192 Mo. App. 125 | Mo. Ct. App. | 1915
This is a suit on a promissory note dated December 16, 1910, due one year after date, executed by the defendants to Chris Sebolt or order and by him assigned, after maturity and without recourse, to the plaintiff O. E. Haley. The execution of the note was admitted but the answer set up that the note was secured by a duly recorded mortgage upon the defendant Mary C. Branham’s undivided one-fourth interest in certain Kansas land; that said land was sold in partition subject to said mortgage and purchased by one Hugh M. Tevis while said mortgage was existing and in force thereon; that said land thereby became primarily liable for the payment of said note; that thereafter and while said land was primarily liable, the plaintiff obtained the note from Sebolt, the payee, and released the mortgage, and, since he has released the property which is primarily liable for the payment of the note, he cannot now proceed against defendants. There is no allegation of'payment nor that Tevis, the purchaser of the land at the partition sale, assumed the payment of the note, nor that it was sold expressly subject to the mortgage, nor that defendants did not receive full value for their land.
The defendants and Sebolt, the payee of the note, lived in Independence, Missouri. Mary C. Branham obtained title to her one-fourth interest in said land by inheritance as one of the four heirs of her father. After the mortgage securing the note in question had been duly recorded, and after the note had matured, it seems that one of the other heirs brought suit for partition of the land and obtained service upon defendants by publication. No mention of the mortgage was made in this suit nor was Sebolt/ the then owner and holder of the note and mortgage, made a party. On the 31st day of August, 1912, judgment of partition was rendered and it was ordered that, if partition could not he made in kind, the land should be appraised and sold. The judgment also canceled a contract between
Defendants, at the time of the stipulation, said nothing about the mortgage on the land and no mention whatever was made of it in the partition proceedings. Thereafter the land was appraised at $4790, but none of the parties interested in said land elected to
After Tevis had bought the land and paid the above amount therefor, plaintiff herein, O. E. ITaley, went to Sebolt at Independence and bought the note and took an assignment of it and the mortgage. This was done on July 26,1913. On October 4, 1913, he released the mortgage and thereafter brought this suit on the note.
Defendants’ theory that they should not be required to pay said note is that inasmuch as the purchaser at an execution or partition sale buys only the interest of the parties to the suit and takes the land caveat emptor, therefore, Tevis, the purchaser at the partition sale, bought the land subject to the mortgage on defendants’ interest, and should pay the mortgage too. And hence the land became primarily liable for defendants ’ debt and, since the property primaiily liable has been released, plaintiff cannot look to defendants personally.
It is true that if the equity of redemption be sold on execution, the purchaser cannot either legally or equitably claim that the mortgagor shall pay off the mortgage, and, as betiveen these two, the land remains a primary fund out of which the mortgage should be paid. [Walker v. Goodsill, 54 Mo. App. 631, l. c. 635; 1 Jones on Mortgages, sec. 736; Parkey v. Veatch, 68 Mo. App. 67, l. c. 74.] This principle undoubtedly applies as between the seller and the purchaser of the mortgaged premises. But this is not so as to the mortgagee unless there has been some agreement upon his part or something done by him which binds him to look
Now, Haley, the plaintiff and assignee of the note, stands in the shoes of Sebolt, and succeeds to all the rights of the latter. If Sebolt could sue defendants personally on the note and ignore the mortgage it is not seen why his assignee for value could not do so. Such assignee, unlike Tevis, the purchaser of the land, has done nothing obligating himself in any way. Of course, if Haley was merely acting for Tevis, doubtless he could not do that which Tevis could not do, but there is no evidence whatever that them is any connection or relation between them.
Speaking argumentatively only,, we may say that even if the act of Tevis in buying the land subject to the mortgage (although he did not actually know of it and nothing was said about it), did create, in law as distinguished from equity, the right in defendants as to Tevis to have the land held primarily liable for the debt, still no such legal right would be thereby created as to Raley, the plaintiff. If any such right could arise as to him it would be by virtue of some equity growing out of the facts. But when these am examined we find that there are no equities requiring Haley to treat the land as primarily liable, nor would defendants, by paying off the note, be entitled to recourse on the land to reimburse themselves. The land was partitioned and sold as if it were unincumbered. Defendants did not sell their land and receive in payment therefor a sum diminished by the amount of the mortgage. They got their full share of all that it would
Objection is made to the petition as a pleading but we think the objection is without merit. The only attack made on the petition was by way of an objection to the introduction of the evidence. The very defense pleaded in the answer not only admits the execution of the note set forth and described in plaintiff’s pleading but also presupposes and is based upon the existence and validity of the very facts defendants say the petition fails to state. A reversal and remanding of
The judgment is, therefore, affirmed.