84 Mo. App. 462 | Mo. Ct. App. | 1900
The undisputed evidence introduced on the trial of this cause discloses substantially the following facts: On the twenty-eighth day of February, 1891, defendant Malcolm Hunter was the owner of two contiguous tracts of land in Wright county, Missouri, containing about 320 acres; the descriptions of these tracts being somewhat complicated, we will hereafter refer to them as “Tract A” and “Tract B” respectively. On February 28, 1891, Hunter executed a deed of trust conveying to Ragland, trustee, said Tract A to secure the payment of his note for $1,000, and interest, due January 1, payable to the Land Mortgage Investment and Agency Company of America, Limited; this note was, before the bringing of this suit, transferred to the plaintiff West Plains Bank for collection and is the note sued on herein.
On A.pril 17, 1894, said Hunter executed a deed of trust to Musick, trustee, on said tract B, to secure the payment of his note to R. Oox for $535.
On February 23, 1895, said Hunter conveyed both tract A and tract B by warranty deed to defendant W. II. Edwards for a recited consideration of $3,500; this deed contained the following clause, “subject to an incumbrance of one thousand ($1,000) dollars to the Southern Agency & Investment Company of Kansas City, Mo., also a deed of trust to Randolph Cox for $535, which said second party assumes and agrees to pay as part of the purchase money thereof.”
On April 17, 1895, Cox released his deed of trust on tract B.
On May 4, 1897, the deed of trust on tract A securing the note herein sued on was foreclosed at trustee’s sale made by the sheriff as substitute trustee and the real estate covered thereby purchased by O. R. Raney for $325 and a proper credit was given on said note for the money realized at said trustee’s sale; on May 14, 1897, said Raney conveyed said tract A to defendant P. E. Edwards, wife of W. H. Edwards. *
On June 28, 1897, defendants Edwards and wife conveyed to defendant J. D. Graves said tract B, subject to the $1,000 mortgage to Holmes and Gay.
On June 29, 1897, defendant P. E. Edwards and W. H. Edwards, her husband, conveyed to defendant Graves by warranty deed said tract A; this deed was acknowledged on the same day before the same officer and was filed for record at the same time as the deed last mentioned from Edwards and wife to Graves conveying said tract B. All these instruments were properly executed and acknowledged and were filed for record on about their respective dates and are duly recorded in the office of the recorder of deeds of Wright county, Missouri.
Chronologically the facts are as follows: February 28, 1891, trust deed, Hunter to Ragland, trustee on tract A securing the note herein sued on.
April 17, 1894, trust deed, Hunter to Musick, trustee, on tract B securing $535 note to Oox.
February 23, 1895, warranty deed, Hunter to W. H. Edwards, conveying tracts A and B, in which the grantee assumes as part of purchase price the two notes last -above mentioned.
May 4, 1897, foreclosure of trust deed on tract A to secure the note herein sued on, leaving the deficiency for which this suit is brought, amounting to $1,066; property bought by C. R. Raney: Trustee’s deed filed for record May 14, 1897.
May 14, 1897, quitclaim, Raney to P. E. Edwards, tract A.
June 28, 1897, warranty deed, Edwards to J. D. Graves tract B subject to the Holmes and Gay deed of trust of $1,000.
June 29, 1897, warranty deed, Edwards and wife to J. D. Graves tract A.
The evidence shows that the Southern Agency and Investment Company named in the deed from Hunter to Edwards as the party to whom the $1,000 incumbrance was owing was the collection agent of the Land Mortgage Investment & Agency Company of America, Limited, to whom the $1,000 incumbrance had in fact been made; that Hunter paid to the Southern Agency & Investment Company the interest on the $1,000 note and that both parties to this deed understood that by the assumption clause it was intended that Edwards should assume the $1,000 note sued on in this action.
The undisputed evidence of Hunter further shows that the sale to Edwards was of the whole farm embracing tract A and tract B for a solid price of $3,500; that Edward's reserved out of the purchase price a sufficient amount to pay the two notes assumed by him; that the sale, would not have been made without this arrangement for the payment of both notes.
Other witnesses testified that on tract B was the farm
Plaintiff, West Plains Bank, the holder of the note for $1,000 made by Hunter to the Land Mortgage Investment & Agency Company of America, Limited, secured by the trust deed to Eagland, trustee, on tract A, brought this suit to recover from Hunter, the maker thereof and from Edwards who assumed its payment, the balance owing on said $1,000 note and to enforce against tract B a vendor’s lien.
Plaintiff contends that this vendor’s lien extends to both tracts, while defendants contend that the recital in the deed from Hunter to Edwards, showing that this note was to be paid as part of the purchase price and that Edwards assumed the payment thereof, did not operate to extend the vendor’s lien over any more of the land conveyed than was originally covered by the trust deed given by Hunter on tract A securing this note.
The lower court rendered a personal judgment against Hunter and Edwards for the amount owing on the note but denied plaintiff’s right to enforce a vendor’s lien against tract B.