83 Mo. 35 | Mo. | 1884
This is an action to enforce a vendor’s • lien on lots 1 and 2 of the northeast quarter of section 5,
The petition in this case was filed on the 14th day of September, 1880. It sets out the facts of the administration resulting in the sale of said lands to Carnahan and the report thereof to the probate court and its approval of the sale and the order touching the making of the deed, and its acknowledgment as aforesaid; but charges that Carnahan, in fact, did not pay all the purchase money, and that the said sum of $176.14 was the balance of purchase
The answer admits the proceedings in administration, the sale of the land thereunder to Carnahan, the report of sale and its approval, etc., and the mesne conveyances, but denies generally the other allegations of the petition. It then sets up the facts touching the purchase of said land by Carnahan from the heirs of Embree prior to the proceedings by the administrator for the sale of the land, and that Carnahan took possession under his purchase from the heirs. It, also, pleads the statute of ten years’ limitations against the action of plaintiff and adverse possession, etc.
The replication tendered the general issue' to the new matter set out in the answer. Outside of such notice as the records impart, it is not apparent that any of the purchasers under whom the defendant, Baile, claims title, or that she had any notice of the fact that any of the purchase money in question was unpaid by Carnahan at the time of their respective purchases. There was some evidence that the plaintiff stated to One Ridings — one of the intermediate purchasers of the land — that the purchase money was not all paid, but this seems to have been subsequent to the date of Ridings’ purchase. The defendant, Baile, testified denying any notice whatever of the existence of the debt or lien, and there was no countervailing proof. The plaintiff claims, however, that she had notice before she paid all the purchase money, but she testified that her son had paid the purchase money for
I. It is important in the consideration of this case to bear in mind that Carnahan, under whom the defendant, Baile, claims title, received a deed to the disputed premises from the heirs of Embree with covenants of title under the statute, prior to the sale under the administration proceedings.' By this deed Carnahan, in addition to the fee of the heirs, acquired the dower interest of Embree’s widow. Also, that Carnahan conveyed, with a like covenant of title, to other parties, through whom the defendant, Baile, claims prior to such proceeding by the administrator. It may be conceded for the purposes of this case that the landed estate of Embree was subject to sale by his administrator for debts of the estate and that no antecedent act or deed of the heirs, other than the widow, could defeat this liability for such debts. Wolf v. Robinson 20 Mo. 460; Chambers' Adm'r v. Wright's Heirs, 40 Mo. 482. It may be further conceded that had a stranger to the former grants become the purchaser at the administration sale he would have acquired-the paramount right. But when Carnahan himself became the purchaser, subsequent to his warranty deed, any legal title and estate so acquired by him enured to the benefit of his grantee by virtue of the statutory covenants of his former deed. Such covenants would operate as an estoppel against him and his heirs and privies to any subsequently acquired equitable estate therein. It was competent for the defendant, Baile, under her answer, to introduce in evidence the deed of the heirs of Embree to Carnahan and the latter’s deed to Carnahan and Sharp. Both titles originated in Embree and there was no inconsistency in the fact of defendant holding the deed from the heirs and the subsequent proceedings by the administrator. If the holding of the land by defendant’s grantors began under the deed from the heirs it was certainly competent for defendant to
It is not the case of a defendant, as in the action of ejectment, asserting title under a common grantor or one deed, while attempting to set up an outstanding title. The real estate of the intestate descended to his heirs. The administrator took no interest therein but a mere naked power to' sell for the payment of debts. Chambers’ Adm’r v. Wright’s Heirs, supra. Both the right of possession and title were in the heirs when Carnahan bought from them, and this fight passed to his grantees by Ms deed of January 12, 1867. It is true they took cum onere, subject to sale by the administrator for the debts of the intestate and the right of entry by the purchaser thereunder. And we may, also, concede that Zoll, the administrator, was entitled to a vendor’s lien as against the purchaser and those having hotice for any unpaid purchase money. But a vendor’s lien is a relative rather than an absolute right. It is ever qualified by the condition that it shall not operate against bona fide purchasers without notice, and that the vendor shall not sleep too long upon his right.
II. A cause of action for the enforcement of the vendor’s lien accrued to Mr. Zoll as early as July, 1867, as shown by Ms petition. Yet this action was not instituted until the 14th day of September, 1880 — a delay of thirteen years. This lien, resting on evidence in pais, belongs to that class of implied trusts to which the statute of limitation applies. Keeton’s Heirs v. Keeton’s Adm’r, 20 Mo. 530; Smith v. Ricords, 52 Mo. 581. This being an action in rem to enforce a lien on real estate, the plaintiff had ten years in which to bring his suit, unless precluded by some countervailing equity. Hunter v. Hunter, 50 Mo. 445 ; Rogers v. Brown, 61 Mo. 1876. Unless, therefore, there be something disclosed by this record to explain and excuse in law this delay, this action is barred by lapse of time.
III. The plaintiff relies upon two facts to exempt
Even if this provision applied to the proceeding in rem, the proof should show two facts: First, that at the time the causé of action accrued the debtor was a resident of this state, and, second, that thereafter he departed from and resided out of the state. The only evidence touching this issue is that of the plaintiff, who testified that “Carnahan left the state sometime during the fall of 1867, and went to Illinois and took up his residence, where he has ever since resided.” It is not directly affirmed that he ever resided in this state. The fact of such residence can only be inferred from the language, he “left the state.” This could well consist with the
There are respectable authorities holding that the limitation prescribed in the foregoing statute does not apply to a proceeding in rem, but only to actions in personam. Anderson v. Baxter, 4 Oregon 105; Eubanks v. Leveridge, 4 Sawyer 274. Contra, Whalley v. Eldridgey 24 Minn. 358; Emory v. Keighan, 94 Ill. 543. In Smith v. Ricord, 52 Mo. 581-583, Adams, J., in delivering the opinion seems to have entertained the' view that the-absence from the state did not interrupt the running of the statute. But it is not essential to the determination of this case finally that we should pass upon this question..
IY. There is another principle of law well settled, applicable both to the alleged absence from the state and subsequent promise to pay by Carnahan, which effectually meets the contention of plaintiff. The statute of limita-, tions began to run in favor of those 'purchasing from Carnahan, in July, 1867, and unless interrupted by some act of theirs would continue to run. It is a familiar principle of law that an assignor or grantor can do no act nórmate any admission subsequent to the assignment or grant to impeach or impress the title of his assignee or grantee any more than the act or admission of a mere-stranger. Steward v. Thomas, 35 Mo. 202; Gutzweiler's Adm'r v. Lockmann, 39 Mo. 91; Weinrich v. Porter, 47 Mo. 293; 1 Greenl. Ev., § 180; The Keystone Manf. Co. v. Johnson, 50 Io. 142; Campbell v. Coon, 51 Ind. 76; Funkhouser v. Lay, 78 Mo. 458; McShane v. City of Moberly, 79 Mo. 43. If Carnahan, after he had parted with whatever interest and estate he acquired from Zoll, could by removal from the state, or part payment, or promise to pay, stop the running of the statute of limitations in favor of' his grantee, he might perpetuate indefinitely the lien against the land in the hands of his vendee without his-.
This question was considered in California, in Lord v. Morris, 18 Cal. 482. Field, C. J., p. 490, said: “The mortgageor, after disposing of the premises by deed of sale, loses all control over them. His personal liability thereby becomes separated from the ownership of the land, and he can by no subsequent act create or revive charges upon the premises. He is as to the premises thenceforth a mere stranger. * * . He cannot at his pleasure affect the interests of other parties.” In Wood v. Goodfellow, 43 Cal. 185, it is again held that as against ■subsequent incumbrances, or a subsequent holder of the equity of redemption, the mortgageor has no power to stipulate to prolong the time of payment or in any manner increase the 'burdens of or affect the premises.
This question came before the supreme court of Kansas in Schmucker v. Sibert, 18 Kan. 104. Brewer, J., p. 111., says: “If, therefore, the mortgageor no longer owns the property, he cannot impose a burden upon it — bis power to bind the property has ceased. He is as powerless over it as though he had never owned it. He can revive the note, as he can give a new note, for no rights but his own are involved. He can revive the old mortgage just so far, and so far only, as he could give a new mortgage, and that is to bind his own property.” This doctrine is likewise asserted by the supreme court of Iowa in Day v. Baldwin, 34 Iowa, 380.
There is another ground upon which I am of opinion the plaintiff’s action should fail, and this is his laches. But the foregoing is sufficient to determine this controversy. The judgment of-the circuit couut should therefore be affirmed.