159 Mo. 308 | Mo. | 1900
On the eighth of December, 1892, Henry Maltby and T. Jefferson Roe, being the owners, by their deed of trust of that date, duly executed and recorded, conveyed a lot of ground in lot or block thirty-two of Peter Lindell’s Second Addition to the City of St. Louis, and in Block 4877 South, of said city, particularly described in the petition by metes and bounds, to M. B. O’Reilly, to secure to Will J. Howard, the payment of one principal note for the sum of $16,000, payable five years from date; one principal note for the sum of $4,000, payable in five years after date, and ten interest notes, each for the sum of $480, payable in
Afterwards, in the latter part of December, 1892, Mrs. Landau, who was the curatrix of her minor .children, the plaintiffs herein, purchased said notes with funds belonging to the estate of her said wards, and they were then assigned and delivered to her as such curatrix, and thus the plaintiffs became the owners and holders thereof and of the deed of trust aforesaid securing the payment thereof.
Afterwards, Henry Malfby, having in the meantime acquired the interest of T. Jefferson Roe in the premises, subject to said deed of trust, by mesne conveyances, on the twentieth of July, 1893, executed a deed of trust of .that date, duly recorded, conveying the premises to Joseph O. Darst to secure to Joseph Gummersbach the payment of a principal note of that date for $6,000, payable May 1, 1894, and “three interest notes of same date for $90, $90 and $120, maturing October 8, 1893, January 8, 1894, and May 8, 1894, respectively. Default having been made in the payment of the first of said interest notes, said deed of trust was duly foreclosed by sale on the twentieth of November, 1893, and the said Gummersbach became the purchaser thereof for the sum of one hundred dollars and received the trustee’s deed therefor dated November 10, 1893.
Afterwards, by two warranty deeds duly executed and recorded, one dated December 1, and the other December 7, 1893, the said Gummersbach conveyed the premises, subject to plaintiff’s deed of trust, to the. defendant William R. Cottrill.
Afterwards on the sixth day of January, 1894, in an action in the circuit court, city of St. Louis, wherein the Iiyn
Prior to the time when Cottrill purchased the property from Gummersbach, all the interest notes which matured under plaintiffs’ deed of trust were paid by the then holders of the equity of redemption. After that time they were paid by Cottrill, who continued paying them as they matured until the last two matured on Eecember 8, 1897, when the principal notes also matured. The principal notes of $20,000, and these two last interest notes, he then and thereafter refused to pay, claiming title superior to plaintiffs’ deed of trust under the sheriff’s deed to him, made in pursuance of the sale under the execution on the mechanic’s lien judgment aforesaid. Thereupon this suit in equity was instituted on the eighth of February, 1898, the plaintiffs setting up these facts in the petition, and others not necessary to be stated, and praying for appropriate relief, upon which issue was joined by the defendant Cottrill, and his title under said sheriff’s deed set up as a defense to plaintiffs’ action.
On the trial, the court found all the issues for the plain
T. By the mechanic’s lien law it is provided that the lien for materials furnished for, shall be preferred to all other incumbrances upon, the buildings or grounds subsequent to the commencement of such buildings. [R. S. 1889, sec. 6711.] And that in all suits to enforce such liens “the parties to the contract shall, and all other persons interested in the matter in controversy may, be made parties, but such as are not made parties shall not be bound by any such proceedings.” [R. S. 1889, sec. 6713.]
The plaintiffs were the owners of the notes and the beneficiaries in the deed of trust of December 8, 1892, at the time when the hardware company commenced furnishing the material for the buildings on the fifth day of January, 1893, as stated in their account filed for a lien. They were such beneficiaries at the time the lien was filed, and at the time the suit was instituted to enforce that lien. They were not made parties to that suit, and. were not bound by the proceedings and judgment therein. [Crandall v. Cooper, 62 Mo. 478; Coe v. Ritter, 86 Mo. 277; Hicks v. Scofield, 121 Mo. 381; Russell v. Grant, 122 Mo. 161.] They were strangers to that suit, and their rights were not affected thereby. The fact that Howard, the original payee, was made a party to the suit did not make plain
These conclusions are of course predicated upon the lien as it appeared upon the record, the commencement of which was indicated by the first material furnished, which was on January 5, 1893. On the trial, however, the defendant introduced evidence tending to prove that the buildings were commenced (in October, 1892) prior to the execution of plaintiffs’ deed of trust and his counsel contend that such being the fact the plaintiffs’ deed of trust was cut out by his sheriff’s deed. It is true that the statute gives the material-man a right to a lien superior to any incumbrances subsequent to the commencement of the building, whether the materials were furnished before or after the date of the incumbrance. The statute requires, however, that in order to obtain such lien he must file “a just and true account of the demand due him.” [R. S. 1889, sec. 6709.]
In Coe v. Ritter, supra, this court, per Sherwood, J., said: “Of course, it is expected that ‘a just and true account’ shall contain all the various items and dates that go to make it up, for this is the accustomed meaning of the words. If, after a lien filed, and dates given, it were allowable to introduce parol evidence to show that materials were furnished at an earlier or later date, as interest or lapse of memory might suggest or cause, the tenure of others interested in the land
It is true, that in that case the lien was sought to be extended beyond the face of the record by showing by parol evidence that the materials were furnished at an earlier date than the earliest date given in the lien, while in this case a like extension of the lien is sought, by showing by parol evidence, that the buildings were commenced at an earlier date than the earliest date given in the lien. But the same object is sought to be accomplished, and by the same means; and it ■would seem, that the legal principles announced in that case are just as applicable to the case in hand. If so applied, there can be no question but that the circuit corirt was right in holding that the interest acquired by the defendant Cot-trill in the premises by his sheriff’s deed was subsequent and subject to the plaintiffs’ deed of trust, which was executed and recorded before tire earliest date given in the lien, the
II. The decree of the circuit court, however, can be sustained on another ground growing out of the relation which Cottrill sustained to the plaintiffs’ deed of trust at the time he bought under the mechanic’s lien judgment.
Gummersbaeh took his deed of trust subject to plaintiffs’ prior deed of trust as is therein expressly recited. By his foreclosure sale and purchase under that deed of trust he stood in no better relation to plaintiffs’ deed of trust than he did before. In respect thereof he simply stood in the shoes of the mortgagor with his right to redeem. This equity of redemption he sold and conveyed to Cottrill, they estimating the premises at the time to be worth from thirty-two to thirty-five thousand dollars, and the equity to be worth from twelve, to fifteen thousand dollars, and upon this basis they traded, Cottrill paying as the purchase price of the property the amount at which the equity was estimated, and accepting the conveyances of Gummersbaeh reciting that they were subject to plaintiffs’ deed of trust, .and thus the amount secured thereby became a part of the purchase price which Cottrill was to pay for the premises.
Standing in this relation to plaintiffs’ deed of trust, Cot-trill could not in equity and good conscience, for the purpose of defeating it, purchase an outstanding title or incumbrance for a mere trifle compared with the real value of the property.
It is well-settled law that, “One who takes a conveyance absolute or conditional which recites that it is second or subordinate to some other lien or incumbrance can in no proper sense claim that he is the purchaser of the entire thing. He purchases only the surplus or residuum after satisfying the other incumbrance.” [Jones, Chat. Mort., sec. 494; Young v. Evans-Snyder-Buel Com. Co., 59 S. W. 113, and authorities cited.]
But this case presents these other significant features. The defendant took his title with an express recital in his conveyances that they were subject to the plaintiffs’ deed of trust, and the amount of that security was in fact a part of the purchase price for the premises, of which he then obtained possession under those conveyances, and of which he has ever since enjoyed the rents and profits, thus bringing the case clearly within another well-recognized rule, thus stated by SiinnuoN, L, in Drury v. Holden, 121 Ill. 137, loc. cit.: “It is well established that when a party purchases premises which are incumbered to ■ secure the payment of indebtedness, and assumes the payment of the indebtedness as a part
In Guernsey v. Kendall, supra, the court said: “If the mortgagor had paid the incumbrances which were paid by tire orator (Guernsey, the purchaser from the mortgagor), it would have been the payment of his own debts, which he was obliged to pay to relieve his estate. The orator, by the purchase of the equity of redemption, acquired the estate of the mortgagor. He had no greater estate to convey than the right to pay off the incumbrances then resting upon the premises, and by so doing his grantee would become the owner of the estate. In the absence of an agreement to pay incumbrances, it is optional with the grantee of an equity of redemption to pay them or not. • If he would preserve his estate in the premises upon which the incumbrances rest, he
So that, from whatever standpoint we view this case, we find the decree of the circuit court not only in consonance with law, but with the dictates of common honesty and fair dealing between parties sustaining the relations that these parties did to each other. The judgment of the circuit court ought therefore to be affirmed, and it is so ordered.