Wilcox v. Walker

• Decision Date: 20 February 1888
• Parties: Wilcox, Appellant, v. Walker et al
• Court: Missouri Supreme Court

7 S.W. 115

94 Mo. 88

Wilcox, Appellant, v. Walker et al

Supreme Court of Missouri

February 20, 1888

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

Berry & Thompson for appellant.

(1) The petition states facts sufficient to warrant the relief sought. Appellant may have a legal remedy, but, under the facts admitted by the demurrer, it is not an adequate remedy. The remedy at law must be complete. (2) The Yale mortgage was good. Digman v. McCollum, 47 Mo. 372. But the respondent, Demeter, contends that, inasmuch as he furnished the money to obtain the legal title from the railroad company, he is entitled to subrogation. This is a controversy to be settled in equity. (3) While Demeter is not entitled to subrogation from the fact that he furnished the money to pay the note of Needham for purchase money (Wooldridge v Scott, 69 Mo. 669; Norton v. Highleyman, 88 Mo 621), yet the transaction out of which the mortgage grew may entitle him to be paid out of the land; if so, Wilcox is entitled to have such question judicially determined, and in that event, to an opportunity to redeem and save his investment. It would be inequitable to force him to take chances after sale under the Demeter mortgage. (4) The Demeter mortgage is an instrument which he and others combined with him may use to throw a cloud or suspicion on our title or estate, and subject us to annoyance and hindrance in the sale, improvement, and enjoyment of our estate, and equity will furnish relief to cancel and settle the controversy. Martin v. Graves, 5 Allen, 601; 3 Pomeroy's Eq. Jur., sec. 1399, pp. 437-8-9; 1 Story Eq Jur. [11 Ed.] sec. 700a; McHenry v. Hazard, 45 N.Y. 580. (5) Where the remedy at law is not full and complete equity will entertain jurisdiction and grant the necessary relief, and will enjoin a sale though no title would pass thereby. Vogle v. Montgomery, 54 Mo. 578; Eldridge v. Smith, 34 Vt. 484; Rayland v. Cantrell, 49 Ala. 294; Goodsell v. Blumer, 41 Wis. 436; Crane v. McCoy, 1 Bond, 422; Clark v. Railroad, 44 Ind. 248; State Savings Bank v. Kercheval, 65 Mo. 682, on p. 688; Echelcamp v. Schrader, 45 Mo. 505; Matthews v. Skinker, 62 Mo. 329; Biggerstaff v. Hoyt, 62 Mo. 481; Martin v. Jones, 59 Mo. 181; Mulvey v. Carpenter, 78 Ill. 580, 581; Willard Eq. Jur. [Potter's Ed.] 401.

Dysart & Mitchell for respondents.

(1) This is purely and simply a claim that respondents ought not to be permitted to sell the land under a second deed of trust, because it belongs to a third party, and respondents' debtor and grantor had no right, title, or interest therein, as shown by the record. And the case is not distinguishable from the doctrine announced in the cases of Kuhn v. McNeill, 47 Mo. 389; Drake v. Jones, 27 Mo. 428; and Witthaus v. Bank, 18 Mo.App. 181. Equity will only interfere where land is about to be sold for illegal taxes, or where a homestead is about to be sold, and such other cases where the illegality of the sale is not apparent, and the purchaser might acquire a prima-facie interest, or apparent title. This is not such a case. No extrinsic evidence here would be required to defend plaintiff's title in ejectment. Any purchaser at the sale under respondents' deed of trust would take with notice of plaintiff's title, and would take no greater or different claim than would the respondents. Martin v. Jones, 72 Mo. 23; Purinton v. Davis, 1 Southwestern Reporter, 343. (2) If plaintiff's title be evidenced by such conveyances and records as alleged, "and such recitals be true, he has no occasion for alarm; if the recitals be false, he is entitled to no consideration in equity." Purinton v. Davis, supra; Digman v. McCollum, 47 Mo. 372; Wooldridge v. Scott, 69 Mo. 669. (3) The right to sell under a junior mortgage before a sale under the prior mortgage, has never been questioned. Such sale would be subject to the prior mortgage. The purchaser would only take such right, title, and interest, as the mortgageor had when he gave the second deed of trust, that is to say, an equity of redemption. On what principle is the puisne mortgagee forbidden to sell after a sale by the first, unless it be that such sale is utterly void, and conveys no title? It would seem there is a stronger reason for equity not to interfere where there has been a sale and possession under the first mortgage. He shows that he is in a position to defy the world. I may order a sale of A's land under an execution I have against B, and equity will not interfere. I may accept a deed of trust on A's land from B. A having his chain of title perfect of record, may treat it with indifference; he has no need of an injunction; no cloud is cast upon his title. (4) The very reason plaintiff urges for an injunction, is the very reason he ought not to have it. He shows that plaintiff has a good record title, and what respondents propose to sell is no title at all. And he fails to show where any extrinsic proof would be required to sustain his title, or wherein a purchaser under the second deed of trust could acquire any apparent title. Mathews v. Skinker, 62 Mo. 329; Martin v. Jones, 59 Mo. 181. (5) A court of equity will not try the rights of property between these parties, and decide an action in ejectment in advance.

Brace J. Ray, J., absent.

OPINION

Brace, J.

This cause is before us on appeal from the judgment of the Macon circuit court sustaining a demurrer to the plaintiff's petition, the allegations of which are substantially as follows: "That in January, 1875, one Yale was in possession of the real...