Johnson v. Burks

• Decision Date: 23 November 1903
• Citation: 77 S.W. 133,103 Mo.App. 221
• Parties: WILL H. JOHNSON, Administrator, etc., Respondent, v. MOLLY P. BURKS, Appellant
• Court: Kansas Court of Appeals

77 S.W. 133

103 Mo.App. 221

WILL H. JOHNSON, Administrator, etc., Respondent, v. MOLLY P. BURKS, Appellant

Court of Appeals of Missouri, Kansas City

November 23, 1903

Appeal from Grundy Circuit Court.--Hon. P. C. Stepp, Judge.

AFFIRMED.

Decree affirmed.

Platt Hubbell, George Hubbell and O. N. Gibson for appellant.

(1) A vendor's lien, for failure of title, can not exist where there is an exchange of lands, and nothing more. Where anything is taken in satisfaction of the price, although payment is not positively made, the vendor's implied lien does not exist. 28 Am. and Eng. Ency. Law, 156, 164, 185 188, 193; Adams v. Cowherd, 30 Mo. 460; 2 Story on Equity (13 Ed.), sec. 1223; Willard v. Vandusen, 32 Barb. 92; Shelly v. Estes, 83 Mo.App. 310; Nixon v. Knollenberg, 92 Mo.App. 20; Jones v. Rush, 156 Mo. 372; Stevens v. Rainwater, 4 Mo.App. 298; Anderson v. Griffith, 66 Mo. 44; Christy v McKee, 94 Mo. 241; Wendler v. Lambeth, 163 Mo 441; Hammond v. Peyton, 34 Minn. 529. Therefore, the court erred in refusing to give defendant's declaration of law in the nature of a demurrer to plaintiff's evidence. Powell v. Canaday, 69 S.W. 686. (2) It was competent to show by parol, that there was a valuable consideration for the deed from Richard Burks to appellant. 1 Jones on Real Estate in Conveyancing, secs. 295, 296, 298, 301, 302, 259; Abbott's Tr. Brief, page 271; Henderson v. Henderson, 13 Mo. 151; Draper v Shoot, 25 Mo. 197; Ribshul v. Lack, 35 Mo. 316; Laudman v. Ingram, 49 Mo. 312; Fontaine v. Bank, 57 Mo. 561; Hollacher v. Hollacher, 62 Mo. 267; Wood v. Bradley, 76 Mo. 23; Moore v. Ringo, 82 Mo. 468; Allen v. Kennedy, 91 Mo. 324; Taylor v. Crocket, 123 Mo. 300; Jones v. Geery, 153 Mo. 476; Hamilton v. Clark, 25 Mo.App. 428; Sunderlan v. Struthers, 45 Pa. St. 411. (3) The court erred in excluding the testimony of the declarations of Richard Burks. They were primarily competent as admissions of a party to the issue involved, regardless of whether they were against interest. 1 Am. and Eng. Ency. Law (2 Ed.), 713; 1 Greenleaf on Evidence (15 Ed.), secs. 181, 169. (4) And they were competent as declarations against interest. 5 Am. and Eng. Ency. Law (1 Ed.), 366; 9 Am. and Eng. Ency. Law (2 Ed.), 8; 1 Greenleaf on Ev. (15 Ed.), sec. 147, et seq.; Wynn v. Cory, 48 Mo. 446; Dickinson v. Chrisman, 28 Mo. 134; Murray v. Oliver, 18 Mo. 405; McLaughlin v. McLaughlin, 16 Mo. 242; Nichols v. Ellis, 98 Mo. 344; Hinters v. Hinters, 114 Mo. 31; Klopper v. Levi, 33 Mo.App. 322; Gunn v. Thurston, 130 Mo. 339; Cole v. Armour, 154 Mo. 333; Curd v. Brown, 148 Mo. 82; Carney v. Carney, 92 Mo. 363; Kennedy v. Kennedy, 57 Mo. 73; Ringo v. Richardson, 53 Mo. 385; Johnson v. Quarles, 46 Mo. 423. (5) Mrs. Burks was a competent witness. The court erred in striking out her testimony. 1 Greenleaf on Ev. (15 Ed.), sec. 339; Shanklin v. McCracken, 140 Mo. 348; Lynn v. Hockaday, 162 Mo. 111; Spradling v. Conway, 51 Mo. 51; Hoyt v. Davis, 30 Mo.App. 309.

Peery & Lyons and Hugh C. Smith for respondent.

(1) Where parties exchange lands and the title to one of the parcels fails, the vendee of that parcel has a vendor's lien against the other tract. Pratt v. Clark, 57 Mo. 189; Bennett v. Shipley, 82 Mo. 448; Pratt v. Eaton, 65 Mo. 157; McKee v. Christy, 94 Mo. 241; Foote v. Clark, 102 Mo. 394; Florida v. Morrison, 44 Mo.App. 529; Williams v. Crow, 84 Mo. 298; Stewart v. Wood, 63 Mo. 252; Toby v. McAllister, 9 Wis. 463; Bradley v. Bosley, 1 Barb. Ch. 125; Coit v. Fogera, 36 Barb. 195. (2) Though plaintiff may have an adequate remedy at law, by an action on the covenants of warranty, this would not preclude the equitable relief. The right to enforce the vendor's lien may exist contemporaneously with a right to recover at law. Pratt v. Clark, 57 Mo. 189; Bishop v. Seal, 87 Mo.App. 256. (3) If the title is defective or the property is incumbered, the vendee has a lien. Smilly v. Adams, 88 Mo.App. 621; Demeter v. Wilcox, 115 Mo. 634; Bishop v. Seal, 87 Mo.App. 256; Bank v. Edwards, 84 Mo.App. 462; Thompson v. Beal, 116 Ill. 113; Drinkwater v. Morman, 61 Ga. 395. (4) If a conveyance be voluntary or without consideration, or if the grantee have notice, the land is chargeable in the hands of such grantee, with a vendor's lien. Davenport v. Murray, 68 Mo. 198; Williams v. Crow, 84 Mo. 28; Skinner v. Purnell, 52 Mo. 96; 3 Pom. Eq. Jur., sec. 1253, and note. (5) The burden of proof is on the defendant to show that she is a bona fide purchaser for value in good faith and without notice. Bishop v. Schneider, 46 Mo. 432; Aubuchon v. Bender, 44 Mo. 560; Chouteau v. Burlando, 20 Mo. 482; Paul v. Fulton, 25 Mo. 156; Halsa v. Halsa, 8 Mo. 303; Ins. Co. v. Smith, 117 Mo. 294; Jewett v. Palmer, 7 John. Ch. 65; Young v. Schoffield, 132 Mo. 650; Hoffman v. Nolte, 127 Mo. 120; 22 Ency. Pleading and Practice, 734, 735, and notes; Wallace v. Wilson, 30 Mo. 335. (6) The conveyance to the defendant upon its face shows that she received from her father for a consideration of $ 10, property which the evidence shows to have been worth at least $ 2,250. There is in this record, as we shall hereafter show, no legal or competent evidence of any other consideration. Such great inadequacy of price is of itself sufficient in law to show notice on the part of defendant of the defect in her title. 2 Pom., Eq. Jur., sec. 600; Eck v. Hatcher, 58 Mo. 235; Hoppin v. Doty, 25 Wis. 573; Ins. Co. v. Smith, 117 Mo. 293; Lionberger v. Baker, 88 Mo. 454. (7) The defendant is not a competent witness for any purpose in this case. Lins v. Linhardt, 127 Mo. 271; Nowack v. Berger, 133 Mo. 24; Kane v. Kane's Admrs., 79 Mo.App. 339; Miller v. Wilson, 126 Mo. 48; Curd v. Brown, 148 Mo. 95; Miller v. Slupsky, 158 Mo. 643; Baker v. Reed, 162 Mo. 341; Tygord v. Falor, 163 Mo. 234; Sidway v. Land Co., 163 Mo. 342; St. Joseph v. Baker, 86 Mo.App. 310; Saetelle v. Ins. Co., 81 Mo.App. 509; Nichols v. Jones, 32 Mo.App. 657; Ashbrook v. Litcher, 41 Mo.App. 369; Sitton v. Shipp, 65 Mo. 297; Mullock v. Mullock, 156 Mo. 442. (8) Mary A. Burks, the widow of Richard Burks, was a party to both conveyances in issue and on trial, and Daniel Welch being dead, she is wholly incompetent to testify in favor of her daughter claiming under her. O'Bryan v. Allen, 108 Mo. 227; Messimer v. McCray, 113 Mo. 382; Nowack v. Berger, 133 Mo. 37; Davis v. Wood, 161 Mo. 17; Bieber v. Boeckman, 70 Mo.App. 506; Patton v. Fox, 169 Mo. 107; Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433; Baker v. Reed, 162 Mo. 355; Davis v. Wood, 161 Mo. 29; Patton v. Fox, 169 Mo. 107. She was clearly disqualified to prove the statements, declarations and conversation of her husband. Moore v. Wingate, 53 Mo. 398; Holman v. Bachus, 73 Mo. 49; Willis v. Gammill, 67 Mo. 730; McFadden v. Catron, 120 Mo. 253; Shanklin v. McCracken, 140 Mo. 356. (9) The declarations of a deceased grantor, as to his purpose in executing a deed, are properly excluded in a suit by a widow to set aside the deed as being voluntary and in fraud of her rights of dower. Tucker v. Tucker, 32 Mo. 464; Wood v. Hicks, 36 Mo. 326; Watson v. Bissell, 27 Mo. 220; Rice v. Waddill, 168 Mo. 99; Schierbaum v. Schemme, 157 Mo. 16; Gibson v. Gibson, 24 Mo. 227; Payne v. Payne, 57 Mo.App. 130; Woolen Co. v. Wollman, 87 Mo.App. 658; Davis v. Green, 102 Mo. 170; Grace v. Nesbit, 109 Mo. 9; Cazier v. Hinchey, 143 Mo. 203; Wilson v. Hobbs, 73 Mo.App. 656; Gentry v. Field, 143 Mo. 399; 2 Whart., Ev., secs. 1168, 1169.

OPINION

SMITH, P. J.

The salient facts of this case, as disclosed by the record before us, may be stated in this wise, viz.: That in the year 1880 Daniel Welch was the owner of two lots in the city of Trenton, and Richard Burks claimed to be the owner of one hundred acres of farm land lying near said city. Welch exchanged the city lots with defendant for his land. Each conveyed to the other by a deed of general warranty the subjects of the exchange. The consideration named in the deed of the former was $ 3,500, and in that of the latter $ 3,000. Shortly afterwards Burks conveyed to his daughter the Welch lots by deed in which the expressed consideration was "natural love and affection and the sum of ten dollars." Welch conveyed the Burks land by a warranty deed to another, and under certain mesne conveyances Thomas Brunson succeeded to the Burks title. In 1896 one Hall, in an action of ejectment against Brunson, recovered forty acres of the Brunson land. Later on, Brunson brought his action against the plaintiff as administrator of Daniel Welch--he being then dead--for the breach of the covenants of warranty contained in Welch's deed conveying the said forty acres, and recovered $ 1,125. Still later on, the plaintiff discharged said judgment.

The plaintiff brought this suit, the object of which was to obtain a decree of the court declaring that plaintiff was entitled to a vendor's lien and the enforcement thereof against said city lots for the amount of money which he was compelled to pay on account of the failure of the title to the forty acres which had been conveyed as aforesaid by his intestate, Daniel Welch. The finding and decree of the trial court was for the plaintiff and the defendant appealed.

The effect of the transaction of the exchange of properties between Welch and Burks was that the former sold to the latter his city lots for an agreed consideration of $ 3,500 and such latter in payment, or part payment, thereof, conveyed to the former his farm lands at an agreed price of $ 3,000. It is a conceded fact that such latter had no title to forty acres of the land and that to the extent of the value of that forty he did not pay to such former the contract price of his city lots. About one-third of the purchase price of the city lots has not been paid. Will not equity imply...