30 Mo. 448 | Mo. | 1860
delivered the opinion of the court.
This case stands, upon a demurrer, and we see no good reason why the defendants should not have answered the plaintiff’s petition. If John Games has not paid Gideon Games the purchase money he owed him for the land, neither he, nor his assignee and vendor, the plaintiff, will be entitled to a decree against him until that is done, as he can not be entitled to more than what remains of the value of the land after Gideon Games is satisfied his purchase money.
We do not see the force of the objection, that the petition does not aver that Gideon Games has not been paid his money. The plaintiff Bledsoe may not know how the facts are between John and Gideon Games. If Bledsoe had declared his ignorance of the fact of the payment of the purchase money to Gideon Games, would he have been deprived of all relief? Bledsoe is entitled to know whether the original purchase money has been paid to Gideon Games, and if it has, then Gideon was guilty of a fraud in selling to Duvall; and if the purchase money has not been paid by Duvall, it may be stopped in his hands for that purpose.
The lien for the unpaid purchase money of real estate is recognized to the same extent, in case of a sale of an equitable title, as of a legal one. (1 White’s Eq. Cas. 271.) The case of Bailey v. Greenleaf, 7 Wheat. 41, cited by defendant, is not analogous to the present. - In that case the court says there was an actual conveyance of the legal estate. (Id. 57.)
Judgment reversed and remanded.
