Smith v. Schneider

23 Mo. 447 | Mo. | 1856

Scott, Judge,

delivered the opinion of the court.

Schneider-became the purchaser of Simms’ equitable title at a sheriff’s sale. He took that title with its encumbrances. As Simms could not have obtained a title to the land without paying the balance of the purchase money, Schneider, claiming under him, was in no better situation. He could only get the land by paying the sum he bid for it and the balance of the purchase money. That was the bargain he made when he be-«ame the purchaser at the sheriff’s sale. Smith, being the security of Simms for the purchase money, when he paid it he had a right to be substituted to the equity of the owner of the land, which equity was to hold the title until the purchase money was paid. Now, as Schneider bought the land subject 60 the payment of the unpaid purchase money, and as Smith, the surety of Simms, has paid that money, he is entitled to have the land sold in order that it may he refunded to him.

The doetrine in relation to the discharge of the lien for the payment of the purchase money is not applicable to this case, as the owners of the land had never parted with their title by the execution of a deed>;i.The legal title was in them, and they had an equity to have the land sold for the purchase money,y and Smith, the surety of Simms for that money, having paid for it, is entitled to be substituted in the place of the holders of the legal title, whoever they may be. The other judges concurring, the judgment will be affirmed.