44 Mo. App. 558 | Mo. Ct. App. | 1891
To understand the complicated facts of this case, and the questions presented by this appeal, it is essential to state briefly, in chronological order, the events which give rise to the present controversy. Mrs. Ruth Oreen, while a widow, and fully capable to contract at law, in December, 1873, made her promissory note for $249, payable to the plaintiff one day after date with ten-per-cent, interest. At that time she was entitled to part of the proceeds of her deceased husband’s estate, which, in 1879, she invested in the purchase of the realty hereinafter mentioned. She had married one O’Donoghue in the year 1875, and was his wife at the date of such investment. In February, 1879, the O’Donoghues, husband and wife, made a note for $275 to Alexander, curator, and executed a deed of trust, with power of sale of the realty, to Wilson, to secure said note. In Apifll, 1879, the plaintiff filed his bill in equity charging that the real estate, thus acquired by Mrs. O’Donoghue, was her separate estate, and that, at the time she made the note to him in 1873, she promised to pay the same out of the proceeds of her separate estate. Alexander, curator, was made a party defendant to this bill, as was -also Wilson, the trustee. The bill prayed that the realty, which Mrs. O’Donoghue bought as above in 1879, be sold for the payment of the balance due on the note executed in 1873, but prayed
The points urged for reversal of the decree are, that the claimants under the two deeds of trust took with notice of plaintiff’s prior lien, and are precluded by the decree in plaintiff’s favor, and that, even if such were not the fact, the court erred in not compelling them to exhaust their security against that part of the premises set apart as a homestead, on the theory of marshaling securities. Touching the second point, it will suffice to say that the plaintiff ’ s bill is not brought on the theory of marshaling securities, as his former bill was, on which we passed in Burgess v. Hitt, 21 Mo.
In regard to the first point, the statement of the facts above set out shows, without extended comment, the correctness of the decree appealed from. The plaintiff, under the well-settled law of this state, had no lien on the realty under his decree against the O’Honoghues, until the date of his decree, which was subsequent to the inception of the lien created by the two deeds of trust. Davis v. Smith, 75 Mo. 219; Boatman's Bank v. McMenamy, 35 Mo. App. 198, 204. Although Wilson and Alexander, the trustee and cestui que trust in the first deed of trust, were made parties to that bill, the bill prayed no relief against them, nor did the decree grant any relief. Had the decree done so, then, however unwarranted the decree might have been, they would have been bound by it, and the question which the appellant now seeks to raise, that those claiming under them are equally bound, would be one to be discussed and to be decided. As it is, that question is not in the case. It is also foreign to the issues raised by the record, whether and to what extent lis pendens, without record of equitable lien under the statute, is notice to the world, or whether such record is unnecessary, where actual notice is shown, since in our view, even if there had been a recorded notice, it could not have changed the result. The question of priority
All the judges, concurring, the decree is affirmed.