94 Mo. 346 | Mo. | 1887
This was a suit for equitable relief. The facts were these: William C. Rogers, by his deed, dated the second of February, 1877, conveyed to Mrs. Eckhoute certain land in this state. The deed was not delivered until the twenty-eighth day of that month. She then paid in cash one thousand dollars, and executed her notes, maturing at different dates, the last on first of September, 1881, payable to Rogers for the deferred payments, and secured the same by a deed of trust on the land, except ten acres, omitted by design. On the-twenty-eighth of February, 1877, Mrs. Eckhoute sold
Tucker, in his answer, sets up an agreement with Rogers to the effect that he was to have the first and prior lien, but the assertion is without a particle of evidence to support it, and that issue is, therefore, out of the case. Rogers, Tucker, and Mrs. Eckhoute were all present at her house when the deeds and deeds of trust were delivered. They were delivered at the same time, namely, the twenty-eighth of February, 1877, the day on which both deeds of trust were recorded. The parties were all conversant with the different transactions .and the purposes for which they were being made; and the question is, whether the Rogers deed of trust has priority over that given to Tucker.
It has been held, that the vendor, by making a conveyance, and at the same time taking back a mortgage on the same property for a part of the purchase money, does not lose his vendor’s lien; that it simply becomes merged in the mortgage, but not lost. Morris v. Pate, 31 Mo. 315; Linville v. Savage, 58 Mo. 254. Again, it has been said in general terms, that taking a mortgage on the land sold for the purchase money waives the yen
But it does not follow that the equity' of the third person is equal to that of the vendor for the amount due to him. The vendor’s equity would seem to be intrinsically superior to that of the third person. He has a right to dictate how much shall be paid in cash, to the end that the deferred payments shall stand fully secured. We know of no principle of law which requires him to divide the security with one who sees fit to loan the vendee the money to ma¡ke the cash payment. The mere fact that he knew that the third person made the loan for the purpose of making the cash payment does not amount to a waiver of the priority which his mortgage for the purchase money gives him. In City National Bank Appeal, 91 Pa. St. 163, H., by articles of agreement, sold the land to N. Before the latter had fully paid for the land, N. sold to P. and W. H. then conveyed directly to P. and W., and took from them a
After this suit had been commenced, the plaintiff, William C. Rogers, died, and his heirs were substituted as plaintiffs. It is now insisted by defendant that the suit should be prosecuted by the administrator. Rogers died a resident of the state of Illinois, and it does not appear whether there was an administrator in that or this state. The cause should have been revived in the name of an administrator; but the amended petition sets out the death of Rogers, and that the present plaintiffs are his only heirs-at-la,w. No objections were made on the ground of a defect of parties by demurrer ; and the defect, appearing on the face of the petition, was waived by failing to demur. Indeed, no such objection is made in the answer, or in the motion for a new trial.
A complaint is made that the trustee in the Rogers deed of trust was not made a party plaintiff. These trustees in deeds of trust to secure debt generally have no duties to perform save to sell the property in case of default in the payment of the debt. It is not claimed or shown that Picou, the trustee in the Rogers deed of trust, had or possessed any other power than that of
The judgment is affirmed. .