Roberts v. Best

• Citation: 72 S.W. 657,172 Mo. 67
• Parties: ROBERTS, Appellant, v. BEST et al
• Decision Date: 18 February 1903
• Court: Missouri Supreme Court

72 S.W. 657

172 Mo. 67

ROBERTS, Appellant, v. BEST et al

Supreme Court of Missouri, First Division

February 18, 1903

Appeal from Clark Circuit Court. -- Hon. E. R. McKee, Judge.

Reversed and remanded.

W. T Rutherford and J. W. Howard for appellant.

(1) In the petition of the plaintiff administrators in the subrogation proceeding instituted by them, it appears that plaintiff was not a party thereto, and it stands admitted by defendants that she was not a party thereto nor served with process; therefore the court did not acquire jurisdiction of the person of plaintiff, and did not have any power or authority to charge her lands with any lien in favor of the administrators in the subrogation suit. Campbell v. L. G L. Co., 84 Mo. 366; State v. St. Louis, 1 Mo.App. 503; Brown v. Woody, 64 Mo. 550; Adams v. Cowles, 95 Mo. 507; Blodgett v. Schoeffer, 94 Mo. 671; Higgins v. Beckwith, 102 Mo. 462; Railroad v. Campbell, 62 Mo. 588; Hull v Cavanaugh, 6 Mo.App. 143; Payne v. Masek, 114 Mo. 638; Fischer v. Siekmann, 125 Mo. 165. (2) Plaintiff not having been a party to the subrogation proceedings instituted by the administrators, the decree rendered by the court therein creating and establishing a lien in favor of the administrators did not, nor could not, affect plaintiff's interest in the lands charged with the lien, and the decree so rendered by the court is absolutely void as to plaintiff, and she may attack it collaterally. Hewitt v. Weatherby, 57 Mo. 278; Ray Co. v. Barr, 57 Mo. 291; McLaughlin v. Bank, 60 Mo. 437; Adams v. Cowles, 95 Mo. 507; Covington v. Chamblin, 156 Mo. 574; Lanee v. Garbee, 105 Mo. 359; Gravis, Trustee, v. Ewart, 99 Mo. 13; Fithian v. Mouks, 43 Mo. 520; Clark v. Bettelheim, 144 Mo. 258; Janney v. Spadden, 38 Mo. 402; Tourville v. Railroad, 61 Mo.App. 527; Fischer v. Siekmann, supra; Westmeyer v. Gallenkamp, 154 Mo. 28. (3) The decree rendered in the subrogation proceedings instituted by the administrators and the sale had thereunder was neither void nor irregular. The proceedings under which the sale took place assumed to reach only the interests of parties who were before the court, and they were effectual in reaching and subjecting such interest to the charge of the creditors' lien. Plaintiff was not a party to the proceeding, and defendant has no right to this equity. Burden v. Johnson, 81 Mo. 324. (4) In order to invoke the equitable doctrine of subrogation the payment must be made by one who really has an interest in discharging the demand which he pays; otherwise there will be no subrogation. Sheldon on Subrogation (Ed. 1882), p. 367, sec. 245; 24 Am. and Eng. Ency. of Law (1 Ed.), p. 281. (5) The right of subrogation must be enforced within the time prescribed as a limitation to the enforcement of simple contracts, for this merely equitable right will not be enforced at the expense of a legal one. 24 Am. and Eng. Ency. of Law (1 Ed.), p. 322; Perry v. Craig, 3 Mo. 516; Bauer v. Gray, 18 Mo.App. 173; Hoester v. Summelman, 101 Mo. 619; Bank v. Bank, 107 Mo. 133; Rogers v. Brown, 61 Mo. 187.

Charles Hiller, Berkheimer & Dawson and Blair & Marchand for respondents.

The court did not err in holding that the purchaser at the sale of the lands made by the commissioner, Mrs. Lucy T. Bartlett, was entitled to be subrogated to the rights of the creditors, whose debts the money paid by her for the land paid off and discharged the charges on the lands bound for the payment of the debts the purchase money paid. Cary v. West, 139 Mo. 146; Henry v. McKerlick, 78 Mo. 416; Valle's Heirs v. Flemming's Heirs, 29 Mo. 152; Jones v. Manley, 58 Mo. 264; Evans v. Snyder, 64 Mo. 516; Snider v. Coleman, 72 Mo. 568; Sheldon on Subrogation (2 Ed.), sec. 31, p. 51. Subrogation is a legal fiction by force of which an obligation extinguished by payment made by a third person is treated as subsisting for the benefit of such third person, so that by means of it one creditor is substituted to the rights, remedies, securities of another. Clark v. Bank, 57 Mo.App. 277. It rests on the basis of mere equity and is resorted to for the purpose of doing justice between the parties. Moore v. Lindsey, 52 Mo.App. 474; Frenold v. Bank, 44 Mo. 336; Sheldon on Subrogation (2 Ed.), sec. 4, p. 5; Davis v. Schimelman, 50 N.E. 373; Allen v. Perine, 45 S.W. 500. The rights of Mrs. Lucy T. Bartlett vested in all of the subsequent grantees of the same lands holding by deeds of general warranty. A deed of lands operates as an assignment to the grantee of all rights and defenses concerning the title or possession which belonged to his grantor. Fink v. Henderson, 19 So. 892. A remote grantee, when evicted, may sue one or all of the grantors in line of title, who conveyed with covenants of warranty, until he has obtained satisfaction. 1 Jones, Real Estate Conveyancing, secs. 936, 939; Crooks v. Jewell, 29 Me. 527; Criss-field v. Storr, 36 Md. 129; Wilson v. Taylor, 9 Ohio St. 595; King v. Kerr, 5 Ohio 154; Claycomb v. Munger, 51 Ill. 373; Cummings v. Harrison, 57 Miss. 275. Where a deed is given containing the statutory covenants and possession accompanies the deed, the covenant will enure to the benefit of the subsequent transferee. Dickson v. Desire, 23 Mo. 157. A purchaser will be subrogated to all of the rights of his vendor in the property. Sheldon on Subrogation (2 Ed.), sec. 34, p. 54; Chicago v. Tibbits, 104 U.S. 120; McKeag v. Ins. Co., 81 N.Y. 39; Sickles v. Flamigin, 79 N.Y. 224; Thompson v. Kenyon, 100 Mass. 108; Ruggles v. Barton, 13 Gray 506; Butler v. Barnes, 60 Conn. 170; Loomis v. Knox, 60 Com. 343; Murphy v. Adams, 71 Me. 113; Logan v. Taylor, 20 Iowa 297; Kemp v. Kemp, 83 N.C. 491; Chambers v. South, 23 Mo. 174; McGuire v. Riggin, 44 Mo. 512; Barnard v. Duncan, 38 Mo. 170; Sheldon on Subrogation (2 Ed.), sec. 28. A covenant of seizen in this State is more than a covenant in the present tense. It is a covenant of indemnity and runs with the land to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, though no title passes, yet in either event the covenant runs with the land and inures to the subsequent grantee who sustains the loss. Allen v. Kennedy, 91 Mo. 324; Walker v. Deaver, 79 Mo. 664; Winningham v. Pennock, 36 Mo.App. 688; Foot v. Clark, 102 Mo. 394; Lananberg v. Heer Dry Goods Co., 74 Mo.App. 12; Eagan v. Martin, 71 Mo.App. 60. In answer to the point made by the appellant, "that the right of the respondent to be subrogated was barred by the statute of limitations," we answer that this right to be so subrogated did not attach until he had been damnified by being compelled to pay in order to save his estate. Sheldon on Subrogation (2 Ed.), sec. 110, p. 160; Rittenhouse v. Levering, 6 Watts & Serg. (Penn.) 190; Joyce v. Joyce, 1 Bush (Ky.) 474; Rucks v. Taylor, 49 Miss. 552; Krider v. Isenbice, 123 Ind. 10; Bledso v. Nixon, 68 N.C. 521; Simpson v. McPhail, 17 Ill.App. 499. No subrogation to lien barred by lapse of time. Sheldon on Subrogation (2 Ed.), sec. 176, p. 268.

OPINION

ROBINSON, J.

Suit in ejectment for an undivided one-fourth interest in 120.17 acres of land in Clark county in this State. Plaintiff claims the land as an heir at law of one William Bartlett, her deceased father. Defendant's answer to plaintiff's petition is, first, a denial that plaintiff has any title to the land; then an equitable count is interposed in which the following allegations of fact are made:

"That plaintiff's ancestor, William Bartlett, was at his death the owner of the land in suit, together with other land and a large amount of property; that said Bartlett at the time of his death was largely indebted to divers persons, firms and corporations; that administration was had on his estate and that one John Roberts (the husband of the appellant), and Henry Bartlett, were duly appointed, qualified and acting administrators of his estate; that all of the debts and claims against the estate of said Bartlett were duly probated against said estate and judgment rendered thereon, which were liens against his estate; that the personal property belonging to his estate was exhausted in the payment of said claims and was insufficient to fully pay off and satisfy said allowed claims against his estate; that from time to time under orders from the probate court of said county real estate was sold for the purpose of paying said claims, and the proceeds thereof were applied to the payment of the same; that the said administrators, believing that there was enough personal property with the real estate already sold to pay off and discharge the indebtedness of the estate as allowed by said court, in good faith out of their own money paid off and discharged a large amount of the indebtedness of said estate as allowed by said court, and made settlement of said estate, which was approved; that afterwards these administrators commenced a suit in the circuit court of this county, asking to be subrogated to the rights of the creditors of said estate whose claims they had paid, and that the lands still remaining belonging to said estate be sold to satisfy such subrogated claims, which were the lands mentioned and described in the petition of the appellant; that afterwards in said cause in said court said administrators recovered a judgment and decree subrogating them to all the rights of the creditors of said estate whose demands they had paid off and satisfied, and that the lands be sold for the payment thereof; that afterwards the said lands were sold in pursuance of and in obedience to said decree by a commissioner appointed by said court in said decree, and that one Lucy Bartlett purchased said lands at said sale, paid the purchase money thereof, which purchase money was paid to said administrators in full...