120 Mo. App. 281 | Mo. Ct. App. | 1906
Action to foreclose a vendor’s lien. The suit was brought against Oliver H. Maxwell and the Fidelity Trust Company as defendants. The answer filed by the trust company disclosed the fact that Gran-ville M. Cole and Charles D. Carlisle owned an interest in the land sought to be subjected to the lien and they were made parties to the suit, entered appearance and filed answers.
In the decree rendered, plaintiff was given a personal judgment against defendant Maxwell in the sum of $932.25; the amount was adjudged to be a lien on Maxwell’s interest in thé land and an order was made foreclosing the lien. The decree was in favor of the remaining defendants, and Maxwell alone appealed. The case is before us on the record proper.
In substance it is alleged in the petition that on the 20th day of April, 1904, William F. Smith being the owner of the land described which is situated in Jackson county, agreed in writing with John A. Kerr to sell and convey said land to Kerr for a consideration expressed in the contract. Afterwards in October of that year Kerr sold and assigned this contract to Maxwell
In the answer of the trust company it is admitted that Maxwell deeded the land to that company, but it is averred that at the time the company loaned Maxwell $6,700, which was applied in part payment of the purchase price, and the deed though in form a warranty deed was in fact intended to be a deed of trust securing the repayment of the loan and was accepted by the Trust Company without knoAvledge of the fact that Maxwell was indebted to plaintiff for any part of the purchase money. Further, it is alleged that at the time of this transaction the defendant trust company, at the request of Maxwell, Cole and Carlisle, executed and delivered a trust certificate certifying that the company held the title to said property in trust for said Cole and Carlisle and would on demand of Cole, and reimbursement of all amounts due to it, convey said property or any part thereof to such person or persons as might be designated by Cole.
Appellants’ chief contention for a reversal of the judgment cannot be entertained for the reason that it is predicated upon a construction of the contract between Smith and Kerr and that contract is not in the record proper and cannot be considered by us since appellant has chosen to present his appeal on the record proper alone. True, the contract was filed with the petition as an exhibit and as such appears in the abstract of record, but an exhibit filed with a pleading, though expressly referred to therein, is no part of the pleading. Being outside the record proper the contract must be ignored. [Vaughan v. Daniels, 98 Mo. 230; Pomeroy v. Fullerton, 113 Mo. 440; Hickory County v. Fugate, 143 Mo. 71; State ex rel. v. Crumb, 157 Mo. 545; Reed v. Nicholson, 158 Mo. 624.]
There is nothing in the pleadings, and certainly nothing in the findings of the court, to force the conclusion indulged by appellant that the contract of sale made by Smith to Kerr imposed no obligation on the vendee to buy, but left it optional with him to complete the purchase within a stated time, and therefore did not operate as a conveyance of any interest in the land and could not serve to create a vendor’s lien. In the absence from the record of the evidence from which
Equity looks upon things agreed to be done as actually performed, and when parties have bound themselves by agreement to convey land and to pay for it, the vendor is considered as a trustee for the vendee of the estate sold, and the vendee as a trustee for the purchase money for the” vendor. The vendee in equity is actually seized of the estate and may sell or charge it before it is conveyed to him. [Block v. Morrison, 112 Mo. 343; Jones v. Howard, 142 Mo. 117; Kerr v. Day, 14 Pa. St. 112.] The assignment of the contract by Kerr to Maxwell operated as a transfer of the equitable estate owned by Kerr, and the purchase money which Maxwell bound himself to pay consisted of the consideration Kerr agreed to pay Smith for the land, plus the sum of $2,250, Maxwell agreed to pay Kerr for an assignment of the contract. As between Kerr and Maxwell, the former was entitled to a vendor’s lien on the equitable estate conveyed by the assignment to secure the payment of the unpaid remainder of the consideration Maxwell agreed to give for the assignment. “The lien for the unpaid purchase money of real estate is recognized to the same extent in case of a sale of an equitable title as of a legal one.” [Bledsoe v. Games, 30 Mo. 448.]
As a lien existed in favor of Kerr for the amount of the check he received from Maxwell in part payment of the purchase money, the assignment of that check to
' The equitable interest in the land owned by Maxwell expanded into the full legal title by the delivery to. him of the warranty deed executed by Smith, but the estate thus acquired was burdened with plaintiff’s lien; and when Maxwell in turn conveyed the legal title to the trust company, the lien still continued at least against the equitable interest reserved by him. Since plaintiff has not appealed but is content with the foreclosure of his lien against Maxwell’s interest alone, it is not necessary to consider whether the decree should have so restricted his lien. No error was committed in foreclosing the lien against the interest of Maxwell.
It is contended by appellant and admitted by respondent that error was committed in rendering a personal judgment against appellant for the amount of the debt, and respondent asks that the decree be modified to eliminate that judgment. Without expressing any opinion on the question involved in this admission, we perceive no reason for denying respondent’s request. [Sweem v. Railroad, 85 Mo. App. 87; State ex rel. v. Evans, 176 Mo. l. c. 325.]
Accordingly, the judgment is affirmed as to the lien only.