Zoll v. Carnahan

• Decision Date: 31 October 1884
• Citation: 83 Mo. 35
• Parties: ZOLL, Appellant v. CARNAHAN et al.
• Court: Missouri Supreme Court

83 Mo. 35

ZOLL, Appellant

v.CARNAHAN et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

Samuel P. Sparks for appellant.

(1) That part of the answer setting up title acquired from Embree's heirs was inconsistent with the admission that Carnahan purchased of plaintiff, as administrator of Embree, so the motion to strike out should have prevailed. R. S., § 3523; Atterbury v. Powell, 29 Mo. 429: Nelson v. Brodhack, 44 Mo. 596. (2) The matter sought to be stricken out being inconsistent, the deed from Embree's heirs to Carnahan in support of this defense was inadmissible, because its effect was to contradict the fact admitted by the same answer, that Carnahan had purchased of plaintiff. State v. Roberts, 62 Mo. 388. (3) The defendant, Carnahan, never having received any conveyance from his vendor, could not set up a title adverse to him, and his grantee is in no better situation. Macklot v. Dubrenil, 9 Mo. 480; Budd v. Collins, 69 Mo. 71. (4) All that Carnahan acquired by his purchase and part payment of the purchase money was an incomplete equity and all the subsequent grantees of his claim took subject to the equities between him and his vendor. Jasper Co. v. Travis, 76 Mo. 13; Skinner v. Parnell, 52 Mo. 96; Stewart v. Wood, 63 Mo. 252. Under the pleadings the defendant, Baile, could not avail herself of the defense of innocent purchaser without notice, even though it had not been charged in the petition that she was a purchaser with notice. A general denial of notice is insufficient; she should have denied the fact of notice and of every circumstance from which it could have been inferred. Murray v. Ballow, 1 John. Ch. loc. cit. 575; Story Eq. Pl., §§ 805, 806 (4th Ed.); Gellatain v. Erioin, Hopk. 48; Kerr on Frd. and Mist. 302-3 (Eng. Ed.); Haughtwaut v. Murphy, 22 N. J. Eq.; Rice v. Bunce, 49 Mo.

The defendant, Baile, before she had completed payment of the purchase money, had notice from Zoll that the deed had never been delivered to Carnahan for the reason that the purchase money had not all been paid. Jewell v. Palmor, 7 John. Ch. 65; 2 Story Eq. Jur. § 1502 (Ed. 1870); Story Eq. Pl., supra. To constitute one an innocent purchaser, such an one must have acquired the legal title; the purchaser of any equity is bound to take notice of and is bound by a prior equity. Between equities the maxim qui prior est tempore potior est jure applies. 1 Jones Mtgs. § 200; 6 Cent. L. J. pp. 459-460.

(5) This action was not barred against Carnahan by reason of his having become a non-resident shortly after his purchase--§ 3236, R. S.--and for the further reason that this action was commenced within ten years from Carnahan's letter, in which he acknowledged the debt in writing before the statute of ten years had run.

(6) The evidence fails to sustain the plea of adverse occupancy. One asserting title by adverse possession even where no privity exists, is held to the strictest proof. Lynde v. Williams, 68 Mo. loc. cit. 369, 370. But where it is otherwise, as between vendor and vendee, a still higher degree of proof is required. Hamilton v. Boggess,63 Mo., loc. cit. 249-250; Budd v. Collins, 69 Mo. 129; Fulkerson v. Brownlee, 69 Mo. 371. This is not an action for the possession of real estate, but one for the enforcement of a lien and a statute of limitations in regard to adverse possession is not the appropriate plea.

O. L. Houts for respondent.

(1) Plaintiff's action is a real one and is barred by the statute. R. S., 1879, p. 543; Rogers v. Brown, 61 Mo. 187. (2) The fact that defendant, Carnahan, was a non-resident will not prevent the statute from running, because respondent, Baile, and her grantors being residents, have a right to invoke the statute, though Carnahan could not. In the second place, the exception relied on by plaintiff, created by § 3236, R. S., 1879, applies to personal actions and not to real actions, and plaintiff's remedy against the land is barred. Rogers v. Brown, supra, Revision 1855. (3) Plaintiff is estopped from asserting his claim. He twice asserted and made it a matter of record in 1867, that the purchase money for this land was paid. He remained silent for thirteen years, thereby directly leading defendant, Baile, and her grantors to put their money on the land. “He who will not speak when he should will not be allowed to speak when he would,” much less having spoken be allowed to declare to the contrary, to the injury of those by his representations and actions induced to act. Pelkington v. Nat. Ins. Co., 55 Mo. 172. (4) Plaintiff never had any lien on the land in question under the evidence. The deposit of title papers by Carnahan with plaintiff created no lien. Vanmeter v. McFadden, 8 B Mon, 437; Curley Heirs v. Eddy, 24 Mo. p. 117-124. The $176.14 sued on, the estate of Tarlton Embree owed plaintiff, not Carnahan. (5) There is no evidence tending to show notice to Baile of plaintiff's claim.

PHILIPS, C.

This is an action to enforce a vendor's lien on lots 1 and 2 of the northeast quarter of section 5, township 45, range 25, situated in Johnson county. The facts in the case are substantially as follows: One Tarlton Embree died intestate, seized of the equitable title to said land in 1862. His heirs acquired the legal title and by deed with covenants of warranty conveyed the land to one Thomas L. Carnahan, dated December 21st, 1866. On the 12th day of January, 1867, said Carnahan conveyed the land by a like deed to Elizabeth Carnahan and Nancy Sharp, through whom the defendant, Sarah L. Baile, by mesne conveyances, claims title. The plaintiff, Zoll, as public administrator, took charge of the estate of said Embree, deceased. In the Spring of 1867, the said administrator obtained from the probate court of said county an order to sell this land to raise money to pay off the debts against the estate, under which the land was subsequently sold at a cash sale and the said Carnahan became the purchaser at the price of $2200. The administrator in due time made his report to the probate court of said sale showing the purchase by said Carnahan and the payment of the purchase money. The court approved the sale and ordered the administrator to make and deliver to Carnahan a deed to said land. The record of the probate court showed that at the time of said approval the administrator acknowledged in due form deed to said Carnahan. The administrator at the following October term, 1867, of said probate court, made his final settlement of said estate, charging himself with said $2200 as having been paid by Carnahan, showing a balance due the administrator of $176.14 against the estate which settlement was by the court approved.

The petition in this case was filed on the 14th day of September, 1880. It sets out the facts of the administration resulting in the sale of said lands to Carnahan and the report thereof to the probate court and its approval of the sale and the order touching the making of the deed, and its acknowledgment as aforesaid; but charges that Carnahan, in fact, did not pay all the purchase money, and that the said sum of $176.14 was the balance of purchase money unpaid by him, and that the plaintiff never delivered the deed to Carnahan because he had not paid the whole of the purchase money. The petition charges that the purchasers under Carnahan, including the defendant, Baile, took with notice of the fact that said purchase money was not paid by Carnahan. It is also alleged that in the fall of 1867, said Carnahan had left the state and taken up his residence in another state. The prayer of the petition is to enforce the lien of plaintiff as a vendor against the land, for the recovery of said balance of purchase money.

The answer admits the proceedings in administration, the sale of the land thereunder to Carnahan, the report of sale and its approval, etc., and the mesne conveyances, but denies generally the other allegations of the petition. It then sets up the facts touching the purchase of said land by Carnahan from the heirs of Embree prior to the proceedings by the administrator for the sale of the land, and that Carnahan took possession under his purchase from the heirs. It, also, pleads the statute of ten years' limitations against the action of plaintiff and adverse possession, etc.

The replication tendered the general issue to the new matter set out in the answer. Outside of such notice as the records impart, it is not apparent that any of the purchasers under whom the defendant, Baile, claims title, or that she had any notice of the fact that any of the purchase money in question was unpaid by Carnahan at the time of their respective purchases. There was some evidence that the plaintiff stated to one Ridings--one of the intermediate purchasers of the land--that the purchase money was not all paid, but this seems to have been subsequent to the date of Ridings' purchase. The defendant, Baile, testified denying any notice whatever of the existence of the debt or lien, and there was no countervailing proof. The plaintiff claims, however, that she had notice before she paid all the purchase money, but she testified that her son had paid the purchase money for her before she knew of the fact, etc. The court found the issues for the defendants and dismissed the bill. From this judgment the plaintiff prosecutes this appeal.

I. It is important in the consideration of this case to bear in mind that Carnahan, under whom the defendant, Baile, claims title, received a deed to the disputed premises from the heirs of Embree with covenants of title under the statute, prior to the sale under the administration proceedings. By this deed Carnahan, in addition to the fee of the heirs, acquired the dower interest of Embree's widow. Also, that Carnahan conveyed, with a like covenant of title, to other parties, through whom the defendant, Baile, claims prior to such proceeding by the administrator. It may be conceded for the...