Pratt v. Eaton

• Decision Date: 30 April 1877
• Parties: PRATT, PLAINTIFF IN ERROR v. EATON, ET. AL.
• Court: Missouri Supreme Court

65 Mo. 157

PRATT, PLAINTIFF IN ERROR

v.EATON, ET. AL.

Supreme Court of Missouri.

April Term, 1877.

Error to Cole Circuit Court.--HON. GEO. W. MILLER, Judge.

E. L. Edwards & Son for plaintiff in error.

1. Mrs. Clark having failed to remove the incumbrance as stipulated, equity will enforce a specific performance of the contract. 1 Sto. Eq., § 30; 2 Ib. Tit., Specific Performance.

2. Pratt has a vendor's lien on the mill property to secure the payment of the purchase money with interest. Pratt v. Clark, 57 Mo. 189.

3. The pretended sales by Eaton to Mrs. Clark, and by her to her son, Luther Hickok, were made long after the commencement of this suit.

4. The fact that Mrs. Clark paid more than her proportion of the purchase money, if true, will not prevent Pratt from holding a vendor's lien for the unpaid purchase money.

5. The allegation of Mrs. Clark in her answer, that she had bought Eaton's interest in the land and sold the same to her son, Luther Hickok, who in turn had sold it to one Linsenbarth, and that she had received the full amount of the purchase money before the commencement of this suit, is not supported by one particle of evidence.

6. The obligation given by John Clark and Henry Eaton to indemnify Pratt against any loss resulting from the failure to remove or pay off said incumbrance, was no waiver of the vendor's lien of Pratt on the land sold by him to Mrs. Clark and Eaton. John Clark was bound by his covenant of warranty in the deed from Mrs. Clark and John Clark to Pratt for lot 110. Eaton was one of the vendees of the land sold by Pratt to them, and Pratt had a lien on the land, against him, as a purchaser, for the unpaid balance of the purchase money. He only undertook to do in the bond, what the law would have compelled him to do had he not given the bond; that is, it would have enforced the vendor's lien, on the land for the balance of the purchase money. Delassus v. Poston, 19 Mo. 425: Skinner v. Purnell, 52 Mo. 96; Gill v. Clark, 54 Mo. 416; Sitz v. Deihl, 55 Mo. 20; Emmerson v Whittlesey, ib. 259; Lead. Cas. Eq. 272.

7. A security is not a positive waiver of the lien, or its extinguishment. If a security is taken, the burden of proof lies on the vendee to show that the vendor agreed to rest on that security and to discharge the land. (2 Sto. Eq., §1226.) Even the taking an independent security, as, for instance, a mortgage on another estate or a pledge of personal security, has been held not to be conclusive evidence that the lien has been waived. Id. Brown v. Gilman, 4 Wheat. 290; S. C. 1 Mason 212; Hughes v. Kearney, 1 Sch. & Lefr. 135; Saunders v. Leslie, 2 B. & Beatt. R. 514.

Lay & Belch for defendant in error.

1. When Pratt sold this property to Eaton, and took from Mrs. Clark other property upon which there was an incumbrance, with an express agreement with her that she was to pay off that incumbrance, this showed his intention to rely on that promise, and thereby waive the equitable lien. This was a separate special agreement with her and not an agreement with her and Eaton.

2. He waived his lien by taking the obligation of Clark and Eaton to pay off the incumbrance when due. The matter of removing the incumbrance was a separate and distinct contract between Mrs. Clark and Pratt; nor was John Clark a party to the contract of purchase by Mrs. Clark and Eaton. By his bond of indemnity he obligates himself when there was no obligation before. No anterior verbal agreement had any binding effect on him. He was not bound by the warranty in the deed, for he gave none. The bond shows an express intention to vary the original contract. It reads: “For the further consideration of one dollar, to us in hand paid, we do obligate and bind ourselves to pay off and discharge said note when the same shall become due and payable; and all interest and costs that may be due thereon, and in default of such payment by us, to save the said Pratt harmless.” This is not only a waiver by operation of law, but by the express agreement of parties. 1 W. & T. L. C. 364; Adams v. Buchanan, 49 Mo. 64; Delassus v. Poston, 19 Mo. 425; Emmerson v Whittlesey, 55 Mo. 254; Durette v. Briggs, 47 Mo. 356. The fact that Clark was the husband of one of the contracting parties, and acted as the agent for his wife, does not change the law. The plaintiff seems to rely on the fact, that Clark was and continued insolvent; this does not change the law. It is accepting personal security that evidences the intention to waive the equitable lien. The legal effect attached the moment Pratt accepted Clark's bond and was not held in abeyance, dependent upon his future solvency or insolvency.

3. Mrs. Clark had long before the institution of this suit sold out, and conveyed all her interest, and her vendees should be made parties.

1. EQUITY: vendor's lien; exchange of realty: agreement to remove incumbrance.

SHERWOOD, C. J.

This case was here before, (57 Mo. 189) when we took occasion to declare our views in respect to vendor's liens. When the case was remanded, the defendant, John Clark, having died, and Eaton failing to answer, Mrs. Clark answered, putting in issue the allegations of the petition and setting up certain matters of defense which will be hereafter adverted to. On the hearing, the result was adverse to the plaintiff, and he comes here by writ of error. The case before us, had its origin as will be seen by the volume referred to, in an exchange of certain real estate known as Pratt's Mill, owned by plaintiff, for in-lot No. 110, in the City of Jefferson, owned by Mrs. Clark as her separate estate. The substance of the agreement was, that Mrs. Clark was to convey the above mentioned lot in part payment for the mill tract, which was to be conveyed by Pratt to Mrs. Clark and Eaton, and Mrs. Clark was, upon the exchange of titles, to remove an incumbrance, then existing on the city property for $1,000. On the exchange of deeds this contract was not complied with, and after vain efforts to have it done, plaintiff was forced himself to satisfy the incumbrance, and therefore brings this suit for specific performance of the agreement, and to have a vendor's lien declared against the mill tract property, to the extent of the incumbrance he was thus compelled to remove.

2. VENDOR'S LIEN: waiver of.

We pass as unworthy extended comment one of the defenses that Mrs. Clark had conveyed anterior to the institution of the suit, the real estate now sought to be charged to one Luther B. Hickok and he to one Linsenbarth, as there is not a particle of evidence offered in support of that allegation, nor of the one that Hickok was a purchaser without notice. So that the only question of any practical importance is whether there has been a waiver of the vendor's lien on the mill tract by Pratt in accepting the bond given to him by Clark and Eaton. This bond was conditioned that the obligors therein should pay off the incumbrance on in-lot 110, and to save Pratt harmless. We do not regard this bond in the light of a collateral or independent security, whose acceptance would be held as tantamount to a waiver of Pratt's lien on the tract which he exchanged for the city property; for the reasons that Eaton was one of the vendees, and, therefore, could not be regarded as a third person; and as to Clark, although his notorious insolvency would not perhaps affect the question, yet he was already bound by his covenants contained in the deed from himself and wife to Pratt, and expressed in the words “ grant, bargain and sell,” and his bond could do no more. But conceding that this view is not wholly free from question, still the acceptance of the bond cannot, under our decisions, be held as conclusive evidence of the waiver which it is claimed had occurred. ( Durette v. Briggs, 47 Mo. 356. In Sullivan v. Ferguson, (40 Mo. 79) where a guaranty very similar to the bond above mentioned, was given by a thirdperson, doubt was expressed as to its sufficiency to abrogate the lien, and so the case was not put alone on that ground. If the delivery of even an independent personal security is not conclusive, then evidence of intention is admissible; and it would seem the duty of the vendor who desires to resist the inference to be drawn from the acceptance of such independent security, to introduce competent testimony to the effect that he did not design to relinquish his lien. ( Durette v. Briggs, supra.) In the case at bar, the lien had already existed for months before the bond was given, showing that there was no intention at least, at the outset, to waive the lien. All the cases cited from the books, show a waiver before the lien had ever attached. But Pratt's intention not to accept the bond as a bar of his vendor's lien, is conspicuously shown by the prominent fact that after the bond was given, he continuously demanded of Clark who, down to the time of his death was his wife's agent, to perform the contract and remove the incumbrance, as he and his wife had agreed. And that the wife so agreed, is admitted both in her answer and in her testimony, and that Clark himself, long after the bond was given, still viewed the...