290 S.W. 80 | Mo. Ct. App. | 1927
The essential facts are either conceded or undisputed so the questions to be decided are purely legal. The facts are substantially as follows: Defendant, Rex Harris, was the owner of the Northeast Quarter of the Southwest Quarter and the Northeast Quarter of the Northwest Quarter of section 20, township 25, range 20, in Christian county, Missouri. He sold to A.R. Pierce the Northeast Quarter of the Northwest Quarter of said section 20 but in writing the deed the Northeast Quarter of the Southwest Quarter of said section was written in the deed by mistake. Pierce and wife then executed a deed of trust to R.M. Mapes, trustee, to secure a note of $100 payable to the Farmers' Bank of Chadwick, Missouri, in which the description of the land followed the description in his deed. This deed of trust also contained covenants of title. Pierce and wife afterward sold the land to plaintiff and executed to him a general warranty deed describing the same land as described in the former deed from defendant to Pierce, being also the same land described in the deed of trust executed by Pierce and wife to secure the note to the bank. This deed from Pierce to plaintiff recited that the covenants were made subject to the deed of trust above described and plaintiff assumed and agreed to pay the debt of $100 secured by said deed of trust. Plaintiff did not pay this debt to the bank, when it came due and the deed of trust was foreclosed and defendant became the purchaser at the trustee's sale. Plaintiff afterward discovered that at the time defendant made his deed to Mr. Pierce he did not own the Northeast Quarter of the Southwest Quarter of section 20 aforesaid. Plaintiff then brought this suit on the covenants of warranty in the deed of defendants to Pierce.
The plaintiff is not a direct grantee from defendants but under the rule in this State a subsequent grantee of the land may sue the original covenantor upon any covenant that runs with the land and that fact is conceded in this case. The defendant concedes that he did not own the land described in his deed to Pierce at the time he made the deed to him. Pierce having subsequently conveyed to plaintiff there would be no doubt of plaintiff's right to recover had there been no mortgage or deed of trust executed by Pierce and a foreclosure and sale thereunder. The question we are called upon to decide is whether the foreclosure and sale under a deed of trust *1293 executed upon the land subsequent to defendant's deed to Pierce had deprived plaintiff of his right of action.
We may note here that the insertion in the deed by mistake of a wrong description of the land sold by defendants to Pierce did not render the deed void. It was the intention of all the parties to convey another tract which defendant at that time owned. The deed, therefore, conveyed to Pierce an equitable interest in the land sold and intended to be conveyed. On a proper showing Pierce could have had his deed reformed so it would have correctly described the land he bought. Pierce executed a deed of trust on the land containing the same error in description. When plaintiff bought the land he assumed and agreed to pay the debt secured by that deed of trust. By accepting a deed in which his assumption of that debt was specifically provided, he, as between himself and Pierce, became the principal for the payment of that debt and it was his duty to see that the debt was paid. As to that debt and the right of the holder of the note to foreclose the deed of trust he stood in the shoes of Pierce and his neglect to pay the debt secured by the deed of trust and its foreclosure had the same effect upon him as it would have had upon Pierce if he had not conveyed the land. When the deed of trust was foreclosed and the land conveyed to the purchaser under it the plaintiff is placed in the same position that he would be if he had himself conveyed the land, for under circumstances of that kind the deed of trust, its foreclosure and sale to the purchaser became the conduit through which both Pierce and plaintiff conveyed the property to the purchaser at the trustee's sale. [Gunther v. Williams,
It is clear that had there been no mistake in the description of the land the deed of trust would have been foreclosed the same as it was foreclosed and in that case there could be no doubt that all of plaintiff's rights would have been lost. We cannot see how a mistake in the description of the land in the deed and deed of trust would make any difference.
Plaintiff claims that some time after receiving a deed from Pierce he paid to Pierce the amount due on the note secured by the deed of trust. This note was payable to Farmers' Bank of Chadwick and the clause in the deed from Pierce to plaintiff by which plaintiff assumed and agreed to pay that note recited that it was payable to the bank, so he had notice of that fact and since there was no showing that Pierce had authority to collect the note, plaintiff's payment to Pierce was unauthorized and did not discharge the debt. There was no evidence that the holder of the note or the purchaser at the foreclosure sale had any knowledge that payment of the debt had been made to Pierce. Plaintiff testified that when he paid Pierce he, Pierce, delivered to plaintiff a note and deed of trust which compared with the *1294 deed, and the deed of trust was marked "released and cancelled" and the note was marked "cancelled" by stamp. Who placed this marking on the deed of trust and note and by what authority it was done was not shown. There was nothing to indicate that either the bank to whom the note secured by the deed of trust was payable or the purchaser at the trustee's sale had any knowledge of the payment to Pierce and his delivery of a note and deed of trust to plaintiff. We do not think plaintiff can in any way profit by the fact that he made payment to Pierce and received from him a note and deed of trust that was marked "cancelled."
We are of the opinion that on the conceded facts in this case the plaintiff cannot recover. The judgment will, therefore, be reversed. Bradley and Bailey, JJ., concur.
