This was an action of ejectment in the usual form. The defendant in answer pleaded a general denial, along with a statement of facts constituting the title under which he claimed. It, also, included an offer or tender of $230, for the purpose of discharging a lien of that amount in favor of the plaintiff, Quell, in the event a lien should be adj udged in his favor.
It is unnecessaiy to consider the motion for a judgment on the pleadings, which concluded with a replication
The Hannibal & St. Joseph Railroad Company is admitted by both sides as the common source of title. On the 12th of January, 1880, the company executed and de-' livered to one Lucius L. Seiler two written eo’itracts, wherein it is recited that said Seiler had made the first of four payments for the parcels of land in controversy amounting to $230, and that upon making the remaining three at specified times, the company would make conveyance of land to him. He was to have the immediate right of possession and cultivation until default in the deferred payments. By virtue of a judgment against Seiler of April 9th, 1878, an execution issued on the 19th day of January, 1880, under which levy was made on this land on the same day. The sale under this levy was made on the 12th of April, 1880, at which the defendant, Robert Hanlin, became the purchaser. If Seiler was the beneficial owner of this land as disclosed hy the written contracts, at any time duringthe lien of the judgment under which the defendant purchased, and before enforcement of the lien by execution and sale, then the equitable estate with the right of immediate possession passed to the defendant. It appeared in evidence that the money paid by Seiler for the land belonged to one Leonard C. Livengood, who held toward him the attitude of a helping friend.
The evidence tends to show that with this money of Livengood’s the land in controversy was to be purchased by Seiler, and the contract taken either in the name of Liven-good or in the name of Seiler, and then assigned to Liven-good. The land was thus purchased by Livengood’s money, and the contract of purchase was assigned to Livengood by Seiler, by assignment of the same date with the date of pur
The defendant insists that from sundry exjaressions of witnesses in their testimony, there was an understanding or arrangement between Livengood and Seiler by which Seiler was ultimately to have the land, upon repaying Livengood his advance of $230, and any other advances he might make upon it, and that under this arrangement the contract for title and possession, claimed by Livengood, was held only as security for his advances, and that Seiler, or his execution assignee, would be entitled to the contract and right of possession, subject only to a lien for said advances, which the answer offered to pay off and discharge.
This view of the evidence did not prevail with the court trying the case, and I perceive no good reason for disturbing its judgment upon it. I am inclined to believe from the evidence, that Livengood, as a friend deeply interested in the welfare of Seiler, entertained an intention of helping him at some future time to the ownership of the land. But at the time of the levy or lien, this intention remained entirely voluntary and executory in the mind of Livengood, and Seiler had nothing definite to show for it, and had done nothing to make it obligatory on Livengood to carry out his intention. Seiler had never paid anything on account of the land, neither had he ever been in possession of it, or made any improvements upon it, which would
I do not think Seiler was possessed of any estate in the land subject to execution. In accordance with these views the judgment should be affirmed. The Hannibal & St. Joseph Railroad Company may have been an unnecessary party to the suit when it was commenced, having parted with the right of possession until default under the contract of purchase. Since suit, the right of possession may possibly have passed from Quell to the company by reason of such default, and we will not undertake to say in which one it now resides. As the objection to the misjoinder was not taken or urged in the lower court at any stage of the proceedings, we do not think it necessary to order the name of the company stricken from the record. ' The company, in any view of the case, holds the legal title in trust for Quell, the co-plaintiff, in accordance with the terms of the contract held by him. Affirmance is ordered.