On the fifth day of September, 1873, .John M. Lindsay, being the owner in fee of the undivided • half of section 8, township 59, range 32, in DeKalb county, executed his note of that date to the St. Joseph Building Company for .the sum of six thousand dollars, and on the same day, with his wife, executed a deed of trust on said undivided half of said section to secure the payment of said note, which was recorded on the ninth day of September, 1873, in said county. On the first day of December, 1873, the said Lindsay executed his note, payable to the order of Joel T. Smith, six months after date, for the sum of seventeen hundred and fifty dollars. About the first of July, 1874, Lindsay applied to one House, at Cameron, Missouri, who was the agent of plaintiff, a money-lender, then resident in Bloomington, Illinois, for a loan of twenty-five hundred dollars to pay off said deed of trust. House, at the instance of plaintiff, examined the records of DeKalb. county, made an abstract of Lindsay’s title to said real estate, showing that there were no incumbrances on said property except said deed of trust, and forwarded it to the plaintiff, informing him that the money to be borrowed was to be used in paying off the •debt, secured by said deed of trust. Thereupon plaintiff prepared three bonds or notes and a deed of trust on said real estate to be executed by said Lindsay, each bearing date the first of July, 1874, two of the notes for one thousand dollars each and one for five hundred ■dollars, payable to 'plaintiff on the first of July, 1879, at
On the twelfth of December, 1874, Gideon C. Para-more recovered judgment in the circuit court of Clinton county against Lindsay on the Smith note for nineteen hundred and seventy-two dollars, and on the fifteenth of December, 1874, filed a transcript of said judgment in the office of the clerk of the circuit court of DeKalb county, which was thereupon duly docketed and recorded by said clerk. On the twenty-third of January, 1875, Lindsay signed the bonds, and he and his wife executed and acknowledged the deed of trust prepared by plaintiff, and the same were delivered to House, his agent, who thereupon placed plaintiff’s draft on New York for twenty-five hundred dollars in the Cameron Deposit Bank, to be delivered to the St. Joseph Building Company upon the surrender by them of Lindsay'’s note and a release of their trust deed.
On the twenty-fifth of January, 1875, the building -company in Buchanan county executed and acknowledged a release and satisfaction of their trust deed to Lindsay in consideration of the sum of twenty-five hundred and ten dollars paid by him, and on the twenty-eighth of January, 1878, this deed of release and Lindsay ’ s deed of trust to Powell to secure plaintiff’s-bonds, were at the same time filed for record in the office •of the recorder of DeKalb county. In March, 1876,
At the October term, 1878, of the. Clinton circuit court, to which the execution was returned, Lindsay filed a motion to set aside the sale for the reason that a homestead in said land had not been set off to him by the sheriff prior thereto, which motion was by him withdrawn at the October term of said court, 1879. On the tenth of September, 1879, Paramore, by general warranty deed, conveyed said land to the defendant, James B. Leisenrig for the expressed consideration of twenty-five hundred dollars.
At the April term, 1884, of the DeKalb circuit court plaintiff instituted this suit, in his petition charging that defendant Leisenrig paid no consideration for the land and received his deed therefor with notice of the foregoing facts, and that the sale to Paramore was void for the reason that the sheriff failed to set off Lindsay’s homestead, and praying that he be subrogated to all the
On the fifteenth of December, 1874, Paramore’s judgment, a transcript of which was on that day filed in the office of the clerk of the circuit court of DeKalb county, became a lien on the undivided half interest of Lindsay in section 8. Lindsay with his family at that time was residing elsewhere. In March, 1876, he first moved with his family upon the section and then first occupied the house which he had previously built thereon, as a home. His right of homestead exemption was then for the first time impressed upon the land, which before that time he owned but had never occupied as a homestead. The right of homestead which he then acquired by such occupancy was subsequent and subject to the prior lien of Paramore’s'judgment, and could not be by him asserted against it. He had no homestead right exempt from sale under the execution issued upon
If, however, Lindsay had been entitled to a homestead exempt from sale under execution upon this judgment and the sheriff failed to set it off, the sale would not have been void by reason of such failure. Crisp v. Crisp, 86 Mo. 630. The fee would pass to the purchaser subject to his right of homestead (Black v. Curran, 14 Wall. 463), which right would not be in any manner affected by the sale, nor could the purchaser at such sale get possession of any part of the premises without setting off that homestead so long as it was occupied by him as such; and doubtless having the right to have the same set off before sale, the failure of the officer to do so would afford the homestead occupant good ground for having the sale set aside at the return term of the execution. This right Lindsay proceeded to assert at the return term of the execution, but afterwards withdrew his claim, abandoned the premises, and there is no question of homestead in the case.
The plaintiff claims that, upon the facts stated, he has a right to be subrogated to the lien - which the St. Joseph Building Company had upon the land prior to Paramore’s judgment lien, to the extent of the amount ■of money furnished by him to pay off that lien, with interest. It is not perceived upon what principle this •contention can be maintained. The loan of twenty-five hundred dollars, by plaintiff to Lindsay, the execution of the notes by him to the plaintiff, and of the deed of trust to secure them, the payment of the money to the building company, and its acceptance by the company,
There is'not a scintilla of evidence tending to show that the money paid to the company vj-as for the purchase of their lien, and its release to Lindsay, while in the form of a quit-claim deed, states, in express terms, that it is in satisfaction of the deed of trust, and all the facts negative the idea that it was intended as an assignment. There was no evidence tending to prove any agreement that the lien of the building company was to be kept on foot for the benefit of plaintiff. On the contrary, all the facts negative the idea that such was the intention of any of the parties to the transaction. The facts proven show that the plaintiff is not entitled to the subrogation which he prays for, either as of right or by convention. “ The demand of a creditor which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely ■extinguished, but the doctrine of subrogation will be
The debt due by Lindsay to the building company and the- lien given to secure it were absolutely extinguished by the payment. Such was the intention of all parties to the transaction. The plaintiff relied for security for the money he advanced solely upon the deed of trust which he took at the time, and the sole ground upon which a court of equity is asked to intervene in his behalf in this case is the assumption that he would not have parted with his money to make the loan and payments if he had known, in January that Para-more’s judgment lien had attached to the premises in December. Why didn’t he know it? That judgment was spread upon the public records in order that all who-might deal with the property might know of its existence. He was -not prevented from examining the record or lulled into security by any representation of Para-more, Lindsay, or anybody else. He didn’t know simply because neither he nor his agent looked that he might see and know. That plaintiff’s security was less valuable than he expected it would be when he made the-loan was the result of his own negligence and not of the fault, wrong, or mistake of any other person. Against the consequences of that negligence, for which he has no one to blame .but himself, a court of equity cannot relieve him by interfering with the legal rights of others who are without fault. The authorities cited by appellant and many others have been examined in vain to find any recognized equitable principle which would warrant-the court in so doing. The relief which courts of equity
The judgment of the circuit court is affirmed.