16 Mo. 129 | Mo. | 1852
delivered the opinion of the court.
Robertson was the owner of a lot in St. Louis, which was subject to an incumbrance, to secure to John Ford the payment of notes which Robertson had given to Ford for the purchase money of the lot, Robertson having bought the lot from Ford. The purchase money having become payable and Robertson having failed to pay, Ford caused the property to be advertised for sale under his deed of trust. On the 8th February, 1848, Robertson, being unable to pay the money, made an arrangement with the defendant Brant for the payment of the debt to Ford. As the transaction between Robertson and Brant is in a great measure to bear the character it receives from the papers executed by the parties, it is proper to state their contents fully. Robertson, on the day mentioned, executed a deed, by which he conveyed to Brant the property in question, using the words “grant, bargain, and sell,” with the effect which they have under our statute. At the conclusion of the deed, is this sentence: “It is hereby witnessed, that there is an incumbrance already on said real estate in favor of John Ford, created by deed of trust, dated April 1, 1847, recorded in Book I, No. 4, page 59, and following.” On the same day with this conveyance, and evidently as a part of the arrangement, Brant executed a covenant to Robertson, in these words :
“Whereas, Thomas B. Robertson did, by deed, bearing date April 1,1847, recorded in Book I, No. 4, p. 59, convey to the trustees of John Ford, a lot of ground or parcel of land, in the city of St. Louis, fronting on Fifth street, fifty-seven feet, and running back westwardly one hundred and thirty-feet, on which is situated the “Laclede Saloon,” and whereas, at the saíne time, said Robertson executed to said John Ford his promissory notes for the principal sum of six thousand dollars and interest, which were secured to be paid by said trust deed:*137 and whereas, one of the principal notes, for the sura of two thousand dollars, became due on the 10th day of January, 1848, and was unpaid, by reason whereof the whole of said principal money and interest, up to the time of foreclosing said deed of trust, became due and demandable by said John Ford ; and whereas, by virtue of said deed of trust, said John Ford had caused said lot of ground and premises to be advertised for sale on the 7th day of February, 1848; and whereas, at the request of said Thomas B. Robertson, Joshua B. Brant, of St. Louis, in the State of Missouri, did agree to purchase the said premises from the said Robertson, and to take to himself an assignment of said notes, secured by said deed of trust; and therefore, to give the said Robertson an opportunity of redeeming the same, at any time within three years from the date hereof. Now, therefore, this agreement witnesseth, that the said Joshua B. Brant, in consideration of the premises, doth covenant with said Thomas B. Robertson, as follows : If said Thomas B. Robertson shall, within three years from the date hereof, pay to the said Joshua B. Brant the sum of six thousand two hundred and four 45-100 dollars, then and in that case, said Joshua B. Brant will convey to him, said Robertson, the said lot of ground and parcel of land, by a good and sufficient deed. But if said Thomas B. Robertson should fail to pay said sum of money to said Joshua B. Brant, within said term of three years herefrom, then this covenant is to be absolutely void at law and in equity.
“ It is further agreed, that this covenant is not assignable, either in law or in equity, and that it is only binding on J. B. Brant, in favor of said Robertson and his right heirs, and not enforcible against said Brant, at the suit of any creditors of said Thomas B. Robertson, or any person other than saidRob-ertson, claiming the benefits of the same. In other words, it is a covenant binding on the said Joshua B. Brant, in favor of the said Thomas B. Robertson and his right heirs, only, and not capable of being made the foundation of any action whatever, at law or equity, in favor of any third person.*138 In witness whereof, said parties have hereto set their hands and affixed their seals, the 8th day of February, 1848, at St. Louis, Missouri.
J. B. BRANT, [seal.]
THOS. B. ROBERTSON., [seal.]”
On the same 8th of February, Brant made a lease to Robertson for the premises, for the term of three years, at a rent of $660 per annum. The property was afterwards, during the lease and before Robertson had tendered any money to Brant to redeem the property, sold under judgment, and execution against Robertson, and-Brant became the purchaser. After the purchase at sheriff’s sale, the parties seem to have regarded the first lease as terminated, and on the 22d December, 1848, Brant executed to Robertson a new lease for two years, at a rent of $900, the rent payable monthly. Within the three years from the making of Brant’s covenant, and after the sheriff’s sale, Robertson tendered to Brant the amount of money, upon the payment of which the lot was to be conveyed to Robertson, and Brant refused to accept the payment or make a deed to Robertson.
This suit is brought by Robertson, to enforce.the specific execution of Brant’s covenant. Brant, in his answer, alleges that the transaction between him and Robertson was a loan of money by him, and a mortgage to him by Robertson, to secure the money lent, and that the defeasance was, at the request of Robertson, executed upon a separate paper. He then insists upon his purchase of Robertson’s interest or equity of redemption at sheriff’s sale, as a-bar to the relief sought.
On the part of Robertson, it is insisted that the transaction was a conditional sale, and that the right to redeem, which Robertson had under Brant’s covenant to reconvey, was not vendible under execution, and that consequently Brant, by his purchase at sheriff’s sale, did not change the relations of the ties, or divest Robertson of his right to purchase the property, upon the terms stated in the covenant.
The court has been greatly embarrassed in this case, in
It has also been held, that where the court has determined the issues, by a general finding in favor of either party, and no exception is taken to that mode of determining the facts, the judgment will not be disturbed in this court, either because of the failure to find the facts, or because of any legal opinions expressed by the court in the old mode of raising questions of law by instructions.
The present is a case in which the intention of the parties, and the nature of the transaction between them, must be determined, not merely by the words of the instruments they executed, but by all the circumstances attending the transaction. It is not now a question requiring any elaborate review of authorities, that a deed absolute upon its own face may be shown to be a mortgage, and it is a principle as certainly and clearly established, that where a defeasance, or other instrument of writing, is executed at the same time with the absolute deed, by which the grantor in the deed has rights secured to him, in relation to the property, courts will look into the whole transaction and all the circumstances, to ascertain the intention of the parties. The authorities abundantly prove, that upon the question, whether the instruments thus executed constitute a ■conditional sale or a mortgage, the preceding relations of the parties, the value of the property, and all circumstances attending the agreement, are to be taken into consideration.
In the present case, the agreement between Brant and Robertson, executed at the same time with the deed to Brant, in all probability was made after the money had been received by
Again, the real question is, whether Robertson was debtor to Brant when the conveyance was made, and this might be the fact, although the notes of Robertson to Ford were extinguished —for if, in reality, the parties agreed expressly that the money paid by Brant to Ford should stand and be regarded as money paid and expended for Robertson, which Robertson was to repay and to be personally bound to repay, then he would be the debtor of Brant, notwithstanding the notes were satisfied and discharged. Now, in this condition of uncertainty, as to the real meaning of the finding of the court, it may be, that great • injustice would be done to the parties, if we assume, either that Brant was the holder of the notes given by Robertson to Ford, by an assignment from Ford, or that the finding of the court absolutely imports that the notes and debt were extinguished-, and that Robertson was not the debtor of Brant.
In the argument of this case 'great stress has been placed on the recitals in the agreement, and upon the language used
It might be sufficient for the present disposition of this case, that it be sent back for a farther hearing, but the principal points in the cause have been elaborately and ably argued, and it may be useful, as well to the parties as to the Circuit Court, that our views upon the points discussed be briefly stated.
When the various decisions, involving the difference between mortgages and conditional sales, are examined, it will appear, that the person who, under the pressure of immediate and unavoidable necessity, has apparently parted with his property to the man of money, is generally the party who claims for the transaction the character of a mortgage ; while the opposite party, who has, in his own abundance and the necessities of his neighbor, the means of driving a good bargain, claims that the transaction was a conditional sale, and that only by a strict literal fulfilment of the conditions, can his bargain be wrested
“ It is said, that there is no covenant on the part of Richardson to repay the money, which should be paid by Walker and Fisher, to discharge the incumbrances on the premises. But that is by no means necessary, in order to constitute a mortgage, or make the grantor liable for the money. The absence of such a covenant may, in some cases, where the transaction assumes the form of a conditional sale, be important, to ascertain whether the transaction be a mortgage or not; but, of itself it is not decisive. The true question is, whether there is a debt still subsisting between the parties, capable of being enforced in anyway, in rem, or in personem.” The learned Judge, after referring to some authorities, proceeds : Now, it seems to me clear, upon admitted principles of law, that, on the payment by Walker and Fisher to Bennett, of the money due from Richardson to Bennett, Richardson became the debtor of Walker and Fisher for that amount, as it was paid at his request and for his benefit.” The language of the Judge, in this case, is quoted, not because there is any novelty in the
The great question in this case, and the one upon which we wish a clear finding of the court, is, whether at the time of the conveyance to Brant, and of his covenant to Robertson, there was a subsisting debt from Robertson to Brant. This will be determined by finding whether Brant held the notes of Robertson by assignment from Ford; and if he did not, whether he advanced the money to Ford in payment of the notes, upon any express undertaking of Robertson, to repay the money, otherwise than by forfeiting his interest in the property. If the fact be found, that Robertson at and after the execution of the instruments, was not the debtor of Brant, either by reason of Brant’s being the holder of his notes by assignment, or by reason of his personal undertaking to repay the money paid to Ford, then the transaction, as it is now presented upon the record in its other features, would appear to be a conditional sale; and these features remaining, nothing can change its character, but establishing the fact of personal indebtedness from Robertson to Brant, in one or the other form before indicated.
It is conceded, that there was no interest which could be recognized as an estate at law, except that he was in possession. But, it is contended, that a person in possession of land, under an agreement to purchase, has such an interest, as, under our
But, it is next insisted, that the covenant of Brant, by itself, created an interest in Robertson, which was liable to sale' on execution. The statute subjects to such sale “ all real estate, whereof the defendant, or any person for his use, was seized in law or equity, on the day of the rendition of the judgment, order, or decree, whereon execution issued, or at any time thereafter.” Revised Code, 478. The 66th section of the act, Rev. Code, 488, directs that the term “real estate,” as used in the act, shall be construed to include “ all estate and interest in lands, tenements and hereditaments. ”
In considering this question, no influence is to be felt from any doubt, whether the transaction, as exhibited upon the whole papers, was not a mortgage. The two views must not be blended. If it was a mortgage, then, under previous decisions of this court, Robertson had an interest that might be sold. But the question is, whether, if Robertson was not a debtor of Brant, and had not paid any thing for this right to redeem, or rather to repurchase, and had not yet determined to repurchase, or offered to pay any money toward a repurchase, and when it could only be regarded as a privilege that he should purchase or not, at his election, he could be regarded as the owner of any interest in the property. It is true, as asserted in Atkinson, on Titles,'33d, that “it is a general principle of equity, that what is agreed to be done for valuable consideration, shall be considered as done, and, therefore, after a contract has been entered into for the sale of land, the vendor becomes a trustee of the land for the purchaser, and the purchaser a trustee of the money for the vendor.” But this is for the reason that there is an actual mutual agreement to do the two acts, conveying the land, and paying the money. The case of Townley v. Bidwell, 14 Ver. 590, is one which appears to establish the reverse of the position for which it was cited. A testator executed a lease to Townley for thirty-three years, with a proviso, that if Townley should desire to purchase the premises in six years, he should pay to the testator, or his heirs or assigns, 42600 for the purchase, on having a good title. The testator died within the six years, and within that period, Townley declared his option to purchase. The question in the case was, as to the rents before the option, and when the real was converted into personal estate. The Lord Chancellor declared: “The court must proceed upon a principle applicable to all cases.
Without reviewing the decisions from other states, cited in the briefs of counsel, "it is probably sufficient to declare the view entertained of the meaning of our statute, upon the question now under consideration. When parties have bound themselves by agreement to convey land and to pay for it, equity recognizes an interest in the land as already in the purchaser, and the case is the stronger when the purchaser has actually paid in whole or in part; and in either case, the interest of the purchaser may be sold on execution, upon the principle that the vendor is to be regarded as seized in equity to the use of the purchaser. But if no money has been paid, and if the person who may become the purchaser is not actually under, any obligation to pay, then there is no seizin in the seller, even in equity, to the purchaser’s use, and there is no interest in the land in him, which is liable to sale on execution.
Upon the imperfection in the finding, the judgment will be reversed and the cause remanded.