Winn v. The Lippincott Investment Company

• Decision Date: 18 December 1894
• Citation: 28 S.W. 998,125 Mo. 528
• Parties: Winn et al., Appellants, v. The Lippincott Investment Company et al
• Court: Missouri Supreme Court

28 S.W. 998

125 Mo. 528

Winn et al., Appellants, v. The Lippincott Investment Company et al

Supreme Court of Missouri, Second Division

December 18, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

Muckle & Winn for appellants.

(1) The petition as to plaintiff's second cause of action should not have been dismissed. The facts alleged stated the existence of a lien, which plaintiffs can enforce; also a personal liability of the Lippincott Investment Company, upon which plaintiffs are entitled to personal judgments, and which said lien secured. (2) The court should have rendered judgment for plaintiffs on the cause of action set out in second count of the petition. (3) The Lippincott Investment Company, having by the terms of the deed assumed and agreed to pay the notes sued on, was personally liable to the plaintiffs for the amounts due them, respectively. Jones on Mortgages, secs. 748-752; Heim v. Vogel, 69 Mo. 531; Meyer v. Louck, 44 Mo. 328; Rogers v Gosnell, 58 Mo. 589; Ensworth v. King, 50 Mo 477. (4) And personal judgments should be rendered thereon in an equitable suit to foreclose the lien. 1 Jones on Mortgages [2 Ed.], sec. 752; Davenport v. Murray, 68 Mo. 198; Lackland v. Smith, 5 Mo.App. 153. (5) The express covenant inserted in the body of the deed to Lippincott Investment Company, whereby the grantee assumed and agreed to pay the notes amounting to $ 115,000, made the notes by express agreement a charge or lien on the land. Sidwell v. Wheaton, 114 Ill. 267; Moore v. Lackey, 53 Miss. 85; Neas' Appeal, 31 Pa. St. 293; Miller v Thompson, 34 Mich. 10; Meyers v. Bowers, 70 Iowa 95; Freeman v. Auld, 48 N.Y. 50; Cox v Hoxie, 115 Mass. 120. (6) No formula of words is necessary for creating a vendor's lien by express contract. Any words that distinctly convey the idea that the land is conveyed, subject to, or charged, with the payment of the money are sufficient. Jones on Mortgages [2 Ed.]; Moore v. Lackey, supra. (7) The burden of the whole debt assumed to be paid by the grantee became annexed to, and a charge on, the whole tract covered by the deed. Welch v. Beers, 8 Allen (Mass.), 151; Company v. Mowery, 67 Iowa 113; Rugg v. Brainard, 67 Vt. 364; Johnson v. Walter, 60 Iowa 315; Crawford v. Edwards, 33 Mich. 354; Jones on Mortgages [2 Ed.], sec. 744. (8) And this covenant runs with the land, operating as an incumbrance upon it, not only for the vendor, but for his assignee of the purchase money. Wilson v. Campbell, 106 N.Y. 325; Moore v. Lackey, supra; Sidwell v. Wheaton, supra; Neas' Appeal, supra. (9) The lien by contract, or the express vendor's lien, is really a mortgage, and becomes a matter of record when the deed is recorded. It is not waived as an implied vendor's lien is, but is governed by the same rules that govern mortgages. White v. Downs, 40 Texas, 426; Carpenter v. Mitchell, 54 Ill. 126; Moore v. Lackey, supra; Lush v. Hopper, 3 Bush (Ky.), 179; Fogg v. Rogers, 2 Caldw. (Tenn.) 290; Bozeman v. Ivey, 49 Ala. 75; Lewis v. Perry, 8 Bush (Ky.), 615; Hurley v. Holliday, 35 Md. 469; Schwartz v. Stein, 29 Md. 119; Dunlap v. Shanklin, 10 W.Va. 662. (10) Unless merged in the express vendor's lien, an implied vendor's lien would exist until the Lippincott Investment Company has paid the consideration in full. Edmonson v. Phillips, 73 Mo. 61; Pratt v. Clark, 57 Mo. 189; Bennett v. Shipley, 82 Mo. 448; Christie v. McKee, 94 Mo. 241; Hannah v. Davis, 112 Mo. 599. (11) The courts will not presume that the vendor's lien has been surrendered without satisfaction, unless upon clear and convincing proof. The burden rests upon the party alleging a waiver; and, if it remains in doubt, the lien will be presumed to be still in force. Roper v. Day, 48 Ala. 510; Delassus v. Poston, 19 Mo. 425; Coles v. Withers, 33 Gratt. 186; Wilson v. Lyon, 51 Ill. 166; Harris v. Banks, 25 Ark. 510; 2 Story's Eq. Juris., sec. 1224. (12) It is a presumption of law when a promise is made for the benefit of a third person that he accepts it. Rogers v. Gosnell, 58 Mo. 589; Ensworth v. King, 50 Mo. 477; Markell v. Telegraph Co., 19 Mo.App. 80; Grass v. Blodget, 64 Mo. 452. Where an assumption of a debt to a third party is made by a grantee, on an absolute conveyance of land, it is unconditional and irrevocable. The grantor can not retract his conveyance or the grantee his promise so as to deprive the party to whom payment is to be made of the benefit of it. Rogers v. Gosnell, 58 Mo. 589; Garsney v. Rogers, 47 N.Y. 233; Hartley v. Harrison, 48 N.Y. 170; Stimpson v. Brown, 6 Hun, 251; Lawrence v. Fox, 20 N.Y. 268; Bay v. Williams, 112 Ill. 91; Douglass v. Wells, 18 Hun, 88; Willard v. Worsham, 76 Va. 392; Campbell v. Smith, 71 N.Y. 26; Hayden v. Snow, 14 F. 70; Ins. Co. v. Mayer, 8 Mo.App. 18; Jones on Morgages [3 Ed.], sec. 764. (13) "He who takes with notice of an equity, takes subject to that equity." The recital in the deed to Lippincott Investment Company, that it assumed and agreed to pay the one hundred and fifteen notes, amounting to $ 115,000, as well as the record of the deed, was notice to all subsequent purchasers of the existence of the vendor's lien. Ledos v. Kupfrian, 28 N.J.Eq. 164; Major Adent v. Bulkley, 51 Mo. 231; Skinner v. Purcell, 52 Mo. 96; Tidings v. Pitcher, 82 Mo. 379; Bronson v. Wanzer, 86 Mo. 411; Heim v. Vogel, 69 Mo. 529; Orrick v. Durham, 79 Mo. 174; Duncan v. Baker, 72 Mo. 469. (14) Subsequent purchasers of land, subject to a vendor's lien, are not released from its operation by an extension of payment granted to their vendors without their consent. Dalton v. Rainey, 75 Texas, 516; Case v. O'Brien, 33 N.W. 405.

Scammon, Crosby & Steubenrauch and James F. Mister for respondents.

(1) The court below gave a vendor's lien on the lots unsold by reason of the ambiguous and indefinite description of the bonds. This was not essential in order to protect the plaintiffs. The three deeds of trust were one and the same transaction, were so intended by the parties, and really constituted but one deed of trust which had no ambiguity. Crawford v. Elliott, 78 Mo. 497; Dobbins v. Edmonds, 18 Mo.App. 313; McDonald v. Wolf, 40 Mo.App. 302; Sexton v. Anderson, 95 Mo. 373; Jennings v. Todd, 118 Mo. 296; Carr v. Hays, 110 Ind. 408; Hagerty v. White, 69 Wis. 317. (2) The three deeds of trust being considered as one and constituting a valid deed of trust, and, these deeds evidencing the intention that the property should be subdivided and sold and a clear title made, there can be no such right as a vendor's lien, as claimed on the property in question. The taking of security on the land, waived the vendor's lien in Missouri. Emerson v. Whittlesey, 55 Mo. 259; Briscoe v. Callahan, 77 Mo. 134; Sharp v. Collins, 74 Mo. 266; Orrick v. Durham, 79 Mo. 174; Rogers v. Tucker, 94 Mo. 346. (3) There was no vendor's lien in favor of W. V. Lippincott and against the Lippincott Investment Company, who purchased the premises from him, because the company owed him no debt, hence plaintiffs were subrogated to nothing. A vendor's lien only arises on the ground of a debt due the vendor by the vendee. There was none from the company to Lippincott. McKillopp v. McKillopp, 8 Barb. 532; Patterson v. Edwards, 7 Cush. 67; Hare v. Van Dusen, 32 Barb. 92; Lee v. Fabbri, 15 N.Y.S. C. 361. (4) The court did not err in dismissing the second count of plaintiff's petition. The first count sought the enforcement of a vendor's lien against Lippincott and a judgment on the notes or bonds made by him. The second sought the enforcement of a personal judgment against the Lippincott Investment Company, and also an enforcement of a vendor's lien against the Lippincott Investment Company. The two causes of action could not be joined in the same petition. The causes of action in the two counts do not affect all the parties to the action. 1 R. S., sec. 2040; Doan v. Holly, 25 Mo. 357; 1 McQuillin's Pr. & Pl. 198; Southwick Co. v. South, 82 Mo. 282. (5) By the judgment of the court below, the plaintiffs got all the security contemplated by the deed of trust securing their bonds. This being so, it would be infamous for a court of equity to so use the theory of a vendor's lien, itself a creature of good conscience, as to injure the defendants, who are innocent purchasers for value.

H. L. McCune and J. W. S. Peters for respondent, Laura L. Sayles.

(1) The vendor's lien arising from the sale by the Winner Investment Company to William V. Lippincott, Jr., was waived. Whether a vendor's lien is waived or not, depends upon the intention of the parties, to be gathered from a consideration of all the facts and circumstances of the case. Pratt v. Eaton, 65 Mo. 157. (2) And it does not exist where it is evident that the parties never intended to claim it. Moore v. Holcombe, 3 Leigh, 596. (3) First. A vendor's lien can not be enforced against bona fide purchaser without notice, nor any further than the purchaser has notice of it. Zall v. Carnahan, 83 Mo 35; Brown v. Barrett, 75 Mo. 275; Moore v. Holcombe, 3 Leigh, 597; Kilpatrick v. Kilpatrick, 55 Am. Dec. 174. Second. A recital (to charge a purchaser) must be such as explains itself by its own terms, or refers to some deed or circumstance which leads to its explanation. Jennings v. Todd, 118 Mo. 296; Wolfe v. Dyer, 95 Mo. 545. Third. The fact that the purchaser obtained her title by quitclaim is immaterial. Willingham v. Hardin, 75 Mo. 429; Moeller v. Holhaus, 12 Mo.App. 526. (4) When the Lippincott Investment Company assumed the mortgages previously given, it assumed them subject to all their incidents. One of these was the right to have releases given upon certain payments. It assumed the liability of its grantor, the original mortgagor, and only that. When bonds and mortgages are given at the same time between...