Smith v. Schneider

• Decision Date: 31 October 1856
• Parties: SMITH, Respondent, v. SCHNEIDER AND OTHERS, Appellants.
• Court: Missouri Supreme Court

23 Mo. 447

SMITH, Respondent,

v.SCHNEIDER AND OTHERS, Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. A., having purchased real estate at a partition sale, paid a portion of the purchase money, and gave bond, with B. as security, for the residue; C. purchased at sheriff's sale all the interest of A. in the land; A., not having paid the residue of the purchase money, B. was compelled by suit to pay the same; A. had received no deed for the land: held, that by the payment of the residue of the purchase money, B. became subrogated to the right of the original owners, and might subject the land in the hands of C to the payment to himself of the money so paid by him.

Appeal from Ste. Genevieve Circuit Court.

This cause was decided on a demurrer to the petition. The petition set forth substantially that at a public sale in partition on the 17th of May, 1853, one Simms became the purchaser of certain real estate; that, in compliance with the terms of the sale, he paid ten per cent. of the purchase money and gave his bond to the sheriff for the residue, about ninety-two dollars, with Smith, the plaintiff, as his security, the bond being payable in twelve months; that the bond not being paid on its maturity, judgment was obtained thereon, and, Simms being insolvent, the plaintiff, Smith, was compelled to pay said judgment, &c. that since the purchase of Simms, the defendant Schneider had become the purchaser at sheriff's sale of all Simms' right, title and interest, and had received a deed from the sheriff; that Simms is insolvent. Plaintiff therefore prays judgment against Simms, who is a party to the suit, for the amount of his debt; also that the land in the hands of Schneider be subjected to the payment thereof. The sheriff was also made a party defendant to this suit.

The demurrer of defendants was overruled, and judgment given for plaintiff; defendant Schneider appealed.

J. F. St. James and T. C. Johnson, for appellants.

I. If the legal title had passed to Simms, there would be no doubt in this case. The taking of security for the purchase money is a complete waiver of any lien upon land. (Gilman v. Brown, 1 Mason, 217; Delassus v. Poston, 19 Mo. 430; 1 White's Lead. Cases in Equity, Am. ed., 273, and authorities cited.)

II. Even if the lien existed, it could not be enforced against creditors and purchasers without notice. (1 White's Lead. Cases, 280.) Schneider is a creditor, and by his judgment and execution had both a legal and equitable lien. He is also a purchaser without notice. There is no...