84 Mo. 298 | Mo. | 1884
This suit was instituted in the circuit court of Clark county to enforce a vendor’s lien against certain land in said county, described in the petition. Plaintiff had judgment as prayed for in the petition from which the defendants have appealed.
The case made on the trial is as follows: William Bailey, Sr., who resided in the state of Iowa, was the owner of the land described in the petition; on the twenty-seventh day of November, 1876, he leased the same to his son, William Bailey, Jr., for the period of ten years from the first day of March, 1877. It also appears that defendant, Gr. R. Crow, who was also a resident of the state of Io wa, with full knowledge of the existence of said lease, entered into.negotiations with said Bailey,
At the time of the execution of this deed, and as part thereof, the following written agreement was made
“ String Prairie, Lee Countv, Ia., ) “November 27, 1876. j
“ That on the 14th day of February, 1877, William Bailey, senior, conveyed said land to appellant, Ann W. Crow, by a deed of general warranty, and that, as a part of said' deed, appellants entered into the following agreement : c Know all men by these presents, that, whereas, William Bailey and wife have this day executed to the-undersigned Ann W. Crow their warranty to one hundred and nineteen acres of land in Clark county, Missouri ; now it is expressly understood, as a part of said deed of conveyance, that a full warranty is given in said deed at the request of grantee ; whereas, said grantors, it is expressly agreed, shall not be responsible upon their said warranty for any claim, right, title, or interest of one William Bailey, junior, of, in, and to said real estate, by virtue of a certain contract or pretended contract, dated twenty-seventh day of November, 1876, anti entered into by and between William Bailey, junior, and William Bailey, grantor in said deed. It is further-agreed, as a part of said conveyance, that the undersigned Greorge R. Crow and Ann W. Crow will hold and keep said William Bailey, senior, grantor in said deed, harmless on account of the execution of said deed, and on account of any claim for damages or otherwise of said William Bailey, junior, against said William Bailey, senior, on account of a breach of said contract. It is further understood that said Gí-eorge R. Crow and his wife will employ counsel and defend any suit, and pay*302 all costs and expenses thereof, by said William Bailey, junior, against said William Bailey, senior, on account of said contract or any breach thereof, and will pay any judgment and costs recovered thereon against said William Bailey, senior. It is further agreed that should said William Bailey, junior, institute any suit against said George R. Crow or wife, on account of said land or the possession thereof, or on account of any breach of said contract, then the said William Bailey, senior, will on request transfer to said Crow or wife any and all claims, rights, and damages which he the said William Bailey, senior, has against said William Bailey, junior, at the date of this instrument, so that said Crow or wife may use them as a set-off or cross-claim or counter-claim in such suit.’
“Witness our hands February 14, 1877.
“ William Bailey, Sr., '
“ George R. Crow,
“ Ann W. Crow.”
The evidence tended to show that Crow had the conveyance made to his wife to put the property beyond the reach of his creditors; that he was in failing circumstances at the time, and thereafter became insolvent. There was evidence tending satisfactorily to establish that the consideration of $1,000 was about half the value of the land, and that in consideration of this sum, and the agreement of defendants, above recited, to indemnify Bailey, Sr., against all claims that Bailey, Jr., might have against him, growing out of the lease, and pay all expenses incurred by him in defending against such claims, the deed to the land in question was made. It further appears that Bailey, Jr., sued Bailey, Sr., on the lease in August, 1878, and thereafter recovered judgment for $400 damages and $177.30 costs, which the defendants did not pay, but which plaintiff did pay, and also the further sum of one hundred and twenty dollars, attorney’s fee. And it is these sums, aggregating $697.30 so paid which plaintiff seeks to enforce as a lien upon the land
It further appeared that Crow was fully notified of the pendency of said suit of Bailey, Jr., against Bailey, Sr., was present at the trial and participated therein, reading the deed made by Bailey, and the contract entered into at the same time and as a part of the deed together, and we cannot resist the conclusion that the agreement to save Bailey, Sr., harmless, and pay all damages, costs and expenses, growing oht of any suit brought against him by Bailey, Jr., on said lease, constituted a part of the consideration for the deed. The lease in question was an incrimbrance on the land, of which Crow was fully informed, and, being such, the agreement of Crow to save Bailey harmless and pay all damages growing out of it, may be held to be as much a part of the purchase price, as if the land had been encumbered by Bailed, Sr., with a mortgage to secure a debt, which Crow assumed to pay either in the deed of conveyance or by an agreement in writing, made simultaneously with and as a part of the transaction. The defendants are before the court in the light of the evidence without a shadow of equity, and plaintiff is clearly entitled, notwithstanding the fact that title was put in the wife, to the relief prayed for.
In the case of Davenport v. Murray, 68 Mo. 198, when the purchase of land was made by the husband, and the land was conveyed to the wife at his request, and when the wife joined the husband in a note for the purchase price, it was held that parol evidence was admissible to show that the purchase and conveyance were so made, and that the vendor was entitled to have his lien enforced against the land so conveyed. See, also, case of Pratt v. Eaton et al., 65 Mo. 157. In the case of Davenport v. Murray, supra, it is said that if the deed in
Judgment affirmed.
