45 W. Va. 82 | W. Va. | 1898
This case was once before in this Court. 38 W. Va., 404, (18 S. E. 561). As there appears, Apperson conveyed land to Skiles, reserving a lien for deferred purchase money, for which Skiles made her bonds to Apperson, not mentioned in the deed.- Afterwards, August 25, 1886, Mrs. Skiles and her husband and Apperson executed a trust deed to a-trustee to secure a debt to Baldwin, recorded September 8, 1886. On September 7, 1886, Apper-son assigned said bonds to Turk. Turk brought a chancery suit to enforce the lien to pay said bonds. A decree of sale was rendered, and sale made under it to Tyree, which decree was reversed and the sale set aside by this Court. Before the trustee or creditor under said deed of trust had been made parties, a sale was made under it, and the land conveyed to Durbin. The plaintiff filed an amended bill, making the trustee and creditor under said trust deed and Durbin parties, and the result was a decree holding that Turk had no lien, and dismissing his bill and Turk and Tyree appeal.
Has Turk a lien on which a suit to sell the: land can rest? Apperson joined in the deed of trust to Baldwin. His only interest was the lien. He meant his dt^'d *to have some effect. It could pass nothing- as to him but the lien, and thus subordinate his right to the purpose or trust declared in the deed. He joined in the deed only to release his lien. Can he set up the lien against that deed, in the teeth of his deed? He had an interest not technically in the land, but an incumbrance or debt to come out of it, and, granting the land, did he not grant that lien? • An estoppel arises, out of the contract, treated simply as such. Bigelow, Estop. 422. At common law a grant was used to pass incorporeal rights or estates, and it passed just what the grantor at the time had, and all of it, not that
There is another view adding force to the contention that the lien passed to the trustee. By the deed of trust the granting parties, including Apperson, “do grant, bargain, sell and confirm” unto the trustee the land. Here is the word “confirm.” It has a legal force under the law of conveyances. “A confirmation is of a nature similar to a release. Lord Coke defines it to be: ‘A conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or a particular estate increased.’” 2 Lomax, Dig., 101; 2 Tuck. Comm., 253. To make sure a voidable estate is the proper office of confirmation. 2 Minor, Inst., 717. Apply this law to this case. Mrs. Skiles owns the land, but subject to Apper-son’s lien, which lessens and endangers her ownership
The deed retaining the vendor’s lien mentioned no bonds for it, and the beneficiary under the trust deed is a purchaser for value without notice of the bonds. Bank v. Harman, 75 Va., 604. I hardly think, however, that view important, for at the date of the trust Apperson yet owned the notes. Here are purchasers for value, — Baldwin, creditor, and Baldwin trustee. They have the first assigmment in time. I have always understood that it was a bed-rock principle of equity that it would not disturb a purchaser for valuable consideration without notice, though he be junior to the adverse claimant; but here the proposition is to take from such a purchaser who is prior in time. How can this be done? The well-considered case of Bank v. Harman, 75 Va., 604, is decisive authority on this principle in favor of Baldwin, though Baldwin has a stronger case than had O’Toole in that case, because here Baldwin is first in time. In that case Harman, Sr., sold to Harman, Jr., a house and lot, making a deed and reserving a lien for purchase money, but not mentioning the existence of any note for it, just as in this case. Har-man, Sr., took a note for the purchase money, and transferred it to the bank. Then Harman, Sr., made a contract selling the house to O’Toole, and Harman, Jr., made O’Toole a deed. The question was whether the bank, as assignee of the note, could enforce the lien; whether, as
It will not do to say that the lien cannot be assigned without actual delivery of the notes. A separate instrument may assign a debt and its lien. Spring v. Insurance Co., 8 Wheat., 268; 2 Atn. & Eng. Enc. Law, 1056. The lien is one thing, — a charge on the land; the note another,— a mere evidence of personal demand. Bowie v. Poor School Soc., 75 Va., 300, 303. True, when bonds are assigned they carry the lien; but if, before they are assigned, a separate paper has operated to assign the debt and lien, it is ineffectual. This deed did not hint at any bonds for purchase money. 2 Jones, Liens, § 1121, says: “If the deed which retains a lien for purchase money does not refer to any note or bond for such purchase money, a sub
The fact that the trust deed was not recorded until after the assignment of the bonds to Turk is irrelevant. A transfer or discharge of a lien for purchase money need not be recorded to bind a subsequent assignee, it being good-as to him though he have no notice of the transfer or discharge, however necessary notice to the debtor may. be. Tingle v. Fisher, 20 W. Va., 498] Fleshman v. Hoylman, 27 W. Va., 728. If we view the instrument -as a deed of trust, conveying, not only the land, but the debt or chose, it need not as to the chose be recorded to bind subsequent purchasers or assignees of the chose; for the words “goods and chattels” in section S, chapter 74, Code, requiring deeds of trust of goods and chattels to be recorded, does not apply to choses in action, but only to visible, tangible, movable personal property. Cases just cited. And the trustee under the trust might have the lien, and Turk the bonds, their personal obligation, as they are for certain purposes separate. The trustee and creditor under the deed of trust are purchasers for value. Weinberg v. Rempe, 15 W. Va., 831; Duncan v. Custard, 24
Next comes the queston, has Turk a vendor’s lien as against Mrs. Skiles? I think not, because the deed of trust conveys the land upon three trusts specified in it, namely: (1) Out of the proceeds of sale in default of payment to pay costs of executing the trust; (2) to pay Baldwin’s debt; (3) to pay the balance to Mrs. Skiles, — .this third purpose of trust operating to discharge the lien as to Mrs. Skiles whether under the doctrine of release, merger, or estoppel a court of equity, in its desire to execute the intent, will not be particular in saying. Apperson had a moiffey demand charg-ed on the land. His deed, importing by its seal consideration, directs that money to go to Mrs. Skiles. Can he or his assignee claim it against that deed? And here is a union in one person, Mrs. Skiles, of the land and the charge. Is not this a merger of the debt? “All inferior estates are derived out of the fee simple, so that whenever a particular estate, or limited interest in land, vests in the person who has the fee simple in land, such particular estate or interest is immediately drowned or merged in it, upon the principle that omne majus' con-tinet in se minus. Where a sum of money is charged on real estate, which comes to the person entitled to the money in fee, the charge is merged.” 1 Lomax, Dig., 13. The same result follows where the right to money charged on the land comes to the owner in fee of the land. A quitclaim deed from mortgagee to mortgagor releases the debt. 1 Jones, Mortg. § 972. “The strict rule of law is that, when the ownership of the mortgage debt and title to the land become vested in the same person, the mortgage is thereby merged and extinguished.” “The union of title to property, and the ownership of a judgment which is a specific lien on the particular property, in the same person, will merge and extinguish the judgment.” 15 Am. & ling. Enc. Law, 321, 334. “When a greater and less estate meet in the same person, without intermediate
A question, then, arises whether, though there is no vendor’s lien, there is a debt arising from the bonds given by Mrs. Skiles creating a debt which a court of equity may charge on this land as Mrs. Skiles’ separate estate, as in the ordinary case of a married woman’s debt, on the principle that the lien and bond are distinct things, that though the lien be gone by release, the debt yet exists. Smith v. Railroad Co., 33 Grat., 621; 3 Pars. Cont., 99. But this would seem unreasonable, — to say that it was the intent of Apperson to release the land from the lien, and then turn around and hold this same land liable to the same debt, thus allowing the theory of the separate existence of the debt to overrule the intention of the parties.
Next, as to title of the purchaser. “The title of the purchaser, Tyree, having fallen with the reversal of the
Affirmed.