Hunter v. Hunter

• Decision Date: 21 May 1931
• Docket Number: 28988,28989
• Citation: 39 S.W.2d 359,327 Mo. 817
• Parties: Sterling P. Hunter v. Lee Hunter et al., Appellants
• Court: Missouri Supreme Court

39 S.W.2d 359

327 Mo. 817

Sterling P. Hunter v. Lee Hunter et al., Appellants

Nos. 28988, 28989

Supreme Court of Missouri

May 21, 1931

Rehearing Overruled May 21, 1931.

Appeal from Cape Girardean Court of Common Pleas; Hon. Oscar A Knehans, Judge; Opinion filed at October Term, 1930 March 31, 1931; motion for rehearing overruled at April Term May 21, 1931.

Reversed and remanded (with directions).

Hope & Hope for appellants.

(1) Since this case is a suit in equity, the court will, of course, try it de novo, "while deferring somewhat to the conclusions of fact reached by the trial court." Blount v. Spratt, 113 Mo. 54; Price v. Morrison, 236 S.W. 302; Cook v. Higgins, 290 Mo. 402. (2) The deed from plaintiff to Stacy, says the consideration going to plaintiff was "$ 31,300, represented in exchange of lands, . . . the receipt of which is hereby acknowledged." Even if this could be said to be nothing more than an ordinary receipt, and therefore open to parol explanation or contradiction, the deed from Stacy to plaintiff, which fixes the consideration going to Stacy at "$ 60,000, . . . the receipt of which is hereby acknowledged," does not stop with this general statement of the consideration, but it goes on, after the granting clause and after the description of the land, and particularizes as follows: "Of the above consideration of $ 60,000 the sum of $ 25,700 is paid in cash, $ 31,300 is represented by the purchase price of other lands deeded by the party of the second part to said W. L. Stacy, one of the grantors herein, and the balance of $ 3,000 is represented by a deed of trust on said land to the Northwestern Mutual Life Insurance Company, on which there is a balance due of $ 3,000, which is assumed by said W. L. Stacy as a part of the consideration for the lands deeded by said Sterling P. Hunter to said W. L. Stacy." The words are not mere general recitals; they are definite and particular recitals, and they are binding upon the plaintiff. 21 C. J. 1090, sec. 69b; Bigelow on Estoppel, 398, 410; Clamorgan v. Green, 32 Mo. 285. (3) It follows from the above that the trial court erred in permitting plaintiff to introduce testimony contradicting the deeds and tending to show that defendant Stacy owed him an alleged balance of $ 12,000, and erred in finding, on the basis of such testimony, that he was entitled to a purchase-money lien to the extent of the note mentioned. (4) So, according to the plain recitals in the two deeds, which, because they are definite and particular and contractual in their nature, are not open in this case to explanation or contradiction, plaintiff conveyed to Stacy the 429.11 acres, at the price of $ 31,300, in part payment of the purchase price of $ 60,000 on the 477.70 acres which Stacy conveyed to plaintiff by general warranty deed. This brings the case within the rule that when the grantor accepts other property for the purchase price, whether it be real estate, stock, bonds, notes or other property, there can be no vendor's lien. In such case there is no purchase money debt. The property so received is a substitute for the purchase price, or, as the law books say, in novation of it. 3 Pomeroy's Equity Jurisprudence (4 Ed.) sec. 1252, pp. 3016 to 3022; Young v. Walton, 132 Ala. 150; Keith v. Wolf, 5 Bush (68 Ky.) 646. (5) And the above is true, and the vendor's lien is gone, in the case of exchange of lands, even though it should afterwards turn out that one of the tracts was encumbered, and the grantor insolvent so that damages would be uncollectible in an action for fraud or on the covenants of warranty. Hare v. Van Deusen, 58 Barb. (N. Y.) 92. (6) But overlooking, for the sake of argument, the theory that plaintiff is estopped, by the definite recitals in the deeds, from claiming that there was a purchase money balance due him, and admitting, likewise, for the sake of argument, that there was a difference of $ 12,000 in his favor, still the alleged lien should not be enforced: (a) He accepted Stacy's note, in the language of the authorities, "not as a security for the price, but as a substitute for or in novation of the purchase price, so that no debt for the price any longer exists." This principle applies, as the authorities show, not only to cases where the obligation of a third person is accepted, but to cases where the note of the grantee himself is accepted under facts and circumstances such as we have in the case at bar. 3 Pomeroy's Equity Jurisprudence, supra; Walton v. Young, 132 Ala. 150; Keith v. Wolf, 5 Bush (68 Ky.) 646. (b) In any event, under the facts and circumstances of this case, any lien plaintiff might otherwise have claimed was waived. Plaintiff, as his own testimony shows, took the note "in full and complete payment," and without any idea of a lien against the land, but intending, if not agreeing with Stacy, to look solely to Stacy's general property and credit. It was waived by plaintiff, under the circumstances, at the time he took the note. 3 Pomeroy's Eq. Jr. (4 Ed.) sec. 1252, p. 3017; 39 Cyc. 1826, 1833, 1834; Christy v. McKee, 94 Mo. 250; Edmonson v. Joy, 211 S.W. 137; Mosher v. Meek, 80 Ill. 81. (c) Plaintiff is precluded by the law of laches and estoppel in pais from asserting the alleged lien. 3 Pomeroy's Eq. Jurisprudence (4 Ed.), pp. 3020 to 3022. (7) The alleged vendor's lien is subordinate to the three judgments held by appellant, Lee Hunter, since these judgments were recorded in the office of the clerk of the Circuit Court of New Madrid County, and thereby became liens on the property -- the Cook and Burroughs judgments on December 12, 1924, and the Lee Hunter judgment on April 9, 1925 -- not only more than a year before he commenced the present suit but many months prior to his first suit (against Stacy alone) to have the alleged lien declared. Secs. 1555 and 1593, R. S. 1919; Adams v. Buchanan, 49 Mo. 69; 3 Pomeroy's Eq. Jurisprudence (4 Ed.) sec. 1253, pp. 3024-25; Bayley v. Greenleaf, 7 Wheat. (U.S.) 46; Hood v. Hogue, 131 Tenn. 424; Culler v. Ammon, 65 Iowa 281; Hullett v. Whipple, 58 Barb. (N. Y.) 224; Ellis v. Temple, 4 Cold. (Tenn.) 315. (a) The superiority -- under the facts in this case -- of appellant's judgments over plaintiff's alleged equitable lien arises from the very nature of such an equity. It is only a bare right "which in itself," as held in Dickinson v. Fisher, 137 Mo. 357, 362, "has no operative force or effect . . .; a mere creature of equity, not arising out of contract . . . which has no existence until it is established by the decree of a court in the particular case." (b) Or is a secret, invisible trust, known only to the vendor and vendee, and to those to whom it may be communicated in fact." (c) The judgment lien should be accorded superiority for the further reason that the judgment lien is a legal lien while the vendor's claim is a mere equitable interest, which really has no existence until established by a court decree (137 Mo. 362). (8) With respect to the $ 50,000 which Stacy borrowed from the insurance company in March, 1922, and which the insurance company sold to appellants Turney and Lee Hunter, plaintiff conceded at the trial that the burden was on him to prove that the insurance company had actual notice of his alleged right to a vendor's lien at the time the company paid over the money to Stacy. The admission, of course, accords with the rule of law as to the burden of proof in such cases. 39 Cyc. 1869, par. 2; Bobb v. Wolff, 148 Mo. 344; Beach v. Lynn, 252 S.W. 439; Harrison v. Moore, 199 S.W. 188. (9) Plaintiff claims that actual knowledge of his alleged claim was imparted to Wilbur E. Hoag, loan agent of the company at St. Louis, in some conversations plaintiff is alleged to have had with Mr. Hoag at St. Louis in the winter of 1920-1921. Careful reading and analysis of the testimony concerning the alleged conversations will convince your honors, we are sure, of the truth of Mr. Hoag's statement on this subject, namely, that plaintiff did call at Hoag's office and spoke of wanting to sell some notes, but that plaintiff never told Hoag that the Stacy $ 12,000 note represented a balance of the purchase price on the 429.11-acre farm, or that plaintiff claimed a lien on the land. Bobb v. Wolff, 148 Mo. 347; Worley v. Dryden, 57 Mo. 232; Rinkel v. Lubke, 246 Mo. 377; Enos v. Anderson, 40 Colo. 395. (10) Upon the facts stated in the petition, no injunction could properly issue. (a) If the Circuit Court of New Madrid County was without jurisdiction in the matter of the appointment of the new trustee, and if the order in that matter was null and void, as the petition alleges, then there was no ground for injunction, because a court of equity will not entertain a suit to set aside, or restrain action under, a void thing. Turner v. Turner, 225 Mo. 82. (b) If the order was not void, but was a valid appointment, as it undoubtedly was, then the court, of course, could not lawfully restrain the appointee in the performance of his duties as such trustee, even at the instance of an owner of the property, much less the plaintiff. (c) If plaintiff has a vendor's lien on the land in question superior to appellants' $ 50,000 deed of trust, as averred in the petition, he could not be injured by trustee's foreclosure sale thereunder. Wilcox v. Walker, 94 Mo. 92.

Sharp & Baynes and Ward & Reeves for respondent.

(1) A vendor's lien was fully established; and the court's finding is in accord with the facts and the law of vendor's liens. (a) A vendor's lien arises by implication of law and not by acts or contracts of the parties and exists in favor of the grantor as security for remainder of purchase unpaid; and this lien exists regardless of the knowledge of the parties as to its existence, or the vendor's secret intention not to...