'Woods, Judge :
The counsel engaged on the trial ot this cause have not suggested either in the pleadings or argument that any question of law arises in this controversy, and the only questions involved are questions ot fact. The suggestion made in the answer of the administrator of Reeves, that the plaintiff purchased the land subject to the incumbrance of $800.00, then existing thereon, is not only wholly unsupported by the evidence, but the attending circumstances show clearly that such was not the fact. It was never pretended that $1,500.00 was not the full value of the land, and there is no question about the truth of the facts, that at the time the down-payment was made, Reeves paid to Rutherford $292.26, aud that he afterwards transferred to him the plaintiff’s first'note of $225.00, the amount of which $244.12 he collected May 10, 1882, both of which were applied as credits upon the said trust-debt. It clearly appears from the pleadings and proofs that the price of the land was $1,500.00, that on September 11, 1880, when the deed was made and the $1,050.00 paid, the incumbrance amounted to $826.90 and no more; that on that day Reeves paid the administrator of Richard Rutherford $292.26 on account of that debt, and that on May 10, 1882, the proceeds of the plaintiff’s first note ot $225.00, amounting to $247.50 was also applied on said debt, and that the unpaid residue thereof on May 10,1882, was only $841.42, with interest from date: and the plaintiff’s last note then and still unpaid amounted to the like sum of $247.50, which if also applied to the said trust-debt, there would remain unsatisfied of that incumbrance only the sum of $98.96 as of date, for which the estate of Reeves would be primarily responsible to the estate of Richard Rutherford, deceased, and in case the plaintiff should be compelled to pay the same, then the estate of Reeves would be responsible to him lor the same amount. In the determination of this case it is wholly immaterial to the plaintiff, whether there was or was not . any agreement made between the plaintiff and Reeves and Rutherford, that said trust-lien should be released before the two deferred payments of his purchase-money should be paid. This land was actually purchased, articles of agreement entered into on September 1, 1880, and the execution of the [713]*713deed and the payment oí the money and execution ot the notes were acts done in pursuance of said articles. Independently of any agreement to do so, it was the duty of the vendor to extinguish and have said trust-lien released, and the plaintiff had the right to insist that his purchase-money should be applied to the satisfaction of said lien. Of this right he seemed to be well informed, before he paid any of his money, for in his answer he distinctly avers “ that at or about the time he made the down-payment, it was positively and distinctly agreed between himself, Beeves and Rutherford, trustee and administrator of Richard Rutherford, that a complete relinquishment of the interest under the trust-deed should be secured to the plaintiff, before the residue of the purchase-money, viz: $450.00 should be paid.” He had then, and he still has, the right to retain the unpaid purchase-money and to insist upon having it applied towards the satisfaction of any balance still remaining unsatisfied upon the trust-debt. It is true that the plaintiff pretends that in order to induce him to pay the $1,050.00, Rutherford, as the administrator of R. Rutherford, agreed to release the whole debt, and that the trust-debt was to be wholly satisfied out of this down-payment, but this improbable and unreasonable pretension is inconsistent with the alleged agreement that the trust was to be extinguished before'the $450.00 were paid, the last half of which would not become due until February 1, 1883, while the trust-debt itself would not become due until January 29,1882. Rutherford’s debt was not due, it bound not only the 108 acres sold to the plaintiff, but also another tract _ of land particularly described in the deed of trust, of which no notice whatever seems to have been taken in these proceedings, and for aught that appears, that tract of land may be much more than sufficient to indemnify the plaintiff against any possible loss he might sustain by the failure of Reeves in his lifetime to provide for the balance of said trust-debt. A feeble effort was made to prove by the plaintiff’s son that the $1,050.00 was in fact paid over to Rutherford by Reeves as soon as he received the money, but it is evident that his statement is entitled to very little weight, for in answer to a question to state what conversation took place at the time the deed was made, the $1,050.00 paid, he said “ Papa and I went to [714]*714Reeves’s to get the deed and pay for the land $1,050.00. Papa asked Mr. Reeves about the mortgage, and Mr. Rutherford said he would release the land. Mr. Rutherford agreed to release the deed of trust before the $1,050.00 was paid.” In answer to the question, — “ State whether or not the money paid by J. R. Douglass was paid to Reeves; and if so, did Reeves pay it over to any one in your presence ?” ho said, “ Tie paid it to Reeves, and Reeves gave.it to Mr. Rutherford, and Mr. Rutherford counted it and said it was right. Rutherford still had it in his possession when I left, about twenty minutes after the money was paid.” Upon cross-examination he was asked by Rutherford : “ How was the money in my possession ?” to which he answered, “ It was lying on the table by Mr. Rutherford.” Being further asked, “ How did Reeves give me the money, was he paying it to me, or did he just hand it to meto count?” to which he answered, “ I suppose he was paying it to you on the mortgage.” “What was the amount of the mortgage ?” Answer. “ I don’t know.” “ Was there anything said as to what the money was to be applied to?” Answer. “There was not to my recollection.” The deposition of the plaintiff himself proves that he paid the $1,050.00 to Reeves, and he without counting it, paid the money' over the table to Rutherford, who counted it and said it was all right. The deposition' of Rutherford was taken, and it fully sustains his answer. He tells how much money he received, to whom, and upon what debts due from Reeves it was applied, giving names and sums and character of debts, all of which could have been contradicted if in any manner incorrect. He expressly denies that he made any agreement to release the lien until it was paid. He filed as evidence the copy of the decree in the case of A. Rutherford v. The Administrator and Heirs of Reeves, settling his estate, ascertaining the amount, character and priority of all the debts due from Reeves at his death, which on October 15, 1888, amounted to $2,199.03, and ascertained that the personal assets belonging to said estate applicable to the payment of these, which would come into the hands of his administrator, amounted on the same day to $1,254.47, which the administrator was directed to collect and pay7 the same ratably on the several debts, included in said aggregate of $2,199.03, and then directs the [715]*715sale oi 188 acres of land owned by Reeves at the time of his death, and the proceeds thereof to be applied first to pay a preferred debt of $660.70 to said A. Rutherford, included in said aggregate, and the balance ratably upon all the other debts. Among the debts so ascertained and provided for is one of $399.50 to Richard Rutherford, deceased, shown by the testimony of the administrator of Reeves, to be the balance remaining unpaid on said trust-debt on October 15, 1883.
Free access — add to your briefcase to read the full text and ask questions with AI
'Woods, Judge :
The counsel engaged on the trial ot this cause have not suggested either in the pleadings or argument that any question of law arises in this controversy, and the only questions involved are questions ot fact. The suggestion made in the answer of the administrator of Reeves, that the plaintiff purchased the land subject to the incumbrance of $800.00, then existing thereon, is not only wholly unsupported by the evidence, but the attending circumstances show clearly that such was not the fact. It was never pretended that $1,500.00 was not the full value of the land, and there is no question about the truth of the facts, that at the time the down-payment was made, Reeves paid to Rutherford $292.26, aud that he afterwards transferred to him the plaintiff’s first'note of $225.00, the amount of which $244.12 he collected May 10, 1882, both of which were applied as credits upon the said trust-debt. It clearly appears from the pleadings and proofs that the price of the land was $1,500.00, that on September 11, 1880, when the deed was made and the $1,050.00 paid, the incumbrance amounted to $826.90 and no more; that on that day Reeves paid the administrator of Richard Rutherford $292.26 on account of that debt, and that on May 10, 1882, the proceeds of the plaintiff’s first note ot $225.00, amounting to $247.50 was also applied on said debt, and that the unpaid residue thereof on May 10,1882, was only $841.42, with interest from date: and the plaintiff’s last note then and still unpaid amounted to the like sum of $247.50, which if also applied to the said trust-debt, there would remain unsatisfied of that incumbrance only the sum of $98.96 as of date, for which the estate of Reeves would be primarily responsible to the estate of Richard Rutherford, deceased, and in case the plaintiff should be compelled to pay the same, then the estate of Reeves would be responsible to him lor the same amount. In the determination of this case it is wholly immaterial to the plaintiff, whether there was or was not . any agreement made between the plaintiff and Reeves and Rutherford, that said trust-lien should be released before the two deferred payments of his purchase-money should be paid. This land was actually purchased, articles of agreement entered into on September 1, 1880, and the execution of the [713]*713deed and the payment oí the money and execution ot the notes were acts done in pursuance of said articles. Independently of any agreement to do so, it was the duty of the vendor to extinguish and have said trust-lien released, and the plaintiff had the right to insist that his purchase-money should be applied to the satisfaction of said lien. Of this right he seemed to be well informed, before he paid any of his money, for in his answer he distinctly avers “ that at or about the time he made the down-payment, it was positively and distinctly agreed between himself, Beeves and Rutherford, trustee and administrator of Richard Rutherford, that a complete relinquishment of the interest under the trust-deed should be secured to the plaintiff, before the residue of the purchase-money, viz: $450.00 should be paid.” He had then, and he still has, the right to retain the unpaid purchase-money and to insist upon having it applied towards the satisfaction of any balance still remaining unsatisfied upon the trust-debt. It is true that the plaintiff pretends that in order to induce him to pay the $1,050.00, Rutherford, as the administrator of R. Rutherford, agreed to release the whole debt, and that the trust-debt was to be wholly satisfied out of this down-payment, but this improbable and unreasonable pretension is inconsistent with the alleged agreement that the trust was to be extinguished before'the $450.00 were paid, the last half of which would not become due until February 1, 1883, while the trust-debt itself would not become due until January 29,1882. Rutherford’s debt was not due, it bound not only the 108 acres sold to the plaintiff, but also another tract _ of land particularly described in the deed of trust, of which no notice whatever seems to have been taken in these proceedings, and for aught that appears, that tract of land may be much more than sufficient to indemnify the plaintiff against any possible loss he might sustain by the failure of Reeves in his lifetime to provide for the balance of said trust-debt. A feeble effort was made to prove by the plaintiff’s son that the $1,050.00 was in fact paid over to Rutherford by Reeves as soon as he received the money, but it is evident that his statement is entitled to very little weight, for in answer to a question to state what conversation took place at the time the deed was made, the $1,050.00 paid, he said “ Papa and I went to [714]*714Reeves’s to get the deed and pay for the land $1,050.00. Papa asked Mr. Reeves about the mortgage, and Mr. Rutherford said he would release the land. Mr. Rutherford agreed to release the deed of trust before the $1,050.00 was paid.” In answer to the question, — “ State whether or not the money paid by J. R. Douglass was paid to Reeves; and if so, did Reeves pay it over to any one in your presence ?” ho said, “ Tie paid it to Reeves, and Reeves gave.it to Mr. Rutherford, and Mr. Rutherford counted it and said it was right. Rutherford still had it in his possession when I left, about twenty minutes after the money was paid.” Upon cross-examination he was asked by Rutherford : “ How was the money in my possession ?” to which he answered, “ It was lying on the table by Mr. Rutherford.” Being further asked, “ How did Reeves give me the money, was he paying it to me, or did he just hand it to meto count?” to which he answered, “ I suppose he was paying it to you on the mortgage.” “What was the amount of the mortgage ?” Answer. “ I don’t know.” “ Was there anything said as to what the money was to be applied to?” Answer. “There was not to my recollection.” The deposition of the plaintiff himself proves that he paid the $1,050.00 to Reeves, and he without counting it, paid the money' over the table to Rutherford, who counted it and said it was all right. The deposition' of Rutherford was taken, and it fully sustains his answer. He tells how much money he received, to whom, and upon what debts due from Reeves it was applied, giving names and sums and character of debts, all of which could have been contradicted if in any manner incorrect. He expressly denies that he made any agreement to release the lien until it was paid. He filed as evidence the copy of the decree in the case of A. Rutherford v. The Administrator and Heirs of Reeves, settling his estate, ascertaining the amount, character and priority of all the debts due from Reeves at his death, which on October 15, 1888, amounted to $2,199.03, and ascertained that the personal assets belonging to said estate applicable to the payment of these, which would come into the hands of his administrator, amounted on the same day to $1,254.47, which the administrator was directed to collect and pay7 the same ratably on the several debts, included in said aggregate of $2,199.03, and then directs the [715]*715sale oi 188 acres of land owned by Reeves at the time of his death, and the proceeds thereof to be applied first to pay a preferred debt of $660.70 to said A. Rutherford, included in said aggregate, and the balance ratably upon all the other debts. Among the debts so ascertained and provided for is one of $399.50 to Richard Rutherford, deceased, shown by the testimony of the administrator of Reeves, to be the balance remaining unpaid on said trust-debt on October 15, 1883. Excluding from the $1,254.47 of personal assets which will come into the hands of the administrator of Reeves for the payment of said debts, the sum of $266.76, the amount oi the plaintiffs last purchase money-note of $225.00 and interest thereon to October 15, 1883, which was doubtless included in said sum of $1,254.47, there will still remain to be distributed ratably upon the said debts the sum of $987.71, which will pay about forty-five per cent, upon each of said debts, and upon $399.50 the balance of said trust-debt the sum of $179.42, without taking into consideration the residue of the proceeds of the sale of the 188 acres of laud, which will remain after the payment of the preferred debt of A. Rutherford of $660.70.
From what has been said it is evident that the funds to be realized from the estate of Reeves, when added to the amount still due from the plaintiff will be more than sufficient to discharge the balance of said trust debt. While the plaintiff is entitled to be fully indemnified against this trust-lion on his lands, it must be borne in mind that the defendant Rutherford, has taken no steps whatever to enforce this demand against the plaintiffs land, nor does the plaintiff allege that he has done or attempted to do so, nor that he is in any degree responsible for the act of the administrator of Reeves, in bringing suit for the recovery of said last installment of $225.00 of purchase-money. On the contrary Rutherford has prosecuted to final decree his suit against the administrator and heirs to said Reeves, and has therefore provided and secured for the plaintiff from his estate more than enough to save him from all possible loss. Before the plaintiffs suit can be finally heard the court should by its commissioners ascertain the exact amount of said trust-debt still unsatisfied, whether any, and if any, what portion of this unpaid balance [716]*716bas been or will be realized out of the estate of said Reeves, and if deemed necessary for the plaintiff’s indemnity, how much of said trust-debt is properly chargeable on the tract of land specified in said trust-deed described therein, as being the tract conveyed by IT. Ii. Douglass, trustee, to T. H. Reeves by deed dated August 13, 1878, recorded in Ritchie county in deed book No. 20, pages 97 and 98, and whether the whole or any part of the last instalment of purchase-money still due from the plaintiff to said Reeves, will be required to satisfy said trust-debt, and having ascertained these facts, the circuit court shall credit said trust-debt with the sum of $292.26 as of the date of September 11,1880, $247.47 as of the date of May 10, 1882, then with the amount that may be •realized by Rutherford from the estate of Reeves, when received, and then with so much of said last instalment of $226.00 still due from the plaintiff as may be required, and lastly if the same be necessary for the purpose, with so much of said trust-debt as may be properly chargeable upon, and realized from that other parcel of land mentioned in said deed of trust, until the plainüff be fully indemnified; when the injunction heretofore awarded must, as to so much of said last instalment as shall be applied to said trust-lien be made perpetual, and as to the residue thereof dissolved.
The decree of the circuit court of Ritchie county rendered in this cause on March 1, 1884 must be reversed with costs against the appellee J. R. Douglass, and remanded to the said circuit court for further proceedings therein to be had, according to the principles settled in this opinion and according to the rules and principles governing courts of equity.
Reversed. RemaNded.