Morris v. Pate

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Morris v. Pate, 31 Mo. 315 (Mo. 1861)
• Decision Date: 31 January 1861
• Parties: MORRIS, Plaintiff in Error, v. PATE et al., Defendants in Error.

31 Mo. 315

MORRIS, Plaintiff in Error,

v.PATE et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1861.

1. The plaintiff and six others took a mortgage on land to secure a note due them by defendant Pate. At the date of the mortgage Pate had no other title to the land mortgaged except that implied in a bond for title from his vendor, and he was still indebted to the vendor for the purchase money, amounting to $640. A few days after the execution of the mortgage to plaintiff and others, Pate received a deed from his vendor, and at the same time executed to him a mortgage to secure the $640, which mortgage the vendor transferred to plaintiff for $320; and the present suit was brought to foreclose this mortgage and recover the $640. The six co-mortgagees with the plaintiff were admitted as defendants to the suit. Held, that the mortgage given to the vendor to secure the $640 has priority in lien over the other mortgage; aud that the proceeds of sale under the foreclosure should be applied first to the payment of the $320 paid by plaintiff for the prior lien, then to the extinguishment of the debt secured by second mortgage, and the surplus paid to the plaintiff until the prior claim brought by him is extinguished.

Error to Kansas Court of Common Pleas.

Prewitt & Otter, for plaintiff in error.

I. If the mortgage to Thomas had not been made at the time the deed was, it can not be supposed that he intended to lose his lien for the purchase money when he takes the mortgage on all the land for all the debt remaining unpaid, and takes it on nothing else. If it were taken on all the land for part of the debt, or on part of the land for all the debt, then it might be inferred that he did not rely on his lien for part of the debt in one case, and in the other that he did not rely on part of the land to pay his debt. But it would be a singular anomaly in the law if a party who has a private secret lien liable to be lost by a sale to another without notice, shall be held to lose his lien by putting it in writing and placing it on record, and thereby attempting to make it more secure. (Boon v. Ewing, 17 Ohio, 500.)

II. But this case is a much stronger one, for here the vendor has the legal title in himself and never allows it to pass from him unencumbered with the lien for the purchase money. The transaction must in effect be the same as if he had made a deed with a lien to himself in it for the debt. (4 Kent, side page, 38, 39; 4 Mass. 566; 14 Mass. 351; 1 Bay, 312; 4 Leigh, 30; 15 Pet. 21; 15 Johns. 458; Jackson v. Austin, 15 Johns. 477; 3 Wend. 233; 6 Cow. 316.)

III. Defendants' mortgage was made at a time when Pate had no title, and the title afterwards acquired by Pate could not enure to them under the statute of conveyances (§ 3), which only applies to deeds purporting to convey “an absolute estate in fee simple.” (13 Mo. 365.) They never had any more than Pate's equity mortgaged to them.

IV. Plaintiff, as joint mortgagee of that equity, was not prohibited from buying the debt for the purchase money secured by a mortgage of the legal title. Defendants have no rights at law, and none in equity, until they have paid off the whole of that debt, and it is no injury to them to have to pay it to plaintiff instead of Thomas. They who ask equity must do equity. (Otis v. Sill, 8 Barb., S. C., N. Y., 102.) A mortgage is only security for a debt, (Adams Eq. 110,) and a joint owner of one security ought not to be prohibited from purchasing another debt because it is secured by mortgage on the same property. A mortgagee is not a trustee within the rule. (Hill on Trustees, side page, 538, n. 1; McNair v. Biddle, 8 Mo. 257; Corley v. Rankin, 9 Mo. 642.) The defendants by their answer and the instructions they asked, declare that plaintiff did not purchase the debt from Thomas for their benefit, but for himself. They asked to have all the proceeds of the sale applied to the payment of their debt first, because theirs is the prior lien. Now having lost that point, they can not turn round and elect to receive his act as done for their benefit. They can not say we repudiate his act if ours is the first mortgage, but will claim the benefit of it if his shall turn out to be the first.

Hicks & Adams, for defendants in error.

I. The plaintiff in error and defendants, being joint mortgagees of an equitable interest in the same land to secure a joint indebtedness to themselves, stood in the relation of trustees for each other of the joint mortgage debt, and therefore the plaintiff in error could not purchase an outstanding encumbrance upon the legal title so as to charge the defendants with more than the amount he paid. His purchase enured to the joint benefit of himself and the defendants.

II. This was an equitable proceeding whatever the original action may have been. The only matter of contract...