Leeper v. Lyon

68 Mo. 216

• Court: Supreme Court of Missouri
• Decided: October 15, 1878
• Status: Published

Opinion

Hough, J.

1. equity pbacrICB'

This was a proceeding in equity, and as all the issues made by the pleadings were not submitted to the jury, the court should have proceeded, after their verdict was rendered on the issues Avhich were submitted to them, to try the remaining issues, and its action in adopting the finding of the jury and entering up judgment on tlie whole ease, without doing so, was erroneous.

2. vendor’s lien : necessary party to a, smt. t

When the administrator of a vendor of real estate, who has died without making a conveyance, brings suit for the purpose of enforcing a vendor’s lien for 1 r ° ,, , . ,, ,, the unpaid purchase money, the heirs ot the vendor should be made parties, and their presence cannot be dispensed with by tendering, either in the pleadings or at the trial, a deed from such heirs to the vendee, unless the vendee accept such deed. The mere tender of the deed cannot have the effect of investing the vendee with the legal title. In order to decree the sale of real property in a proceeding to enforce a vendor’s lien, the holders of the legal title must be made parties. Perry v. Roberts, 23 Mo. 221; Siemers v. Bleeburg, 56 Mo. 196; Story’s Eq. Plds., (7 Ed.) §§ 160, 172 a. The judgment of the circuit court will be reversed and the cause remanded.

All the judges concur.

Reversed.