59 Mo. 371 | Mo. | 1875
delivered the opinion of the court.
This action was in the nature of a bill in chancery, the object of which was to divest the title to certain lands in the petition named out of the defendant, and to vest the same in the plaintiff. The substantial charges in the petition are: that the sheriff of St. Charles county, under the authority of the County Court of said county, on the 11th day of October, 1854, sold to one James Judge the south-west quarter of the south-west quarter of section 16, in township 48, of range 5 east; containing 39 54-109 acres, being part of the lands donated bv act of Congress to this State for purposes of education ; that Judge purchased the land at the price of $316 32-100, for which he executed his bond with defendant as his security; that said Judge or his assigns thereby became entitled, by the payment of the purchase money, to receive a patent from the State vesting the title to said land in said .Judge or his .assigns in fee simple; that on the 12th day of May, 1866, the said Judge executed and delivered a deed of trust by which he conveyed to one A. Griffith, as trustee^ all of his title arid interest in said land, in trust .for the payment of certain indebtedness from said'Judge to the plaintiff, with power of sale in the trustee if default was made in the payment of said debt as therein stated; that default was after-wards made, and said Griffith, pursuant to. the provisions of said deed, on the 9th day of March, 1869, sold said land to
Plaintiff therefore prays a decree declaring defendant a trustee holding the real estate for the benefit of the plaintiff, and requiring that the legal estate be vested in plaintiff, etc.
The defendant in his answer admits the purchase of the land by Judge, as the same is charged in the petition, but denies the other allegations of the. petition, except that he holds the legal title to the land in controversy. The answer then states as a defense to plaintiff’s action that the said James Judge and defendant, having made default in the payment of the bond which was the consideration for said land, the County of St. Charles commenced a suit thereon in the Circuit Court of said county against said Judge and defendant, and on the 15th day of December, 1866, obtained judgment against said Judge and defendant for said purchase money . and interest and costs, which said judgment was also a special judgment against said land, ordering that a sale thereof
The defendant then states that the County Court, on the application of defendant, made the necessary - orders to enable him to obtain a patent from the State, which was issued to him iu due form of law; that the plaintiff had full notice of all the facts set forth in said answer, &c. A replication was tiled by the plaintiff, putting in issue the affirmative allegations in the answer.
The Circuit Court, upon a hearing of the cause, dismissed plaintiff’s bill and rendered final judgment against him. The defendant, in due time, filed a motion- for a rehearing, which, being overruled, he excepted, and has appealed to this court.
The only question presented for the consideration of this court is, whether the suit of -the County of St. Charles against James Judge and the defendant upon the bond given for the purchase money of the land in controversy, the judgment rendered in said suit and the execution issued thereon, together with the Sheriff’s sale of the property by virtue thereof, and the Sheriff’s deed to the defendant, had the effect to vest in the defendant the entire equitable interest in said land, as well that held- by the county as that acquired by Judge by his purchase of the same ? If so, the patent was properly issued .to-the defendant, and the .plaintiff ’s bill was properly dismissed.
An execution issued on said judgment on the 3rd day of May, 1867. The execution properly recites the whole judgment, and then proceeds as follows: “These are therefore to command you, that of the goods and chattels and real .estate of the defendant James Judge, in your county, and above described, you cause to be levied and made said debt, damages, interest and costs, and that if said real estate be -not sufficient to satisfy said debt,'damages, interest and costs, then the residue thereof you cause to be levied of the other goods and chattels and real estate of said defendants James Judge and John Chapman,” &c.
It-further'appears 'that the • remaining sum due-on said •judgment-wasafterwards -collected on a general -execution issued on said judgment out of the personal property of said Judge.
The Sheriff’s deed,-executed from the Sheriff to Chapman, follows the Sheriff’s return on the execution, and only conveys, or purports to convey, to Chapman, the right-, title and interest of James-Judge in and to the land in controversy. This deed is dated April the 9th, 1868.
A deed of trust was executed to Griffith by Judge, conveying this land to him, to secure a debt to plaintiff, on the 12th of May, 1866; and on the 9th of March, 1869,-a-sale was made of the land,'-under the powers in the deed, by Griffith, when plaintiff became the purchaser, as is stated-in his petition. It further appears,- that in -March, 1869, both the plaintiff and defendant appeared in the County Court of St. Charles county and made application to said court to have it certified to the Register-of Lands of this State that the land was fully paid for, and that each of them was the lawful assignee of Judge; and" to direct a patent'to issue'to them, &c. The County Court found in favor of Chapman, and he thereby-obtained the patent for the landy as charged in plaintiff’s petition. ■
It is contended by the plaintiff, that the defendant, -by his purchase' of-the land in controversy at the--sale made by the Sheriff, and by the deed executed by the Sheriff, in confor
It is'insisted, however, in this case, that the purchase of Chapman from the Sheriff was made under an execution •issued on a judgment "which foreclosed tlie right of Judge to ■ a' specific performance of the contract of purchase, and 'that by virtue of said purchase, that Chapman became possessed' of not only the right or interest of the vendee Judge, .but also of all’the right and title of the county in and'to the land, and that the purchase of Chapman therefore related back to the original purchase of Judge from the county, and dims cut off the right of plaintiff under his deed of trust from •Judge on his equitable interest. The general rule is, that a •purchaser, under a sale made to foreclose or enforce a vendors ■lien on land for the purchase money, gets all of the -title held ‘by any of the parties to the action. The question in this case .is, was the sale made to Chapman a proper, or any, enforcement of the vendor’s lien upon this laud? 'The judgment rendered upon the bond for the purchase’ money of the land against Judge and Chapman, although somewhat informal, is substantially sufficient to enforce the vendor’s lien and to "foreclose the right of Judge to a specific performance of the -Contract of purchase, and authorizes a sale of the land, to pay the amount of the judgment, and if a sale had been properly made under this judgment it would have passed the title of all parties to the record.
The execution issued on this judgment properly recited the judgment and directed a sale of the land named in the judgment, &c., and then directed the Sheriff, that if the land failed to bring a sufficient amount to pay the judgment, to .levy the balance of other property, &c. This execution contained a sufficient authority to.authorize the Sheriff to. sell
The question then is, what interest did Chapman get by his purchase? The answer is,-that-Judge having previously given a deed of trust on the land to secure a debt to Lewis, Chapman, by his purchase, was placed exactly in the situation of Judge, and simply acquired his rights, which were to redeem the land from the deed of trust, and pay off the purchase money to the county, which would have entitled him to a deed or patent for the land. This however was
It is, however, insisted, that before Lewis is entitled to force the legal title out of Chapman, he should be compelled to refund to Chapman the amount paid by him.for the land which went to extinguish the vendor’s lien in favor of the county. The defendant has relied upon no such defence in his answer; but, as the object of the judgment upon which the sale took place to Chapman was to foreclose the equity of Judge and sell the entire estate in the land, relieved of all lien for the purchase money, and as Chapman, evidently in good faith, purchased the land with the belief that he was extinguishing the vendor’s lien, and also receiving whatever equity had ever existed in Judge, and when it must be conceded that if the Sheriff had not mistaken his duty in the sale and conveyance of the land to Chapman, the whole title would have passed, and when it is further admitted that the money paid by Chapman actually went to extinguish the vendor’s lien, we can see no reason why, under a proper application to the court, Chapman could not be subrogated to the rights of the county in its vendor’s lien, to the extent that the amount so paid by Chapman went to the extinguishment of said lien.
The judgment will be reversed, and the case remanded, with leave to defendant to file an amended answer in the Circuit Court.