69 Mo. 529 | Mo. | 1879
This is an action of ejectment. The circuit court rendered judgment for plaintiff.
Both parties claim title under one Eridolin Zweifel. In April, 1869, Zweifel contracted with one Dette for the erection of a building on the lot in controversy. During said month Dette began work .under said contract, and Oldenlage and Griesheim performed labor and furnished materials for said building under a contract with Dette. On the 15th day of June, 1869, Zweifel executed a deed of trust on the lot sued for, to secure a note for $10,000, payable to Michael Hammel, in five years, together with ten semi-annual interest notes for $500 each, which deed was recorded July 8th, 1869. Zweifel died September 5th, 1869, leaving a will by which the property in controversy was devised in fee to David Legler and Gotlieb May, who .were also named and acted as executors of said will. On February 28th, 1870, the executors, aforesaid, sold at public sale, under an order of the probate court of St. Louis county, the equity of redemption of Zweifel in the lot sued for, and Dette became the purchaser thereof, at the sum
Conceding the mechanic’s lien to be the senior incumbrance, the purchase by Sternberg at the sale under said lien, did not invest him with an indefeasible ' . title. Section 9 of the statute m relation to mechanic’s liens, is as follows: “ In all suits under this chapter the parties to the contract shall, and all other persons interested in the matter in controversy, and in the property charged with the lien, may be made parties, but such as are not made parties shall not be bound by any such proceedings.” 2 Wag. Stat., § 9, p. 910. So that after the enforcement of the mechanic’s lien, and the purchase by Sternberg, the holder of the Hammel mortgage, or the purchaser at the sale thereunder, still had the right to redeem. Farwell v. Murphy, 2 Wis. 533; Goodman v. White, 26 Conn. 317; Olmstead v. Tarsney, ante, p. 396. This right could, of course, only be asserted by appealing to the equitable jurisdiction of the court; it is not relied on here, nor, indeed could it be in the present state of the pleadings, the answer of the defendant being a general denial only.
The recital in the deed from Dette to Sternberg, however, that the property was conveyed subject to the deed of trust made to secure Hammel, and that „ the pay)» ent thereof was assumed by bternberg, is conclusive of the rights of the parties in this action. The effect of this recital was to make the debt due to Hammel, Sternberg’s own debt, and to render him personally liable therefor. Where land is conveyed subject to a mortgage, the grantee does not undertake or ■become bound by a mere acceptance of the deed to pay the mortgage debt; but if a grantee takes a deed containing a recital that the land is subject to a mortgage which the grantee assumes, or agrees to pay, a duty is imposed on him by the acceptance, and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie.
After the purchase by Sternberg at the sale under execution, the property was, in his hands, as much bound by deed of trust to Hammel as if he had executed that deed. This being so, Heim’s deed of trust was, of course, subject to that of Hammel, and as Hammel*s deed was recorded, and Heim’s deed referred directly to the deed from Dette to Sternberg, which was also of record, Heim had notice that he was a junior incumbrancer, and that a purchaser at a sale under Hammel’s trust deed would take the legal title subject to such rights only as he might have in equity as a junior mortgagee. The judgment of the circuit court must, therefore, be reversed and the cause remanded.
Reversed.