Wooldridge v. Scott

• Decision Date: 30 April 1879
• Citation: 69 Mo. 669
• Parties: WOOLDRIDGE, Appellant, v. SCOTT, Administrator.
• Court: Missouri Supreme Court

69 Mo. 669

WOOLDRIDGE, Appellant,

v.SCOTT, Administrator.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Saline Circuit Court.--HON. WM. T. WOOD, Judge.

Waters & Winslow with Shackelford and Vest for appellant.

Having paid the purchase money at the request of the vendee, and with the distinct and specific understanding and agreement that the lien should continue, the plaintiff is entitled to the benefit of the vendor's lien. Bartlett v. Glascock, 4 Mo. 62; Truesdell v. Callaway, 6 Mo. 605. The reason is, that it would be a fraud upon the party making the advance under these circumstances, to permit the vendee to take the title and retain the land, for which the money of another had paid, without repaying the purchase money. It certainly would be a gross fraud upon the plaintiff to permit the other creditors of the estate of F. M. Wooldridge, which is admitted to be insolvent, to take the real estate for which plaintiff's money has in part paid, without returning the purchase money; and while it is true that the provisions of our statute have entirely superseded the equitable methods of marshaling assets, the principles underlying those methods may be invoked to illustrate or explain analogous remedies given or permitted under the statute. Titterington v. Hooker, 58 Mo. 593; Lewis v. Chapman, 59 Mo. 371; Linville v. Savage, 58 Mo. 248; 2 Story Eq. Jur., (6 Ed.) § 1227; Mitchell v. Butt, 45 Ga. 162, Latham v. Staples, 46 Ala. 462.

2. The general rule is that a vendor's lien can only be enforced by the vendor; but undoubtedly it is subject to several well defined exceptions. It passes to the personal representatives of the vendor, and may be enforced by creditors and legatees in marshaling the assets of the vendee. 2 Story Eq. Jur., (6 Ed.) §§ 389, 1227. It may be enforced in favor of a judgment creditor. Edwards v. Edwards, 24 Ohio St. 402. And when no deed is made it passes by an assignment of the note given for the purchase money. Adams v. Cowherd, 30 Mo. 458. A security of the vendor, who has paid the purchase money, takes the lien by substitution. Smith v. Schneider, 23 Mo. 447. When a subsequent incumbrancer, or purchaser, is forced to pay the lien, he takes it by substitution as against other incumbrances. 2 Story Eq. Jur., (6 Ed.) § 1227. The plaintiff being an administrator, had no right to discharge the lien until the money was paid to the estate. Tiffany & Bullard on Trusts, 150; Lessing v. Vertrees, 32 Mo. 431; Smarr v. McMaster, 35 Mo. 349; Stewart v. Caldwell, 54 Mo. 536; Stewart v. Wood, 63 Mo. 252; Bompart v. Lucas, 21 Mo. 598. As against any but bona fide purchasers those interested in the estate could follow the trust property. F. M. Wooldridge having had notice of the facts, and defendant standing in privity with him, it could be followed into their hands. The lien was not lost by taking the original note for the purchase money, the note for the balance unpaid at the settlement, or the presentation and allowance of this last note against the estate; and the same results would have followed taking a deed of trust on the land. Delass v. Poston, 19 Mo. 425; Johnson v. Scott, 34 Mo. 129; Adams v. Buchanan, 49 Mo. 64; Major v. Bukley, 51 Mo. 127; Ficklin v. Stephenson, 33 Mo. 341; Morris v. Pate, 31 Mo. 315; Linville v. Savage, 58 Mo. 248. Besides, it was expressly agreed that the lien should continue, notwithstanding the acknowledgment of the receipt of the purchase money and the execution of the deed; and in this State the lien continues under such circumstances. Crump v. McMurtry, 8 Mo. 408. Plaintiff having assumed this liability at the request of F. M. Wooldridge, which was impliedly accepted by the parties in interest as a part of his original tiability for the assets of the estate coming to his hands, the relation of suretyship virtually grew out of the transaction, and the lien should have been enforced in his favor under the rule laid down in Smith v. Schneider, 23 Mo. 447.

Letcher, Landon & Scott for respondents.

SHERWOOD, C. J.

In August, 1860, Francis M. Wooldridge bought of Jane Chambers a tract of land of fifty acres, executed his note to her for the purchase price, $1,000, receiving in return a title-bond. Some years afterwards, Jane Chambers died, and Wm. D. Wooldridge administered upon her estate. The note and interest then amounted to $1,444.84. Francis M. Wooldridge had a claim allowed against the estate of Jane Chambers for $746.56. He then, being desirous of securing the legal title of the land bought, entered into an arrangement with Wm. D. Wooldridge, whereby the latter surrendered to Francis M. Wooldridge his note for the land, receiving in return the receipted account of the latter, allowed as before stated, against the estate of Jane Chambers, and also the note of Francis M. Wooldridge for $698.28, payable to Wm. D. Wooldridge; the amount of the note being the difference between the note executed to James Chambers and the claim allowed against her estate. These transactions occurred so as to enable the vendee of the land to obtain a title thereto, through proceedings in the probate court, which were had, and the deed made under the statutory provisions.

Mr. Boyd, who drew the papers and conducted the business before mentioned, between the administrator...