlage and Griesheim, and then given the mortgage under which defendant claims, the death of Zweifel, the devise to Legler and May, and the conveyance under the judgment of the probate court, could not in any way or respect change the relation of the mortgages, or the rights of the mortgagees under them.

5. The purchase of the property by Dette did not make him liable to pay the notes secured by the deed of trust; he took it subject to the lien of Oldenlage and Griesheim, and the deed of trust; by discharging these incumbrances he would have the unincumbered title; but by not doing so, he left the lienor and the cestui que trust in the same position that they were in before he purchased. The mere fact that he was individually liable to Oldenlage and Griesheim for the amount of their claim, and that he acquired the title to the property upon which they had a lien for the payment of their claim, did not affect their lien.

6. The purchase by Sternberg of the title of Dette, did not affect the lien nor change the relation of the parties having liens on the property; and by this deed he was not estopped from acquiring any other or better title; he bought and paid for it, and he purchased at the sheriff's sale under the lien judgment, and for an additional consideration, the title discharged from the deed of trust.

HOUGH, J.

This is an action of ejectment. The circuit court rendered judgment for plaintiff.

Both parties claim title under one Fridolin Zweifel. In April, 1869, Zweifel contracted with one Dette for the erection of a building on the lot in controversy. During said month Dette began work under said contract, and Oldenlage and Griesheim performed labor and furnished materials for said building under a contract with Dette. On the 15th day of June, 1869, Zweifel executed a deed of trust on the lot sued for, to secure a note for $10,000, payable to Michael Hammel, in five years, together with ten semi-annual interest notes for $500 each, which deed was recorded July 8th, 1869. Zweifel died September 5th, 1869, leaving a will by which the property in controversy was devised in fee to David Legler and Gotlieb May, who were also named and acted as executors of said will. On February 28th, 1870, the executors, aforesaid, sold at public sale, under an order of the probate court of St. Louis county, the equity of redemption of Zweifel in the lot sued for, and Dette became the purchaser thereof, at the sum of $1,550, and received a deed therefor dated March 1st, 1870. The building erected by Dette was completed in December, 1869, and on March 17th, 1870, Oldenlage and Griesheim filed a lien for the labor performed and materials furnished by them, on which suit was brought against Dette and the executors on June 14th, 1870. On the 23rd day of June, 1871, Dette, for the recited consideration of $12,812.50, sold and conveyed to B. N. Sternberg, by warranty deed, the premises in controversy. This conveyance, which was a deed poll, contained the following...