Woodard v. Householder

• Decision Date: 15 November 1926
• Docket Number: 25049
• Citation: 289 S.W. 571,315 Mo. 1155
• Parties: A. F. Woodard, Appellant, v. Harry Householder and Mabel E. Householder, A. A. Carpenter, Edith M. Yount, Helen Yount Stuart and Homer Stuart, Verdie Yount Lute and George Lute, Imogene Yount, and A. B. Madgerfrau, Administrator of Estate of I. I. Yount
• Court: Missouri Supreme Court

289 S.W. 571

315 Mo. 1155

A. F. Woodard, Appellant, v. Harry Householder and Mabel E. Householder, A. A. Carpenter, Edith M. Yount, Helen Yount Stuart and Homer Stuart, Verdie Yount Lute and George Lute, Imogene Yount, and A. B. Madgerfrau, Administrator of Estate of I. I. Yount

No. 25049

Supreme Court of Missouri

November 15, 1926

Motion for Rehearing Overruled December 31, 1926.

Appeal from Audrain Circuit Court; Hon. Ernest S. Gantt Judge.

Affirmed.

Clarence A. Barnes for appellant.

(1) When a court of equity once acquires jurisdiction of a cause it will retain it to do full and complete justice, and will give the specific relief asked, if proper so to do, or the relief proper under a prayer for general relief. Marston v. Catterlin, 290 Mo. 185. (2) An assignment of a note secured by a deed of trust carries the security with it and the assignee stands in the place of the payee. Boatmen's Savings Bank v. Gewe, 84 Mo. 477; Tee v. Clark, 89 Mo. 553. An assignment of a note secured by collateral, upon the assignment of the debt without the pledge, the assignee will hold the collateral as trustee for his assignee. 31 Cyc. 849. (3) The rule as to marshalling assets or securities, applies between plaintiff and defendants. There are two funds out of which the bank note for $ 7,000 could be satisfied, and only one fund out of which plaintiff's $ 15,000 in notes could be satisfied. 1 Jones on Mortgages (6 Ed.) p. 926, sec. 875; Sherron v Acton, 18 A. 978; Herbert v. Mechanics B. & L. Assn., 17 N.J.Eq. 497; Speer v. Home Bank, 200 Mo.App. 269; Paddock Hawly Iron Co. v. McDonald, 61 Mo.App. 559; Dunlap v. Dunseth, 81 Mo.App. 17; Shackleford's Admrs. v. Clark, 78 Mo. 491; Stern berg v. Valentine, 6 Mo.App. 176; 4 Pomeroy's Equity Jur. (3 Ed.) p. 2786, sec. 1414; 1 Pomeroy's Equity Jur. (3 Ed.) p. 655, sec. 396, Boone v. Clark, 129 Ill. 466; Breed v. Nat. Bank of Auburn, 68 N.Y.S. 68.

Rodgers & Buffington for respondent Householder.

Appellant never had any cause of action against Respondent Householder. Householder's deed of trust went on record March 2, 1920. The deed of trust first received by appellant went on record October 20, 1921. The deed of trust last received by appellant went on record June 2, 1921. Appellant pleads in his petition that his deeds of trust are both junior and subject to Householder's $ 40,000 encumbrance. The deeds when put in evidence by appellant show that they are subject to respondent's deed. The issue in this case, and the only issue, between appellant and Householder being the question of priority of liens on the land in question, in view of appellant's admissions in his petition, the admissions shown in his deeds of trust, his admission shown in the oral evidence, and the cold record as to the actual time of the filing of appellant's and respondent's respective deeds, all to the fact that appellant's lien is secondary and subject to respondent's lien, conclusively demonstrate that in accordance with horn-book law relative to conceded facts and documentary proof the court could have done naught else than was done in finding the issue of priority of liens in favor of Householder and against the appellant.

Fry & Fry for respondent A. A. Carpenter.

(1) Neither of Woodard's deeds of trust were recorded when the Bank of Wayland, Iowa, took its mortgage on April 18, 1921. There was no notice to said bank of any such liens, and its officers had no knowledge whatever of such liens. Therefore, neither one of Woodard's deeds of trust could be superior to that of the bank. (2) Householder was the owner of the title to the land and he only could and did convey it and he alone was entitled to the purchase money. A vendor's lien is established and enforced against the land solely for the purchase money, and no one can enforce it except the vendor or his assignee. Pearl v. Harvey, 170 Mo. 167; Adams v. Cowherd, 30 Mo. 458; Briscoe v. Calahan, 77 Mo. 134; Sloan v. Campbell, 71 Mo. 387; Rogers v. Tucker, 94 Mo. 346; Winn v. Lippincott Ins. Co., 125 Mo. 528, 543. (3) At the time of instituting this suit, the decree of the foreclosure had already been entered by which Woodard was cut out, and Woodard had knowledge of said decree. Woodard comes too late after Carpenter's mortgage has been adjudged and the land conveyed to Carpenter. If plaintiff had any equitable rights he has "slept on his rights" and it is now too late. He has a legal remedy against Mrs. Yount for his debt, and he is not entitled to any equitable relief prayed for in his petition. (4) Where there is a surety for a debt which is also secured by mortgage, the creditor has an election whether he shall proceed upon the mortgage or against the surety. 21 R. C. L. 1096; Flournoy v. Sprague, 214 S.W. 183; State ex rel. v. Cryts, 87 Mo.App. 440; Cullum v. Emanuel, 34 Am. Dec. 757; Allen v. Woodard, 28 Am. Rep. 250; Pritchard v. Fruit, 208 Ill.App. 77; Rutz v. Oltman, 168 Ill.App. 437. A surety can make the creditor proceed against the principal's security first, and this can be done where the surety signs the note as a joint maker. Wilcox v. Todd, 64 Mo. 388; Wright v. Austin, 56 Barber (N. Y.) 13; Sheppard v. Conley, 9 N.Y.S. 777; In re Babcock, 3 Story, 393; Harris v. Newell, 42 Wis. 687; Speer v. Home Bank, 206 S.W. 407; Trentman v. Eldridge, 98 Ind. 525; Garrett v. Burlington Plow Co., 70 Iowa 697; Thompson v. Spittle, 102 Mass. 207; Mason v. Hull, 55 Ohio St. 256; Stewart v. Stewart, 207 Pa. 59. (5) Carpenter purchased the land under a decree of foreclosure of the mortgage of Yount to the Farmers State Bank of Wayland. While there is a right of redemption of sale of land in this State under a deed of trust, under R. S. 1919, sec. 2222, there is no right of redemption from sale under a decree of foreclosure, as in this case. Ramley v. Peoples Ry. Co., 144 Mo. 190.

Ragland, P. J. All concur, except Graves, J., absent.

OPINION

RAGLAND

This is a suit in equity. The nature of the relief sought can best be described after the facts upon which the right to the relief is predicated have been outlined.

On the 8th day of July, 1919, defendants Harry Householder and Mabel E. Householder, husband and wife, were the owners in fee simple of 640 acres of land: the north half of Section 26 and the north half of Section 27, all in Township 52 of Range 10 west, in Audrain County, Missouri. On that date Harry Householder entered into a written contract with one Duncan whereby he agreed to sell and convey the land to Duncan for a consideration of $ 64,000, to be paid in the following manner: $ 2,000 in cash at the time of signing the contract; $ 17,000 on or before March 1, 1920; a note for $ 5,000 due March 1, 1920, bearing six per cent per annum interest after due; and a note for $ 40,000 to be dated March 1, 1920, due March 1, 1925, bearing interest at the rate of five per cent per annum from date, and to be secured by a deed of trust on the land. On July 12, 1919, Duncan agreed in writing to sell and convey the land to plaintiff Woodard for the sum of $ 70,400; on August 4, 1919, Woodard entered into a contract with Felgar, Siver, Lauger and Walker, wherein he agreed to sell and convey the land to them for $ 80,000; and on the second day of September, 1919, Felgar, Siver, Lauger and Walker, under the cloak of Woodard's name, contracted in writing to sell the land to I. I. Yount for the sum of $ 86,400. The contract on its face appeared to be between Woodard and Yount. All of the contracts above referred to were negotiated by one Jennings, a real estate agent at Centralia, Missouri; all of them were drawn by him, the same form of printed blank being used in each instance; each of them provided that it should be consummated on the 1st day of March, 1920, at Jennings's office; and each contained a provision that $ 40,000 of the purchase price might be carried on the land for a period of five years. On the first day of March, 1920, all the parties above named appeared at Jennings's office for the purpose of closing their several deals. The evidence does not disclose the details of the settlement or settlements had. It appears, however, that by mutual agreement Householder and his wife conveyed by warranty deed directly to Yount, the last purchaser; that Yount executed a note to Householder for $ 40,000 due five years thereafter and bearing five per cent annual interest from date, together with a deed of trust on the land to secure it; and that Yount also executed three notes, each for $ 5,000, to Woodard and Felgar, and gave a deed of trust on the land to secure them. This latter deed of trust recited that it was subject to the one given Householder. Yount's wife joined him in executing both deeds of trust, and she signed one of the $ 5,000 notes. The warranty deed from Householder and wife to Yount was dated March 1, 1920, and was acknowledged on that day. Both deeds of trust were dated February 26, 1920, and were acknowledged as of that date. All three of the deeds, however, were delivered on March 1, 1920, and constituted parts of one transaction, as just stated.

The warranty deed from the Householders to Yount was filed for record February 8, 1921; the deed of trust from Yount to Householder, March 2, 1920; and the deed of trust from Yount to Woodard and Felgar, October 20, 1921. Woodard acquired Felgar's interest in the three $ 5,000 notes shortly after they were executed. On March 1, 1921, Yount and his wife signed and delivered to Woodard a single note for $ 15,000, together with a deed of trust on the same land to secure it, in renewal of the three $ 5,000 notes. It was the understanding, however, between Yount and Woodard that the former would pay in cash the interest which had accrued on the $ 5,000 notes up to the date of the renewal note, and the latter...