Rogers v. Tucker

• Decision Date: 05 March 1888
• Citation: 94 Mo. 346,7 S.W. 414
• Parties: ROGERS et al. v. TUCKER et al.
• Court: Missouri Supreme Court

7 S.W. 414

94 Mo. 346

ROGERS et al. v. TUCKER et al.

Supreme Court of Missouri.

March 5, 1888.

1. VENDOR AND VENDEE — DEED TO SECURE PURCHASE PRICE — DEED TO SECURE MONEY LENT VENDEE — PRIORITY.

A deed of trust was given a vendor for the balance of the purchase money, and was recorded on the same day with the deed to the vendee, but three hours after the recordation of a deed of trust given by the vendee on the property purchased, to secure one who furnished the money to make the cash payment. Held, that the deed of trust given the vendor takes precedence, and is a prior lien.

2. PARTIES — DEFECT — WAIVER — FAILURE TO DEMUR.

The plaintiff, in an action to have a certain deed of trust given him declared a prior lien, died pending the action. The amended petition set out the death of the former plaintiff, and that the present plaintiffs were his only heirs at law. No objections were made by demurrer on ground of failure to make the administrator a party. Held, that the defect, appearing on the face of the petition, was waived by failing to demur.

3. SAME — NECESSARY PARTIES — ACTION TO ESTABLISH LIEN OF DEED OF TRUST.

In an action to have a deed of trust declared a prior lien, the trustee is not a necessary party to the action.

NORTON, C. J., dissenting.

Appeal from circuit court, Perry county; JAMES D. FOX, Judge.

This was an equitable action, originally brought by one William C. Rogers, as plaintiff, against Sophia B. Van Eeckhaute, Theodule Picou, V. P. Tucker, Mary J. Tucker, Carter Sumpter, William Eaton, Peter J. Tucker, and others, to have a deed of trust made by Sophia B. Van Eeckhaute to Theodule Picou, to secure purchase money owing plaintiff, declared a prior lien as against one made to Carter Sumpter, to secure V. P. Tucker for money furnished for the cash payment. Pending the suit, William C. Rogers and Sophia B. Van Eeckhaute died, and the heirs of each were made parties plaintiff and defendant, respectively. The present plaintiffs and respondents are Mary E. Rogers, Marion S. Rogers, May E. Hall, adults, and Bernette Rogers, Evangeline Rogers, and William Rogers, by their next friend, John B. Hilmes. The present defendants are V. P. Tucker, Carter Sumpter, William Eaton, Venantius Van Eeckhaute, and Polycarpus Van Eeckhaute, appellants. At the April term, 1884, the plaintiffs dismissed as to all the defendants except Varece P. Tucker, Carter Sumpter, William Eaton, Venantius Van Eeckhaute, and Polycarpus Van Eeckhaute, as shown by the record of said dismissal, and by the record of the final judgment rendered in this cause. In the said second amended petition, Theodule Picou, who was trustee in the deed of trust, to the use of William C. Rogers, as shown by the second amended petition, was made a party defendant, without any reason therefor being assigned by said pleading, and without any affirmative relief being asked against him. As before stated, at the April term, A. D. 1884, plaintiff dismissed as to the said Picou, since which time he has not been a party to this suit. Plaintiffs' petition, after alleging the death of William C. Rogers pending the suit, and that plaintiffs are his heirs at law, the death of Sophia B. Van Eeckhaute pending said suit, and that two of the defendants are her heirs at law, proceeds to allege that William C. Rogers, in his life-time, sold and conveyed certain real estate therein described to Sophia B. Van Eeckhaute, in her life-time, for the consideration of $3,500, by deed dated February 2, 1877; and that said Sophia B Van Eeckhaute, having previously paid $1,000 in cash, on the 28th day of February, 1877, executed and delivered to Theodule Picou, as trustee for William C. Rogers, her deed of trust on said land, to secure the payment of five promissory notes, each dated February 2, 1877, — one for the sum of $300, due September 1, 1877; and the others for $550 each, due, respectively, September 1, 1878, September 1, 1879, September 1, 1880, and September 1, 1881. That said deed of trust was filed for record February 28, 1877. That afterwards, on the same day of the execution and delivery of said deed of trust, co-defendant V. P. Tucker procured from the said Sophia B. Van Eeckhaute a deed of trust conveying said land to Carter Sumpter, in trust, to secure the payment of a promissory note of that date given by the said Sophia B. Van Eeckhaute to defendant Tucker for the sum of $650, payable 12 months after date; and that defendant took said note and deed of trust with actual knowledge and notice of the previous execution of the aforesaid deed of trust to Theodule Picou; and that co-defendant Tucker fraudulently caused his deed of trust to Sumpter to be filed for record three hours prior to the filing of the deed of trust to Picou. That on the 30th day of March, 1878, co-defendant Tucker caused said land to be sold under said deed of trust to Sumpter, and purchased said land at said sale, and took a conveyance to himself from the trustee. The petition then alleges that, by reason of the existence of the foregoing facts, a cloud rests upon the title which was conveyed to said Theodule Picou as trustee, and that the value of said security is greatly impaired; and irreparable injury will result to plaintiffs, as heirs of said William C. Rogers, deceased, unless said cloud is removed. The petition then prays the court to decree that the said deed of trust to the said Carter Sumpter, and the said sale and deed made by the said Sumpter to co-defendant Tucker, be declared fraudulent and void as far as the same affects the rights of plaintiffs; and that the deed of trust executed and delivered by the said Sophia B. Van Eeckhaute to the said Theodule Picou, trustee, be declared and decreed an existing and prior lien on said land, paramount to the incumbrance created by the prior record of the said deed of trust to said Carter Sumpter; and also a prayer for general relief. There was a judgment for the plaintiffs, from which the defendants appeal.

John V. Noell and Chas. A. Killan, for appellants. J. Perry Johnson, for respondents.

BLACK, J.

This was a suit for equitable relief. The facts were these: William C. Rogers, by his deed dated...