Rogers v. Tucker
| Decision Date | 05 March 1888 |
| Parties | Rogers et al. v. Tucker et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Perry Circuit Court. -- Hon. James D. Fox, Judge.
Affirmed.
John V Noell and Charles A. Killian for appellants.
(1) The trustee in a deed of trust as the holder of the legal title is an indispensably necessary party to a suit, materially affecting such title. Story's Eq. Plead. (3 Ed.) secs 200, 201 and 207; Barbour on Parties (1 Ed.) 529 and 530; Perry on Trusts (1 Ed.) sec. 873; Bliss on Code Pleading (1 Ed.) sec. 58; Erisman v. Erisman, 59 Mo. 367; Seimers v. Kleeburg, 56 Mo. 196; Seimers v Schrader, 88 Mo. 20; Gardner v. Austin, 31 Mo. 535; Gibbons v. Gentry, 20 Mo. 458. (2) The cestui que trust being interested in the security for his debt, is a proper party in a suit affecting his security; his interest, however, is only in the mortgage money which belongs to his personal assets, and in the event of his death, his executor or administrator, and not his heirs-at-law, should be substituted in his stead as parties to the suit. Story's Equity Pleadings (3 Ed.) sec. 200; R. S., 1879, secs. 3928 and 3301. (3) A proper party plaintiff cannot be made a defendant without sufficient reason being assigned therefor in the petition. R. S., 1879, sec. 3466. (4) Where one who is a necessary party to the suit appears upon the petition to be a party, but in reality is not a party, the proper mode of taking advantage of the defect is by answer. Bliss on Code Pleading (1 Ed.) sec. 411. (5) The burden of proof is upon the plaintiffs to show a cause of action resting in themselves and against the defendant, and while ordinarily a failure to object by demurrer to a defect of parties constitutes a waiver of such objection, yet where the plaintiffs neither allege nor prove any cause of action in themselves and against the defendant, they cannot recover, although the evidence might show a cause of action resting in somebody else. Chandler v. Bailey, 89 Mo. 641. (6) Where equities are equal the doctrine, prior in time stronger in right, applies. 2 Pomeroy's Equity (1 Ed.) secs. 718 and 719. (7) Between a mortgage or deed of trust given to a vendor to secure an unpaid balance of purchase money, and one at the same time with the knowledge of the vendor, given to a third party to secure a part payment of the purchase price made by such third party, the equities are equal. 2 Pomeroy's Equity (1 Ed.) sec. 725, and notes; Beebe v. Austin, 15 Johns. 477; Haywood v. Nooney, 3 Barb. 642; Adams v. Hill, 9 Fost. 202; Curtis v. Root, 20 Ill. 53. (8) When two mortgages or deeds of trust are executed at the same time to secure the payment of two notes maturing at different times, that is the prior lien which secures the payment of the note first falling due. Isett v. Lucas, 17 Iowa 503; Mitchell v. Ladew, 36 Mo. 526; Hurck v. Erskine, 45 Mo. 484. (9) Where one party to a contract or cause of action in issue and on trial is dead, the other party should not be permitted to testify in his own favor. Chapman v. Dougherty, 87 Mo. 617. (10) The taking of a note secured by deed of trust on the land conveyed, to secure the balance of the purchase money, is a waiver of the vendor's lien. Emison v. Whittlesey, 55 Mo. 254; Davenport v. Murry, 68 Mo. 198; 1 Hilliard on Mortgages (3 Ed.) 699.
J. Perry Johnston for respondents.
(1) The fact that our statute provides that the trustee of an express trust may sue in his own name does not, in any way, negative the right of the cestui que trust to bring suit in his own name. Rogers v. Gosnell, 51 Mo. 466; Bank v. Benoist, 10 Mo. 519; Meyers v. Lowell, 44 Mo. 328; Hanagan v. Hutchinson, 47 Mo. 237. (2) The objection that the trustee should have been made a party should have been raised by demurrer. It is too late to make it on answer. State to use v. Sappington, 68 Mo. 454; Russell v. DeFrance, 39 Mo. 506; Walker v. Deaver, 79 Mo. 672; Railroad v. Anthony, 73 Mo. 431; State ex rel. v. True, 20 Mo.App. 176. (3) No demurrer was made to the petition on account of defect of parties, and no such point was made in the answer and if ever good it has been waived. Gimbal v. Pignero, 62 Mo. 240; Dunn v. Railroad, 68 Mo. 269; Butler v. Lawson, 72 Mo. 247. (4) The trustee was not a necessary party. Rogers v. Gosnel, 51 Mo. 466. (5) The debt of Rogers, secured by deed of trust to Picou, was for the purchase money; that of Tucker, secured by deed to Carter Sumpter, for money loaned; and the fact that he took a deed of trust from Mrs. Van Eckhoute, and no security from Rogers, shows that he made the loan to Mrs. Van Eckhoute, and his lien would be deferred to that of Rogers. Cox v. Carson, 3 Head. [Tenn.] 607. (6) The recording of the deed of trust given to secure Tucker's loan before the recording of that given to secure Rogers' does not give Tucker any priority or advantage, if at the time of recording his deed he knew of the existence of the other and prior deed. Maybee v. Moore, 90 Mo. 340; Miller v. Chittenden, 2 Iowa, 315; Blain v. Stewart, 2 Iowa 378.
Black, J. Ray, J., absent. Norton, C. J., dissents.
This was a suit for equitable relief. The facts were these: William C. Rogers, by his deed, dated the second of February, 1877, conveyed to Mrs. Eckhoute certain land in this state. The deed was not delivered until the twenty-eighth day of that month. She then paid in cash one thousand dollars, and executed her notes, maturing at different dates, the last on first of September, 1881, payable to Rogers for the deferred payments, and secured the same by a deed of trust on the land, except ten acres, omitted by design. On the twenty-eighth of February, 1877, Mrs. Eckhoute sold the ten acres to the defendant, Tucker, for three hundred and fifty dollars, and at the same time borrowed of him six hundred and fifty dollars, and gave her note therefor due in one year, secured by deed of trust on the Rogers land. The money thus borrowed and the money received by her for the ten acres was paid to Rogers and constituted the cash payment made by Mrs. Eckhoute for the land. Both deeds of trust were recorded on the day they were executed, namely, the twenty-eighth of February, 1877. The deed of trust for the benefit of Tucker was recorded first by about three hours. Tucker caused the land to be sold under his deed of trust in 1878, and he became the purchaser. Rogers then brought this suit to have his deed of trust declared the first lien. The court made a decree to that effect, and Tucker appealed.
Tucker, in his answer, sets up an agreement with Rogers to the effect that he was to have the first and prior lien, but the assertion is without a particle of evidence to support it, and that issue is, therefore, out of the case. Rogers, Tucker, and Mrs. Eckhoute were all present at her house when the deeds and deeds of trust were delivered. They were delivered at the same time, namely, the twenty-eighth of February, 1877, the day on which both deeds of trust were recorded. The parties were all conversant with the different transactions and the purposes for which they were being made; and the question is, whether the Rogers deed of trust has priority over that given to Tucker.
It has been held that the vendor, by making a conveyance, and at the same time taking back a mortgage on the same property for a part of the purchase money, does not lose his vendor's lien; that it simply becomes merged in the mortgage, but not lost. Morris v. Pate, 31 Mo. 315; Linville v Savage, 58 Mo. 248. Again, it has been said in general terms, that taking a mortgage on the land sold for the purchase money waives the vendor's lien. Briscoe v. Callahan, 77 Mo. 134; Orrick v. Durham, 79 Mo. 174. The lien is doubtless waived, there being no express reservation of it, in the sense that it is not available as a basis for relief independent of the mortgage, for the mortgage is the higher security; but the mortgage is ordinarily taken back for the very purpose of securing the vendor's priority for the purchase money, and putting it out of the power of the vendee to destroy or cut off the priority by conveyance and otherwise. But however all this may be, it is but common legal learning that a mortgage for the purchase money, executed simultaneously with the deed to the purchaser, takes precedence and priority over liens arising through the mortgage. Jones on Mort., secs. 464-5-6; 2 Pom. Eq....
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