Powell v. Powell

• Decision Date: 30 March 1909
• Parties: POWELL et al. v. POWELL et al.
• Court: Missouri Supreme Court

117 S.W. 1113

217 Mo. 571

POWELL et al. v. POWELL et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

1. VENDOR AND PURCHASER (§ 261)—VENDOR'S LIEN—ASSIGNMENT—EVIDENCE.

Evidence held to show that the owner of a vendor's lien transferred by assignment all his title and interest therein to others, and did not merely transfer the lien to them for collection.

2. VENDOR AND PURCHASER (§ 261)—VENDOR'S LIEN—ASSIGNMENT—BONA FIDE PURCHASER.

Evidence held to show that persons purchasing a vendor's lien from the former owner after it had been assigned to another were not bona fide purchasers without notice of the prior assignees' claims.

3. ESTOPPEL (§ 91)—EQUITABLE ESTOPPEL— FAILURE TO ASSERT CLAIM.

Where persons purchased a vendor's lien with notice that it had been already assigned to others, and brought suit against the lienees, obtaining judgment, the prior assignees were not estopped to assert their claim to the judgment, where they were not made parties to the suit to enforce the lien and did not cause the persons suing to enforce it to change their position nor in any way mislead them.

4. VENDOR AND PURCHASER (§ 269) — VENDOR'S LIEN — ENFORCEMENT.

The land subject to the lien having been already seized and sold for its satisfaction by the subsequent purchasers of the lien, the remedy of the prior assignees would not be against the land in an action against the lienees.

5. CANCELLATION OF INSTRUMENTS (§ 55) — EQUITY—RELIEF.

Under the rule that equity having once acquired jurisdiction will grant full relief, where a vendor, after having assigned the lien, again assigned it to others, who had notice of the other assignment, and gave them a quitclaim deed to the land, and the holders of the second assignment and deed sued the lienees, obtained judgment, and sold the land for payment of the debt, the court, upon setting aside the quitclaim deed at the suit of the prior assignees and true owners of the lien, could give them the full benefit of the judgment obtained from the lienees.

6. CANCELLATION OF INSTRUMENTS (§ 35) — PARTIES.

The lienees having had their day in court when the lien was enforced against the land, it was of no consequence to them who had the right to enforce the judgment against them, and it was not necessary to make them or their representatives parties in the suit by the true owners of the lien against those who had enforced it.

7. SUBROGATION (§ 1)—TRANSFER OF JUDGMENT AGAINST VENDOR'S LIENEES TO OWNER OF LIEN.

The transfer of the judgment from the subsequent purchasers of the lien to the prior assignees and true owners involved neither legal nor conventional subrogation.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

Action by T. Cole Powell and another against L. B. Powell and others. Decree for plaintiffs, and defendants appeal. Affirmed.

J. R. Brewer and W. S. C. Walker, for appellants. C. G. Shepard and Sam J. Corbett, for respondents.

BURGESS, J.

This is a proceeding in equity, instituted in the circuit court of Pemiscot county for the purpose mainly of divesting out of the defendants all of their right, title, and interest in and to a certain judgment previously rendered in said circuit court, and investing the same in plaintiffs herein. Upon application for change of venue, the cause was transferred to the circuit court of Dunklin county, where trial was had and a decree entered in favor of plaintiffs, from which decree the defendants have prosecuted this appeal.

The facts developed at the trial of the cause are as follows:

T. C. Powell, father of plaintiffs, T. Cole and J. H. Powell, and of defendant L. B. Powell, was owner of several large tracts of wild timber land in Pemiscot county, Mo., and resided in Tennessee, just across the river from the city of Caruthersville, Pemiscot county, in which city lived his said three sons. On the 6th day of May, 1896, he and one J. W. Canady entered into a contract in the nature of a warranty deed, by which he conveyed to said Canady lands owned by him in Pemiscot county, and described as the west half of section 13, all of section No. 14 except the north half of the northeast quarter, the north half of section No. 23, the east half of the southeast quarter of section No. 12, the northwest quarter of section No. 12, the north half of the northeast quarter of section No. 12, all of section No. 15, all in township No. 17 north, of range No. 12 east; retaining in said conveyance a vendor's lien on said lands for the purchase price of $5 per acre. Canady paid $500 of the purchase price, and went into possession of the lands, and began cutting and removing the timber thereon. He made some other small payments to Powell, also paying some back taxes, and failed to make further payments.

In the latter part of the year 1900 T. C. Powell made an assignment of said vendor's lien to his sons, J. H. and T. Cole Powell, and delivered same to Dinning & Bragg, attorneys, in the city of Caruthersville, stating to them that said contract and vendor's lien had been assigned by him to the said parties, and that T. Cole Powell would arrange about making bond for suit if suit should be found necessary. Later, T. Cole Powell called on said attorneys, and suggested that suit should not be brought at that time. It also appears that T. Cole Powell, at that time or later, took the paper out of the possession of said attorneys, went to the office of C. B. Farris, another attorney of the city of Caruthersville, and consulted him about the matter of bringing suit to enforce the lien, and, Mr. Farris having informed him that he could not undertake to bring suit for him for the reason that the interests of other clients of his would be affected thereby, he returned the paper to Attorneys Dinning & Bragg. Mr. Farris testified that he examined the contract and vendor's lien at the time; that his recollection was that the assignment was in the ordinary form, and that the same was properly acknowledged.

On February 13, 1902, defendant L. B. Powell, who was known as Bunk Powell, procured from his father, T. C. Powell, a written assignment of all his right, title, and interest in and to the contract and vendor's lien which had previously been assigned by T. C. Powell to the plaintiffs, and at the same time procured from him a quitclaim deed to all the lands mentioned in said contract. As to this transaction the testimony of A. P. Campbell and his wife, who were living at the time with T. C. Powell was to the following effect: Bunk Powell came to see the old man two or three times for the purpose of purchasing this contract and vendor's lien from him. The old man explained to him that he had already assigned the contract and lien to his sons J. H. and T. Cole Powell, and that he could not assign the same to him except subject to their approval, or unless he could procure the paper from them. To this Bunk replied, "All right; I can get it from them myself." Campbell drew up the assignment and deed, and his understanding was that Bunk was to pay the old man $2,250 as consideration therefor, but he did not know whether he ever paid that sum. He did know, however, that Bunk afterwards gave the old man some horses, mules, and old wagons. On being asked if he was present when the papers were signed and delivered to Bunk by his father, witness Campbell replied, "No, sir; the old man was very ill at the time this trade was made, and Bunk rode off to get a notary—drove off in a run nearly—and he got back there, and they got it signed up some time that night." In the course of a conversation between Campbell and Bunk a few weeks after the trade was consummated, Bunk informed witness that J. R. Brewer and J. J. Williams, defendants herein, were interested with him in the trade, and remarked, "I am out nothing; Mr. Williams puts up so much money, and Mr. Brewer does the lawing, and I get one-half of what we get out of it." Campbell had a conversation also with T. C. Powell after the assignment to Bunk, and the old man remarked that Bunk was buying against chances, and that, if he did not get the papers from the other parties, he was out. Mrs. Annie Campbell, wife of witness A. P. Campbell, testified that at the time the deal was made the old man told Bunk Powell that he would assign the lien to him if he would obtain from T. Cole and J. H. Powell their interest in it. She copied the written assignment to Bunk Powell in a book at T. C. Powell's house. Other testimony showed that after the death of T. C. Powell, which occurred in August, 1903, Bunk Powell had charge of all his books and papers, and that before this trial the leaves of the book containing said copy of the assignment had been torn out.

With reference to the transaction with his father, Bunk Powell testified that he paid his father, as consideration for the assignment to him of the lien, $500 in cash, also delivered to him six horses, one mule, a log wagon outfit, a road wagon, and paid $104 on a note owing by him. In all, he paid him $1,550, or its equivalent. He further testified that it was his understanding that the assignment to Cole and J. H. Powell was merely for the purpose of collecting the debt secured by the lien, and that they were to get 10 per cent. of the amount collected; that, after the assignment to him, J. H. Powell wrote him a letter in which he offered to sell him his interest in the contract and lien for $500. This letter, however, was not produced by the witness.

Upon procuring said assignment from his father, Bunk Powell went to the office of Dinning & Bragg and stated that he had made a trade with his father, and that his father sent him for the contract and vendor's lien which had been assigned to T. Cole and J. H. Powell, whereupon he was given possession of the papers. Thereafter, on April 4, 1902, he transferred and assigned to his codefendants, J. R. Brewer and J. J. Williams, for a consideration of $2,000, a 40/83 interest in the debt and vendor's...