Appeal
from Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Judge.
OPINION
GRAVES, J.
This is
an action to have declared and enforced a conceived lien
upon forty acres of land in Schuyler county, and as a basis
therefor, the following written instrument is pleaded, viz:
"This
Indenture made and entered into this first day of June, A. D.
1894, by and between Jacob Sommer Jr. (P. O. Lancaster, Mo. 5
miles N. E. Lancaster, Mo.) of the county of Schuyler and
State of Missouri, party of the first part, and Stark Bros.
Nurseries & Orchards Co. of Louisiana, county of Pike and
State of Missouri, parties of the second part;
"Witnesseth,
that the said party of the first part in consideration of the
second parties selling and shipping to him in the fall of
1894 or spring of 1895, to Lancaster, Mo., railroad freight
charges prepaid, one hundred dollars worth of fruit trees and
binds himself, his heirs and assigns, to plant said trees on
his farm containing sixty acres, situated, in Schuyler
county, State of Missouri, and more particularly described as
follows: N. E., N. E., sec. (29) twenty-nine; also west half
N. W., N. W., sec. twenty-eight (28), sections 28 and 29,
township 67, range 14, boundaries north, John Casteel, east,
Wm. Enlow, south, J. B. Nichols, west, James Jones, and to
pay to the order of said second parties, their heirs or
assigns, as evidenced by his ten promissory notes to be
executed by said first party to second parties when the
aforesaid trees were shipped. One hundred dollars due and
payable as follows: all deferred interest and payments and
interest hereinafter particularly specified to date from the
first day of December, 1894, one-tenth in one
(1), one-tenth in two (2) years, one-tenth in three (3)
years, one-tenth in four (4) years, one-tenth in five (5)
years, one-tenth in six (6) years, one-tenth in seven (7)
years, one-tenth in eight (8) years, one-tenth in nine (9)
years, one-tenth in ten (10) years, with interest at the rate
of six (6) per cent per annum, and if the interest be not
paid annually to become as principal and bear the same rate
of interest; to the payment of which sums as the same shall
become due the party of the first part binds himself, his
heirs, assigns and grantees of and to the aforesaid described
lands, the right being reserved to the said party of the
first part to pay the full amount remaining unpaid and not
yet due, together with accrued interest at any time he may
elect within the period of nine (9) years next after date
last above written. And the said first party for the purpose
of obtaining this credit states that the above real estate is
free and clear of encumbrances and that he claims the same
with a perfect title, except mortgage for seven hundred
dollars.
"In
Witness Whereof, we have hereunto set our hands this the day
and year first above written.
"Witnessed
by J. Chambers. Jacob Sommer (Seal.)
Stark
Bros. (Seal.)"
This
written instrument was duly acknowledged by Jacob Sommer,
Jr., on June 2, 1894, and filed for record in the
recorder's office of Schuyler county, June 9, 1894.
The
prayer of the petition is as follows:
"Wherefore,
plaintiffs pray that they have special judgment for the sum
of one hundred and sixty dollars and interest from the date
of the filing of this petition and that said judgment be made
a first lien on the land last described, to-wit, the east
half of the northeast quarter of the northeast quarter of
section 29, and the west half of the northwest
quarter of the northwest quarter, of section 28, all in
township 67, range 14, in Schuyler county, Missouri, that all
equities of redemption be foreclosed and that said lien be
enforced and that said real estate or so much thereof as may
be necessary to satisfy said judgment together with costs of
suit be sold and that a special scire facias be
issued thereupon and for costs and for general relief."
The
petition charges the delivery of the trees as per the written
instrument aforesaid, and the planting of the same upon the
land in dispute, and a failure to pay the contract price. The
petition further charges that at the date of the written
instrument aforesaid the land was free and clear of
incumbrance, except a mortgage of five hundred dollars to H.
A. Brinkeman, and a second mortgage to Allen Updyke for two
hundred dollars; that Sommer paid both of these mortgages in
full October 16, 1895, and the liens thereby created were
satisfied upon the margin of the record of said mortgages;
that Sommer died November 1, 1895, but prior thereto, and on
September 2, 1895, he and his wife executed a deed of trust
covering forty acres of the land in the contract mentioned to
the Phoenix Mutual Life Insurance Company to secure a loan of
three hundred and fifty dollars; that in
1897, this deed of trust was foreclosed and the said forty
acres of land sold to Jacob Gardner for six hundred and fifty
dollars; that Gardner afterward conveyed said land to W. N.
Enlow and Louis I. Enlow, and that they, upon the day of
their purchase, executed a deed of trust to the Hill-Dodge
Banking Company for one thousand and seventy-five dollars and
also a deed of trust to John C. Mills for $ 53.75; that the
Enlows thereafter conveyed to Ed. Martin. Ed. Martin, John C.
Mills and the Hill-Dodge Banking Company were made
defendants.
Defendants Mills and Hill-Dodge Banking Company file
their separate answer in these words:
"The
said defendants, John C. Mills and The Hill-Dodge Banking
Company, for their separate answer to plaintiff's
petition, deny all allegations therein except as herein
admitted and averred.
"Further
answering, they aver that said Jacob Sommer, Jr., had no
interest in the lands in said petition described on June 1,
1894, nor had he any interest therein until October 15, 1895,
when he acquired the title thereto in fee; that in
contemplation of purchasing said land and in order to raise
the money to pay therefor said Sommer made a loan of the said
Phoenix Mutual Life Insurance Company of three hundred and
fifty dollars, on September 2, 1895, and to secure the
payment of his note to said company, said Sommer on said day
executed a deed of trust to said company, whereby he granted,
bargained, sold and conveyed said forty acres of land
described in said petition to said Phoenix Mutual Life
Insurance Company, to-wit, the east half of the northeast
quarter of northeast quarter of northeast quarter, section
29, and west half of northwest quarter of northwest quarter,
of section 28, township 67, range 14, in Schuyler county,
Missouri, with covenants of warranty, seizin and further
assurance of title, with which three hundred and fifty
dollars said Sommer paid the purchase price of said forty
acres of land; that thereafter said deed of trust was duly
foreclosed and said land duly conveyed under the power
contained in said deed of trust to said Jacob Gardner on
December 15, 1897, and said Gardner afterwards conveyed said
land to said W. N. Enlow and Louis I. Enlow at the time
stated; that said W. N. Enlow and Louis I. Enlow duly
executed deeds of trust to these defendants respectively as
stated in the petition to secure the payment of the sums
stated, which were for loans made for these
defendants respectively in good faith, and which loans are
wholly unpaid and said deeds of trust are still in full force
and first liens on said lands; that said Enlows conveyed said
lands to said Ed. Martin, who is now the owner thereof,
subject to said deed of trust; that all of said conveyances
were made in good faith, for valuable considerations and
without notice of plaintiffs' pretended claim and lien.
"Having
fully answered, defendants pray to be discharged with their
costs."
Defendant,
Ed. Martin, answers thus:
"Now
comes the defendant, Ed. Martin, and for his answer to
plaintiffs' petition in the above entitled cause denies
each and every allegation therein contained.
"For
further answer, defendant says that he is the owner in fee of
forty acres of land described in plaintiffs' petition
that he bought the same in good faith and paid a valuable...
