Warner v. Veitch

• Decision Date: 19 June 1876
• Citation: 2 Mo.App. 459
• Parties: MRS. JOSIAH L. WARNER, Respondent, v. JAMES M. VEITCH, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 459

MRS. JOSIAH L. WARNER, Respondent,

v.JAMES M. VEITCH, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 19, 1876.

1. Where one having a judgment which is a lien on real estate suffers the property to be sold under a deed of trust which was a prior lien, without

getting out execution on his judgment, and the trustee under the deed of trust pays the surplus in his hands, after satisfying the notes, to the grantor in the deed of trust, the judgment creditor cannot recover in an action against the trustee, though he had notice of the judgment.

2. Where the land is sold under a prior incumbrance, the lien is gone.

APPEAL from St. Louis Circuit Court.

Reversed, and final judgment.

Dryden & Dryden, for appellant cited: Pahlman v. Shumway, 24 Ill. 127; Purple Ill. Stat. part 1, p. 642, sec. 1; Wag. Stat. 790, secs. 1, 2, 3; Douglass v. Houston, 6 Ohio, 162; Miami Bank v. Turpin, 3 Ohio, 517; Conrad v. Atlantic Ins. Co., 1 Pet. 443; Massingill v. Downs, 7 How. 767; McMahon v. Allen, 34 Barb. 56; Morrison v. Deaderich, 10 Humph. 342; Dunberry v. Talmage, 32 N. Y. 459-461; Story's Eq. Jur., sec. 1, p. 266; Brangling v. Barington, 6 B. & C. 475.

Chandler, Young & Burnett, for respondent, cited: Grant v. Whitewell, 9 Iowa, 157; 3 Bouv. Inst. 61, 66; Succession of Walsh, 9 La. An. 543; Anderson v. The State, 23 Miss. 475; Rankin v. Scott, 12 Wheat. 179.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding in equity to recover from defendant certain moneys, surplus remaining in his hands after foreclosure of a deed of trust of which he was trustee.

It appears from the pleadings and evidence that, on January 23, 1871, one Everett conveyed to Veitch a certain lot in St. Joseph, Missouri, on which Everett was then residing with his family. This conveyance was in trust to secure to the Covenant Life Insurance Company the payment of a note of $3,000 therein described, and contained the usual provisions for sale on default of payment. The deed contains the customary clause that the surplus, in case of sale, should be paid to the grantor, or his legal representatives. On May 31, 1871, Philemon Bliss recovered judgment in the Circuit Court of Buchanan county, against Everett, for $899 and costs. This judgment was a lien upon the real estate mentioned in the deed of trust, and next in priority. This judgment was duly assigned to plaintiff. On June 1, 1872, Everett executed to one Saxton a mortgage upon the same lot of ground, to secure to him an indebtedness of $1,711. Both of these instruments were duly recorded as soon as delivered. On September 10, 1873, whilst the judgment and mortgage were unpaid, default having been made in the payment of the note secured by deed of trust, the same was foreclosed according to its terms, and, after paying the debt described in the deed, there remained in the hands of the trustee $1,710.52. At the time of the sale the defendant, the trustee, had notice of the judgment owned by Mrs. Warner, and after the sale, and whilst the surplus was still in defendant's hands, the owner of the judgment demanded of defendant to apply so much of said surplus as was necessary to the payment of her judgment. This, defendant refused to do, and, upon the order in writing of Everett, the grantor, paid said surplus to Saxton, on account of his mortgage. An execution was issued on the judgment just prior to the trust sale, and was, at the date of the sale, in the hands of the sheriff of Buchanan county. Soon after the sale, Everett surrendered possession to the purchaser. Everett was then, and is now, insolvent. Defendant avers that Everett had a valid homestead in the property conveyed by deed of trust, subject to the lien of that deed, at the time of the sale. This is denied by plaintiff.

Plaintiff prays for a decree that defendant pay her, out of the said proceeds of sale and surplus, the amount of her judgment and interest.

The court, at the conclusion of plaintiff's case, refused an instruction that she was not entitled to recover, made a special finding of facts, and gave judgment for plaintiff.

Motions for a rehearing and a new trial, filed by defendant, having been overruled, the cause is brought here by appeal.

Judgments in this State are made by statute liens upon the real estate of the defendant. The lien of the judgment does not extend to personalty. A person to whom land has been conveyed subject to a deed of trust, or the cestui que trust where the conveyance is a second deed of trust, becomes thereby the legal representative of the grantor, and, as such, is entitled to receive the surplus funds remaining after the foreclosure. Reid v. Mullins, 43 Mo. 306. We are, therefore, of opinion that the money...