Johnson v. Wilson

77 Mo. 639

• Court: Supreme Court of Missouri
• Decided: April 15, 1883
• Status: Published

Opinion

Sherwood, J.

The sixteen acres of land conveyed to. plaintiff by Hepler, though subject to the former deeds of trust under which the sale took place, was not in equity subject to the last deed of trust, because the parties in interest had notice of the conveyance to plaintiff. He who takes with notice of an equity, takes subject thereto. The case stands before us then precisely as if the sixteen acres had not. been sold under the prior deeds of trust, and the defendants were attempting to enforce their subordinate equitable and legal rights against the prior and well known equities of the plaintiff. True, the sixteen acres of land have been converted into money, but this does not affect the question since equity will, on proper occasions, treat money as land, and vice versa. The petition concludes with a prayer for general relief. This will authorize any relief consistent with the facts alleged. If the sixteen acres of land had not been sold under the prior deeds of trust, it is quite clear that equity would not permit parties who took the third deed of trust with notice of plaintiff’s rights to sell his land under such third incumbrance. No more will equity, in the circumstances of this case, permit such parties with notice, to lay their hands on the proceeds of the sixteen acres. Hepler being both non-resident and insolvent, if plaintiff could not obtain re-imbursement out of the overplus, the $476, he would be remediless; and we think his priority to re-imbursement out of that sum as clear as his priority to the sixteen acres. Therefore judgment reversed and cause remanded.

All concur.