54 Mo. App. 631 | Mo. Ct. App. | 1893
— Plaintiff bought and had assigned to him a judgment against defendant for a sum amounting to near $2,000. He had an execution issued on this judgment; whereupon defendant filed his motion to set aside and recall said execution. The motion was sustained and plaintiff has brought the case here.
It is sufficient, for an understanding of the case as concerns the vital question .presented, to say that
Plaintiff purchased this judgment some time after accepting the deed just referred to; He was probably moved to purchase it by reason of his inability to make a clear title to the lands, which he was selling from time to time. It may be stated from the record with a degree of certainty, that the lands so deeded to plaintiff are not sufficient to pay the amount of his mortgage,, and the debts secured by the other mortgages. Excluding the amount represented by plaintiff’s mortgage, the lands will satisfy the other incumbrances, including this judgment. The question is, what is the legal effect" of the transaction between plaintiff and defendant?
It is quite clear that plaintiff did not take upon himself a personal obligation tp pay the prior incumbrances mentioned in the deed by accepting it with the words above quoted incorporated therein. Purchasing land “subject to” incumbrances without further words showing an intention to create a personal obligation will not have the effect to make a personal charge-against the .vendee. Hall v. Morgan, 79 Mo. 47;
It is true that plaintiff, holding a mortgage on these lands, took a deed of conveyance, but such deed was made in recognition of his mortgage, the interest and situation of the parties clearly indicating that there was no intention to let subsequent liens in ahead of plaintiff’s mortgage. When such is the case a merger will not take place. 2 Devlin’s Deeds, see. 1051; 1 Jones Mortgages, secs. 355, 856, 857, 869. Even though
The face of the whole case shows that there was no intention to permit the subsequent judgment in controversy- to become a prior lien. In the view we have taken of the case, the authorities cited by defendant are not considered applicable.
The result is that the judgment should be reversed and the cause remanded.