Lewis v. Chapman

• Decision Date: 31 March 1875
• Citation: 59 Mo. 371
• Parties: EDWARD A. LEWIS, Plaintiff in Error, v. JOHN CHAPMAN, Defendant in Error.
• Court: Missouri Supreme Court

59 Mo. 371

EDWARD A. LEWIS, Plaintiff in Error,

v.JOHN CHAPMAN, Defendant in Error.

Supreme Court of Missouri.

March Term, 1875.

1. County school lands--Suit on bond given for purchase money--Sale of title of obligor--County lien, extinguishment of--Subrogation, etc.--Purchase under deed of trust.

A. bought certain county school lands giving bond for the purchase money. In suit by the county on the bond, the petition, among other things, asked a special judgment, ordering sale of the land, and to foreclose defendant's equity of redemption; and the judgment and execution conformed thereto. But the sheriff's deed conveyed merely “the right, title and interest of A.” Prior to the judgment, A. had encumbered the property with a duly recorded deed of trust under which it was afterwards sold to a third party. Held, 1st. that the judgment and execution in the suit against A. authorized a sale of the title held by the county as well as that of A.; but that without the sale and sheriff's deed, said judgment and execution conveyed no title, and that under the sheriff's deed, C. got nothing but the title of A. which was subject to the deed of trust and the vendor's lien, and was lost by the sale under the deed of trust. But held further, that as the manifest intent of the judgment against A. was to sell the entire estate, and as but for the mistake of the sheriff in executing his deed, the whole title would have passed, and as the money paid by B. at the sheriff's sale in point of fact went to extinguish the vendor's lien of the county, C. should be subrogated to the rights of the county in its lien to the extent of the money so paid.

Error to St. Charles Circuit Court.

E. A. Lewis, in propria persona.

I. The deed of trust under which plaintiff claims, was executed and recorded several months prior to the judgment under which the defendant purchased. Unless, therefore, the execution sale carried with it the original title held by the State, preserved through the county's sale to Judge, in the shape of a vendor's lien, and so transmitted to defendant through the judgment, execution and sheriff's deed, the plaintiff in error has manifestly the better right, and is entitled, as the true legal representative of Judge, to all the benefit of the patent. It then becomes essential for defendant to show not only that the judgment was in its form and terms an enforcement of the vendor's lien, but that the execution, sale, &c., consummated its operation in that capacity. Such a proceeding, if calculated to carry the entire title to a purchaser under execution, must devote to sale and transfer the legal and equitable titles of both parties, vendor and vendee. If the vendor has retained the legal title, that must be sold along with the equitable title of the vendee. If he has made a conveyance, his equitable title or lien for the purchase money must go along with the vendee's legal title, in order to make the sale complete. In either case, the proceedings accomplish a transfer, not merely of the interest of one party or the other, but of “the property” itself. (Gaston vs. White, 46 Mo., 486.)

II. While the judgment in this case may have been sufficiently comprehensive, yet it could accomplish nothing without execution, sheriff's sale and deed to the same effect. The sheriff can exercise no power not contained in the writ. (Maupin vs. Emmons, 47 Mo., 309.) He cannot go to the judgment record to find any additional authority; nor can the purchaser under execution claim any more than the sheriff sells and conveys. (Strain vs. Murphy, 49 Mo., 337.) The defendant, then, never acquired from any source, more than “all the right, title, claim, interest and estate of James Judge,” as expressed in the sheriff's deed.

III. The “right, title and interest of James Judge” was precisely the same thing that was conveyed by means of the trust deed to the plaintiff in error, and also by the sheriff's deed to the defendant in error, under a judgment of subsequent date. How can it be that the prior conveyance will not hold against the other? The lien, if any, before the judgment, was upon the land, and not upon Judge's equity. That equity he conveyed in the deed of trust. It was competent for the vendor to extinguish it by a sale of the entire title, upon a foreclosure of the equity. But no such sale was ever made. (Broadwell vs. Yantis, 10 Mo., 401; Hall vs. Jones, 21 Md., 447; Richardson vs. Stillinger, 12 G. & J., 477.)

IV. There are no equities to be adjusted between the parties, as a condition of the plaintiff's right to recover. The defendant did not purchase at the sheriff's sale upon any false light held out by the plaintiff. The deed of trust was then upon record, but the defendant defied it. It is a well established rule that any payment on a mortgage debt or lien, out of the funds of the debtor, so far extinguishes the mortgage or lien in favor of the next incumbrancer. This rule entitles the plaintiff, and not the defendant, to all benefit of the payment made on the judgment out of Judge's personal assets. (Kinley vs. Hill, 4 Watts & Serg., 426; Perkins vs. Dibble, 10 Ohio, 433.)

Lackland & Broadhead, for Defendant in Error.

I. Chapman's is the prior title, being under the foreclosure of the lien for the original purchase money due from Judge as far back as 1854, of which Lewis was bound to take notice. (Adams vs. Cowherd, 30 Mo., 459; Broadwell vs. Yantis, 10 Mo., 401-2.) Lewis' title is under a deed of trust executed by Judge in May, 1866, subject to all claims of the school for the unpaid purchase money.

II. The school, in the suit in the Circuit Court, not only foreclosed the equity of redemption of Judge, but sold the whole title. The sheriff's deed to Chapman by virtue of the judgment, special execution, and by force of the law relating to school lands, conveyed the whole title discharged of every claim subsequent or prior. The prayer of the petition is, that the “court render a special judgment, ordering the sale of the land to pay said purchase money, and to foreclose whatever equity of redemption said James Judge may have in and to said land, and to render whatever other relief may be just and equitable.” The judgment of the court was in conformity with the prayer of the petition. Judge's equity of redemption was foreclosed and the land ordered to be sold to “satisfy said debt and damages, interest and costs.”

The statute evidently contemplated and intended that the full title to the school lands in 16th sections should pass by such foreclosure and sale. (R. C. 1855, p. 1412, § 35; Gaston vs. White, 46 Mo., 486; Lumley vs. Robinson, 26 Mo., 364; Ficklin vs. Stephenson, 33 Mo., 341; Adams vs. Cowherd, supra; Broadwell vs. Yantis, supra; Wilson vs. School Town. No. 6, 23 Mo., 416; Duke vs. Brandt, 51 Mo., 222.)

VORIES, Judge, delivered the opinion of the court.

This action was in the nature of a bill in chancery, the object of which was to divest the title to certain lands in the petition named out of the defendant, and to vest the same in the plaintiff. The substantial charges in the petition are: that the sheriff of St. Charles county, under the authority of the County Court of said county, on the 11th day of October, 1854, sold to one James Judge the south-west quarter of the south-west quarter of section 16, in township 48, of range 5 east; containing 39 54-100 acres, being part of the lands donated by act of Congress to this State for purposes of education; that Judge purchased the land at the price of $316 32-100, for which he executed his bond with defendant as his security; that said Judge or his assigns thereby became entitled, by the payment of the purchase money, to receive a patent from the State vesting the title to said land in said Judge or his assigns in fee simple; that on the 12th day of May, 1866, the said Judge executed and delivered a deed of trust by which he conveyed to one A. Griffith, as trustee, all of his title and interest in said land in trust for the payment of certain indebtedness from said Judge to the plaintiff, with power of sale in the trustee if default was made in the payment of said debt as therein stated; that default was afterwards made, and said Griffith, pursuant to the provisions of said deed, on the 9th day of March, 1869, sold said land to plaintiff at auction for the price and sum of $5, and then conveyed by deed of that date all of the right and interest of said Judge in said land which could be conveyed by virtue of said deed of trust. Whereby it is charged that plaintiff became entitled to receive a patent for said land from the State whenever the bond executed by said Judge for said land should appear to have been paid. The petition further states that long prior to the sale by said Griffith to plaintiff, on the 31st day of May, 1867, the said bond of said Judge, for the purchase money of said land, together with all interest thereon, was fully paid by means of a sale under executions in favor of St. Charles county of the personal property of said Judge; by means of which plaintiff became entitled to a patent from the State for said land; that the defendant, knowing of the rights of the plaintiff, and fraudulently intending to wrong plaintiff, by false representations and by pretending that he was the legal assignee of the said Judge, and entitled to his interest in said land, procured a patent to be issued to him from the State of Missouri, dated 25th day of May, 1870, by which the legal title to said land was vested in defendant, etc.

Plaintiff therefore prays a decree declaring defendant a trustee holding the real estate for the benefit of the plaintiff, and requiring that the legal estate be vested in plaintiff, etc.

The defendant in his answer admits the purchase of the land by Judge, as the same is charged in the petition, but denies the other allegations of the petition, except that he holds the legal title to the land in controversy. The answer then states as a defense to pl...