57 Mo. 189 | Mo. | 1874
delivered the opinion of the court.
The plaintiff alleged in substance these facts in his petition : that in the year 1870, Henry Eaton and Caroline A. Clark owned lot No. 110 in the city of Jefferson, the legal title to which was in said Caroline A., and was subject to an incum-brance of $1,000, created by a deed of trust executed by the
The petition concluded with a prayer that the debt secured by the deed of trust might, with the interest accrued and to accrue, be declared a lien on the property conveyed by plaintiff to Henry Eaton and Mrs. Clark, until such time as they should comply with their contract and remove the aforesaid incumbrance, and also asks for general relief.
The defendants demurred, and the court held the petition insufficient. The correctness of that ruling will now be examined.
The principle on which this lien, in the nature of a trust, is founded, is, that it would be against conscience to permit a person who has obtained the land of another to keep it and not pay the full consideration money. (Ibid, § 1219.)
And the authorities also maintain that this lien or implied trust has “its foundation in the earliest principles of courts of Equity” and exists entirely independent of any agreement between the contracting parties. (§ 1220, and cas. cit.; 4 Kent. Com., 152, and cas. cit.)
And the taking of covenants from the vendee for the pay inent of the purchase money will not amount to a waiver of the lien. (4 Kent., 153 ; 1 Mason, 213, and cas. cit.) If the acceptance by the vendor of covenants from the vendee for the payment of purchase money,would not amount to a waiver of the lien, most certainly it would seem that such result could not follow the acceptance by the vendor of covenants of general warranty as in the present instance.
These observations will, as I think, effectually dispose of the points raised by defendants’ counsel, that the contract was within the statute of frauds; or that it was merged in, and swallowed up by the conveyances which were made between the respective parties; or that a waiver of the lien which a court of equity would, under the circumstances imply, had occurred. And that such a lien exists in the case at bar, an examination, of the foregoing authorities and of .the allegations of the petition, confessed by the demurrer to be true, will conclusively show.
If Pratt had exchanged the Mill tract for lot 110 and $1,000 besides, not a particle of doubt would exist, that that
For these reasons I am of the opinion that the demurrer should have been overruled. And if, upon a final hearing, it shall appear that the allegations of the petition are true, the court below will proceed in conformity with this opinion.
Judgment reversed and cause remanded ;