60 Mo. App. 300 | Mo. Ct. App. | 1895
Abbe, tbe plaintiff, had $541.45, tbe proceeds arising from tbe sale of certain mill property by him under a second deed of trust, remaining in bis bands as trustee after payment of tbe trust debt. Tbis sum was claimed by both tbe appellant and respondent.
Tbe plaintiff filed bis petition in tbe circuit court stating tbe foregoing facts in detail and praying tbe court to require tbe appellant and respondent to appear and interplead in tbis cause, setting up their respective claims to tbe fund so in tbe bands of tbe plaintiff, trustee.
Tbe Bank of Commerce becoming defunct, tbe appellant, Sanford, being its assignee, was substituted as a party in its stead, and by interplea claimed tbe fund under a deed of trust dated July 7, 1892, and duly recorded, executed by A. E. Sbriner to secure a promissory note to said bank for $807.
Tbe respondent, Justus, also filed bis interplea, wherein it was stated that May 31, 1892, be was tbe owner of certain real estate, on which was situate a steam flouring mill, etc.; that on said day be executed to Abbe', as trustee, a deed of trust on said mill property to secure tbe payment of a note to Wilcox for $500, subject to a prior deed of trust to secure $1,200; that afterwards on said day be sold and conveyed by deed said mill property to Alonzo E. Sbriner; that as a part of tbe consideration in said deed tbe said Sbriner assumed tbe payment of tbe notes in tbe two deeds of trust mentioned, which amounted in tbe aggregate to about $1,708.50, as in said deed recited, and tbe said Alonzo F. Sbriner executed to tbis respondent bis
The allegations of the interpleas of the appellant and respondent were each put in issue by the replication of the other, so that from thereon the controversy was only between them. Upon a hearing of the pleadings and evidence the court found the issues for the respondent and decreed accordingly, to reverse which this appeal is prosecuted.
It must be conceded that when there are several liens on a piece of real property and it is sold under one of them, the surplus after paying the lien under which it was sold, belongs, in equity, to the next subsequent liens in the order of their priority. Strawbridge v. Clark, 52 Mo. 21; Foster v. Potter, 37 Mo. 534; Reid v. Mullins, 43 Mo. 306; Helweg v. Heitcamp, 20 Mo. 569.
There is evidence contained in the record, which tends most strongly to prove that the appellant exchanged his mill in Missouri for that of Shriner in Kansas, and that Shriner executed and delivered the $500 deed of trust in question to Snodgrass in escrow. At the time of this transaction, May 31, 1892, Shriner entered into a written agreement with respondent to the effect “that as a condition of the mill deal with James A. Justus that if the Cherryvale mills (Kansas) are not standing, I will transfer the property, the Boliver Roller Mills, back to James Justus, he to return the $500 mortgage. I guarantee the mill to be •standing until word can be had from them, or until
There is further evidence tending to show that it was subsequently ascertained that the Cherry vale mill was standing and thereupon on June 11, 1892, Snodgrass delivered the mortgage to respondent which was filed for record August 31, 1892. While there is some conflict in the evidence it seems to us that it was ample to justify the court in finding as it did that there was a delivery and acceptance of the mortgage and that in consequence thereof it became operative.
Appellant further contends that the deed of trust under which he claims the fund was filed for record on July 12, 1892, and prior to the filing of the deed of trust of the respondent and that its deed of trust was taken upon a good and sufficient consideration in good faith and without notice of the respondent’s mortgage lien. It appears from the evidence that the appellant’s deed of trust has for its support a good and sufficient consideration. Whether the appellant had actual notice of the respondent’s deed of trust at the time of the making of its deed of trust is the vital question in the case.
Under our statute “no such instrument in writing shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the recorder for record.” R. S., sec. 2420. What, then, is actual notice within the meaning of this statute? The supreme court, in Drey v. Doyle, 99 Mo. 459, quoted with approval from Vaughn v. Tracy, 22 Mo. 420, to the effect that “the former (actual notice) was actual knowledge or information; and the latter (implied notice) facts and circumstances not amounting to knowledge or information, from which the law conclusively presumes notice which it would not allow to be controverted by contrary evidence. Actual notice, like any other fact, might be proved by
In Maupin v. Emmons, 47 Mo. 304, it was said that the actual notice required by the statute “does not mean there must necessarily be direct and positive evidence that the subsequent purchaser actually knew of the existence of this deed. Any proper evidence tending to show it — facts and circumstances coming to his knowledge that would put a man of ordinary circumspection upon inquiry — should go to the jury as evidence of such notice.” And to the same effect is Shumate v. Reavis, 49 Mo. 333; Whitman v. Taylor, 60 Mo. 127.
So it has been declared that notice may be either actual or constructive. It is actual when the purchaser either knows of the existence of the adverse claim or title, or is conscious of having the means of knowledge, although he may not use them. Constructive notice is a legal presumption, and will be conclusive unless rebutted, and in many cases it can not be gainsaid, or denied, even by evidence of the absence of knowledge, or notice. Rhodes v. Outcalt, 48 Mo. 367; Speck v. Riggin, 40 Mo. 405. Along this line of adjudication in this state, the following are some of the additional eases that may be cited: Miller v. Blume, 80 Mo. 183; Bronson v. Wanzer, 86 Mo. 408; Haegerman v. Sutton, 91 Mo. 533; Wolfe v. Dyer, 95 Mo. 545; Drey v. Doyle, 99 Mo. 469; Johnston v. Shortridge, 93 Mo. 232; Freeman v. Moffitt, 119 Mo. 302; Conn. Mut. Life Insurance Co. v. Smith, 117 Mo. 292; The State Bank of
' It is plain to be seen that the notice that will postpone a recorded instrument affecting real estate to a prior unrecorded one, must be actual notice. Such notice may be shown by direct evidence, or it may be inferred from facts and circumstances. In Major v. Bukley, 51 Mo. 227, it was said that notice in this connection does not mean positive information, brought directly home to the party sought to be charged therewith and affected thereby, but any fact that would put an ordinarily prudent man on inquiry is notice. It will be remembered that respondent and A. P. Shriner exchanged mill properties; that part of the consideration for this exchange was the assumption by Shriner of the payment of certain prior incumbrances on the mill respondent conveyed to Shriner, amounting to $1,700, which was recited in that deed. As a further consideration for said exchange, Shriner agreed to pay respondent $500, for which he executed his promissory note, and the deed of trust already referred to, to secure the same. After the execution of this deed of trust and on the same day, the said A. P. Shriner, by deed duly recorded, conveyed tlie said mill property acquired from respondent to Lafayette Shriner, and in said deed it is recited that, “This deed is made subject to incumbrances of $2,208.50.”
This recital was, it seems to us, sufficient to put the bank on inquiry as to the nature of the incumbrances therein referred to. If the records, when searched, failed to disclose any incumbrances, or the nature of the same, yet by application to either respondent or Shriner, it could have obtained the information in réspect. to such incumbrances. Shriner, from whom the bank was taking a deed of trust, had
We must infer that these officers, when they took the deed of trust for the benefit of the bank, had knowledge of the recital in the Shriner deed just mentioned. According to the authorities, this was quite enough to put an ordinarily prudent man on the alert. Werner v. Litzsinger, 45 Mo. App. 106; Majors v. Bukley, 51 Mo. 227; Drey v. Doyle, 99 Mo. 469, supra; Bronson v. Wanzer, 86 Mo. 408; Maupin v. Emmons, 47 Mo. 304.
If they failed to make the inquiries which the facts with which they were acquainted suggested, and thus find out the nature of the recited incumbrances, it was their own fault, the consequences of which must rest upon the bank. “He who takes with notice of an equity, takes subject to that equity,” is a maxim of equity.
But, independent of the deed of trust, of the existence of which, we think, the bank had actual notice, or what was its equivalent, the respondent had a vendor’s lien for the amount of the note, and of the existence of this lien, there is some evidence that the bank was apprized at the time it took the deed of trust, under which it make's claim to the fund.
It seems to us that it is immaterial whether the respondent’s claim to the fund is made to rest upon the theory of a prior unrecorded deed of trust, or upon
"We are unable to discover any ground upon which we would be justified in disturbing the decree of the trial court, so it results that the same must be affirmed.