92 Mo. App. 20 | Mo. Ct. App. | 1902
There was no vendor’s lien on the land to secure the notes held by the respondent, as it was waived by taking the deed of trust. That is the doctrine which has been several times declared and is still law, as we think, in this State as it is elsewhere. Emison v. Whittlesey, 55 Mo. 254: Briscoe v. Callahan, 55 Mo. 134; Orrick v. Durham, 79 Mo. 174. There is this qualification of the rule; if the mortgage or deed of trust given to secure the purchase money of land expressly reserves a vendor’s lien, the latter survives the taking of the documentary security. Certain cases appeared to shake the rule for a while; but those eases were commented on in a still later decision of the Supreme Court and a distinction attempted which was thought to show they were in harmony with the current of authority. At all events the commonly received doctrine as enunciated in the cases above cited was reaffirmed as the law. Winn v. Lippincott Investment Co., 125 Mo. 528. The deed of trust given to secure the notes held by the plaintiff, instead of reserving a vendor’s lien, expressly recited that it was given to secure the purchase price of the land and must be held to .have been made in lieu of the equitable lien or to have supplanted it. Nevertheless, plaintiff
In Rodgers v. Tucker, 94 Mo. 346, one of the cases supposed to modify the general rule in regard to the lien being lost by taking a mortgage, it was said:
“The lien is doubtless waived, there being no reservation of it, in the sense that it is not available as a basis for relief independent of the mortgage, for the mortgage is the higher security.”
The theory of that opinion seems to be that 'the lien is merged in the mortgage; but it lends no support to the notion that the holder of a debt owing for the purchase price of land and secured by a mortgage on the land, which reserves no vendor’s lien, may wholly ignore the mortgage and enforce such lien as being a security which the law has preserved for his benefit in full life and vigor, notwithstanding the fact that he protected himself by an instrument which directly charged the land with a lien to secure the debt.
The former suit brought by Knollenberg to cancel the mortgage ought not to abate the present one because it is on a different cause of action. Erom what we are able to gather from the rather meager contents of the record concerning that suit, it is one to have the deed of trust cancelled and set aside and not to have the notes secured thereby discharged or to compel Nixon tó accept payment of them. No offer was made to pay the notes when the case, was tried, nor was there a tender of the amount due in court.
Respondent is entitled to a personal judgment against Knollenberg on the notes, so far as we can see, by virtue of the assumption of the debt which the law imputes to Knollenberg on account of the stipulation to that effect contained in the deed made to him by Henderson. It is true the recital is that he agreed to assume the payment of the mortgage in favor of the respondent, but the only rational interpretation of that
The petition is good as a declaration on the stipulation •to pay the notes, but appellant Kinollenberg is entitled to a jury trial on the issues tendered by it.
No case whatever was made against Emma' Laughtin.
The judgment is, therefore, reversed and the cause remanded.
