Thomas v. Bridges, 73 Mo. 530

Thomas v. Bridges

73 Mo. 530 | Mo. | 1881

Lead Opinion

Sherwood, C. J.

The only points of resemblance between this case and that of Wooldridge v. Scott, 69 Mo. 669, are that in each instance, the administrator made a deed conveying the land of his intestate, and subsequently sought to enforce a vendor’s lien against the land thus sold. But right here all resemblance between the twTo cases ceases. In Wooldridge’s case there was no fraud; here, on tjie contrary, J. W. Montgomery, former husband of defendant, falsely and fraudulently representing to plaintiff that he was the owner of the Stubblefield claims, induced plaintiff' to make a deed to May, reciting that the purchase money had been paid, when in truth and in fact only a small portion thereof had been paid, and a balance equal in amount to the Stubblefield claims was then, and still remains unpaid. Plaintiff afterward made final settlement of the estate of Griffith, and subsequently thereto ascertained for the first time, and after Montgomery’s death, the fraud the latter had perpetrated upon him, and was compelled by judgment rendered to make good the loss occasioned by the fraud. It is evident that Montgomery, the perpetrator of the fraud, was the real purchaser of the land, and that May was the mere conduit of the title to Montgomery’s then wife, the present defendant. In such *534circumstances she is to be regarded, as a mere volunteer, and occupies no better position than Montgomery himself would, had he taken the title of the land in his own name. It matters not that she was not personally present when the fraud was accomplished, and had no knowledge of it until long after its perpetration. It suffices that she is the recipient of the fruits of that fraud, and holds them, therefore, by as precarious a tenure as if she had been an original and active fraud feasor.

The case of Skinner v. Purnell, 52 Mo. 96, resembles this one. There, Purnell purchased property, had the deed made to his wife, paid a portion of the purchase money, and for the residue gave his note professedly secured by deed of trust on property which he fraudulently claimed to own, and held that the vendor was not divested of his debt and his lien by the fraudulent contrivance, but that he could enforce his lien againt the land conveyed to the wife. Here a similar fraud was practiced, the only difference between the two cases consisting in this, that Purnell fraudulently represented himself as the owner of the land on which he pretended to secure the note for the balance of the purchase money, while Montgomery made a similarly false representation as to his ownership of the Stubblefield claims. In Wooldridge’s case a very broad intimation is given that if fraud had been practiced relief would be afforded “ on the foot of the fraud.” The element lacking in that case is fully supplied in this. It is not to be tolerated that such a fraud as we are now discussing should be successful. If in an ordinary case, a case free from fraud, the lien of the vendor is founded on the idea that it would be against conscience to permit a person who has obtained the land of another to keep it and not pay the purchase money, (2 Story Eq. Jur., § 1219,) would it not be doubly unconscionable in a case of this character that the land should be retained and exempted from its equitable burden, the purchase money? Inasmuch, therefore, as plaintiff, through the fraudulent machinations of *535Montgomery, was compelled to pay the remaining sum due on the land which defendant now possesses, we shall hold, as did the court below, that plaintiff is entitled to be subrogated to whatever rights the estate of Griffith had in the premises, and to have similar enforcement thereof.

II.

In relation to the homestead right claimed by defendant, it is enough to say that there is no evidence of such right, and if there were, it would be in subjection to the vendor’s lien. Thompson Homestead, §§ 330, 331.

III.

If it be true that defendant has a dower interest in the land, an interest in existence at the time the land was sold by the administrator, as a matter of course, the vendor’s lien would not defeat that right. By taking proper steps, the dower of defendant can. be assigned her and the lien enforced against the residue of the land against the revissionary interest in that portion in which the dower shall be admeasured and assigned. Judgment affirmed.

All concur.

Rehearing

On Motion for Rehearing.

Sherwood, O. J.

As there was no evidence of any homestead right in the defendant, our remarks respecting such right had no foundation, and we, therefore, withdraw them. Adhering to our original opinion, we deny the motion for rehearing.

All concur.