Orrick v. Durham

• Decision Date: 31 October 1883
• Citation: 79 Mo. 174
• Parties: ORRICK, Appellant, v. DURHAM.
• Court: Missouri Supreme Court

79 Mo. 174

ORRICK, Appellant,

v.DURHAM.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Reed & Hall for appellant.

W. T. McCanne for respondents.

PHILIPS, C.

In February, 1872, the appellant, Orrick, purchased of D. P. Shaw a tract of land in Randolph county, receiving therefor a warranty deed, duly recorded in said county. As a part of the purchase money Orrick executed to Shaw two promissory notes, each for $333.33, of same date as deed, due in one and two years, respectively; and to secure the same executed a deed of trust to H. M. Porter, trustee, on same land. In June following, Orrick sold and conveyed this land to one J. B. Porter for the consideration of $2,675. As a part payment of this purchase money, J. B. Porter agreed with Orrick, in writing, to assume the payment of the said two notes for $333,33, each, of Orrick to Shaw, and this fact was recited in Orrick's deed to J. B. Porter, which was duly recorded July 9th, 1872. Porter then executed his note to Orrick for $1,098.89, at twelve months, for the balance of unpaid purchase money, and a deed of trust on said land to secure the same. Afterward Orrick, who lived in St. Louis, sent said note to a friend in Moberly to negotiate for him, who sold same to M. P. Durham, Orrick indorsing it.

At the maturity of this note Durham did not notify Orrick of Porter's failure to pay--Porter then being solvent. On the 13th day of July, 1873, Porter paid to Durham $488.50 thereon. In February, 1873, Porter also paid to Shaw one of the $333.33 notes--first falling due. On the maturity of the other note of $333.33, Shaw made demand of payment on Orrick, who called attention to the fact that Porter was to pay, and requested him to foreclose the deed of trust given therefor. In July, 1874, Shaw assigned this note to one Coates, whom Orrick also notified and requested as he had Shaw, whereupon in October, 1874, Coates caused said land to be advertised for sale under said deed of trust given to secure the debt. On the day fixed for this sale, and prior to any sale, Durham, to prevent the sale, paid to Coates the amount of said note, and took an assignment thereof to himself. Porter was then insolvent.

After Durham obtained this $333.33 note he sued Orrick thereon in the circuit court of St. Charles county, and recovered judgment, which judgment Orrick paid off. It appears that after this, Durham, through the sheriff of Randolph county acting as trustee, was about proceeding to sell said land under the deed of trust given by Porter to Orrick to secure the payment of the $1,098.89 note. Whereupon Orrick instituted this action in equity against Durham and the said sheriff; the object and nature of which action is to subrogate Orrick to the rights of Shaw, and the assignees of the $333.33 note, to the deed of trust given by Orrick to said Shaw to secure the payment of said note, and to postpone the payment of the $1,098.89 note to this prior lien of Orrick's as claimed by him, or to subject this land to its payment, as a prior lien to that of the $1,098.89 note, and for all proper relief. Notwithstanding the institution of this suit Durham proceeded with the sale on the following day, and bought in the land, and now claims it as free from any prior lien. The common pleas court found for defendant and dismissed the bill. Plaintiff brings the cause here on appeal. Durham has since died and the cause has been continued against his administrator.

1. WAIVER OF VENDOR'S LIEN.

As between Orrick and Porter the relation of vendor and vendee existed; and Orrick, as between himself and Porter, unless he had by some act lost or waived it, was entitled to a vendor's lien on the land, for any part of the unpaid purchase money. After paying so much cash and giving note secured by deed of trust for $1,098.89, there remained unpaid of the purchase money a sum equal to the amount of the two notes of $333.33, each, owing by Orrick to Shaw. The payment of those two notes Porter assumed as a part of the consideration money of the land. Appellant contends that as between himself and Porter, there existed a vendor's lien on the land for this unpaid purchase money. A vendor's lien is only one of implication. True, it exists in all cases, as between vendor and vendee, unless there is a manifest intention that it shall not exist. Mackreth v. Symmons, 15 Ves. 329. It may be waived, and this waiver is often one of intention. Where it can be gathered from all the facts and circumstances surrounding the sale that the vendor did not intend to retain his lien, this will as effectually destroy it as if he had taken an independent collateral security. The fact that Orrick took an express mortgage for a portion of the purchase money would indicate, on the maxim expressum facit cessare tacitum, a waiver of the lien as to the residue of the purchase money.

The authorities in support of this view are numerous and most respectable. Chief Justice Marshall in Brown v. Gilman, 4 Wheat. 290, 291, says: “The express contract that the lien shall be retained to a specified extent, is equivalent to a waiver of that lien to any greater extent.” To same effect are the following authorities: Fish v. Howland, 1 Paige 30, 31; Phillips v. Sanderson, 1 Sm. & M. Ch. 462; Bond v. Kent, 2 Vernon 281. Taking a mortgage on the land sold for the purchase money, waives the implied lien. This is the settled law of this State. Emison v. Whittlesy, 55 Mo. 254; Sharp v. Collins, 74 Mo. 266; Briscoe v. Callahan, 77 Mo. 134. In Orrick's deed to Porter it is, in effect, stated that a part of the consideration, $684.45, Porter is to pay to Shaw in liquidation of the unpaid purchase money for the land in question. This deed refers to Orrick's deed of trust to Shaw, in which it is recited that it is “given to secure the balance of purchase money” for this land. According, therefore, to the rule above stated, by implication the vendor's lien proper, as to the balance of the purchase money, was waived.

2. RECITALS IN RECORDED DEED.

But this case, on appellant's behalf, does not depend on the existence of the vendor's lien. It rests upon another foundation stone of equity jurisprudence, firmer than an implied vendor's lien, as we will develop. It is important to keep in mind that both the deed of trust from Orrick to Shaw, and the deed from Orrick to Porter, the one containing the reservation of the lien, and the other the fact of the assumption of the unpaid purchase money by Porter, were duly recorded in the proper county long prior to the assignment of the notes in question to Durham. Whatever interest or lien he acquired in and upon the land he took with constructive notice of the recitals in said deeds. A purchaser is bound to take notice of all liens shown to exist by his vendor's title deeds. McRimmon v. Martin, 14 Texas 318; Tiernan v. Thurman, 14 B. Mon. (Ky.) 277; Major v. Bukley, 51 Mo. 227. As is said by Atwater, J., in Daughaday v. Paine, 6 Minn. 452, “It is contrary to reason and good sense that a party should be excused from knowing the contents and the whole contents of his title deeds. The purchaser has possession of these title deeds, (through the records,) to all intents and purposes as fully as if they were delivered into his own hands.” In Johnston v. Gwathmey, 4 Litt. (Ky.) 321, it is held that “the effect is the same if the deeds are not recorded at all, if the party to be affected by notice claims under and cannot...