Wilcox v. Walker

94 Mo. 88 | Mo. | 1887

Brace, J.

This causé is before us on appeal from the judgment of the Macon circuit court sustaining a demurrer to the plaintiff’s petition, the allegations of which are substantially as follows: “ That in January, 1875, one Yale- was- in possession of the real estate described in the petition under a purchase by written contract with the- Hannibal & St. Joe Railroad Company^, that, on the thirteenth of January, 1875, he sold his interest in said real estate to one Needham for five hundred dollars, the latter assuming the payment of the-unpaid purchase money due ■ the railroad company on the contract, and executing a deed of trust on said land to secure the payment of the notes given by him to Yale for said sum of five hundred dollars ; that said deed of trust was duly recorded on the twentieth day of January, 1875; that, on the eleventh of January, 1881, Needham borrowed two hundred dollars of defendant, Demeter, for which he gave 1ns note, and to secure the payment thereof executed a deed of trust of that date on said land to defendant, Walker, as trustee for said Demeter, which deed of trust was thereafter duly recorded; that, in February, 1881, the said Needham, having fully paid off the unpaid purchase money due the railroad company for said land, received a deed therefor from said company; that, on the third day of March, 1883, the notes given by Needham to Tale, together with the interest thereon, remaining unpaid, the land, in pursu.ance of the terms of said first deed of trust, was sold by the trustee therein, and plaintiff became the purchaser •thereof at the trustee’s sale, and received the trustee’s deed therefor, went into possession thereof, made valuable improvements thereon, and is now the owner of ' said real estate ; that said Demeter' declares that the money loaned by him to Needham and secured by said ■second deed of trust was used by Needham in part in paying the unpaid purchase money due the railroad company for said land, and that the sale of said property to plaintiff was and is subject to the said Demeter’s deed of trust, and that the said Demeter has ■directed the said defendant, Walker, trustee as aforesaid, to advertise and sell, and said Walker has accordingly advertised said real estate under said Demeter ■deed of trust for sale, and will, unless restrained by the court, proceed to sell said real estate and cause the same pto be bid off by one Webb M. Ruby, with whom the defendants have an arrangement to that effect, and who thereafter will litigate with plaintiff about the title to .said real estate to his great annoyance and inconvenience ; wherefore plaintiff prays for an order restraining such sale, that the rights and claims of the parties may be determined, and that the injunction be made perpetual on final hearing,” etc.

It appears from the allegations of the petition that the plaintiff is in possession of the real estate of which lie claims to be the owner; that the legal title under which he claims is of record; that that title is superior to any that can be acquired by a purchaser at the sale which he seeks to have enjoined ; that such purchaser by .such sale can acquire no other or higher title, or •equitable or legal right, than that which is already vested in the defendants under the second deed of trust, and that tlie plaintiff has' a complete and adequate remedy at law against any claims that may be asserted by such purchaser in the courts by virtue of any title he may acquire at such salé,- and which he must take with notice of plaintiff’s record title;.that plaintiff will be deprived of no defence or advantage which he now possesses for defending his title and possession against any claim that may or can be made under the second deed of trust by such sale. In- short, the petition fails to show any ground for the interposition of' a court of equity and the demurrer was properly sustained.

The judgment of the circuit court is, therefore; affirmed.

All concur, except Ray, ¿L, absent.