Parkey v. Veatch

68 Mo. App. 67, 1896 Mo. App. LEXIS 491

• Court: Missouri Court of Appeals
• Decided: December 14, 1896
• Status: Published

Opinions

Ellison, J.

This case comes here on the sufficiency of the petition to state a cause of action against defendant. The defendant demurred thereto and his demurrer being sustained, the plaintiff appealed.

The petition states that plaintiff and his wife executed and. delivered to N. J. Winters their promissory note secured by a deed of trust on three hundred and twenty acres of land. That afterward the defendant recovered judgment against plaintiff for $276.74, under which judgment he had two hundred acres of said land sold at sheriff’s sale, he, the defendant, becoming the purchaser thereof. That afterward defendant recovered in ejectment of this plaintiff the possession of said two hundred acres. That afterward defendant purchased the note and deed of trust aforesaid and has caused to be advertised for sale under the deed of trust the one hundred and twenty acres of land described therein, “and that on the twelfth day of March, 1895, the defendant intends to and will sell the said one hundred and twenty acres of said land, of which plaintiff is the owner.” That plaintiff “tendered to defendant the sum of $130.40, being the amount of the debt then due and secured by the one hundred and twenty acres aforesaid, and being the one hundred and twenty three hundred and twentieths of the entire debt then due.” That all of the land was of the same value acfe_, for acre; that the one hundred and twenty acres was worth one hundred and twenty three hundred and twentieths of the whole three hundred and twenty acres, and no more. The petition then asked that the note and deed of trust be cancelled and that if the defendant proceeded to sell the said one hundred and twenty acres, that plaintiff be permitted to redeem the same by paying said sum of $130.40.

The allegations of the petition are, in short, that defendant bought at sheriff’s sale the plaintiff’s equity of redemption in two hundred acres of the land and went into possession. That he then purchased the deed of trust which covered the whole three hundred and twenty acres and that he is now undertaking to close the deed of trust on the one hundred and twenty acres for the whole debt; and that plaintiff, proceeding on the theory that each tract is liable only for. its proportion of the debt, has tendered the amount which is proportionally due on the one hundred and twenty acres still owned by plaintiff.

mortgages: orde^o/ihibfi'.tyIn our opinion, the petition states a cause of action. The law is that if several tracts of land are subject to a mortgage and the mortgagor sells each of them at different times, they are liable for the whole debt in the inverse order of their sale. This rule is based on the idea that each successive grantee took the land as his grantor (mortgagor) had it, that is, as the tract or tracts last in the hands of the mortgagor was liable for the whole debt, so the tract- conveyed last would be liable in the hands of the grantee for the whole amount, and if all of the debt could not be realized from it, thence on back through each conveyance.

And so it is the law that if two tracts of land are subject, to a mortgage and the mortgagor conveys one of them by general warranty deed and retains the other, the one retained by him can be held primarily for the whole debt. Hall v. Morgan, 79 Mo. 47.

“IZiTTiTchase one^effcc^on But the petition does not state a case within these principles. The petition states that this defendant bought one of the tracts at sheriff ’s sale on an execution against the plaintiff mortgagor. He therefore only purchased the equity of redemption, and his sheriff’s deed was only a conveyance of the equity of redemption. He only paid for the equity of redemption. The transaction is clearly distinguishable from a purchase and payment for the full title and receiving a warranty deed. Carpenter v. Koons, 20 Pa. St. 222. If a person may purchase an equity of redemption in one of two mortgaged tracts and then buy the mortgage and compel the mortgagor to pay it to him and discharge it, the purchaser becomes possessed of the full unincumbered title to the land, when he has only paid (perhaps a trifling sum) for an equity of redemption. Thus, suppose one hundred and sixty acres of land subject to a mortgage of $4,000, and a party purchases the equity of redemption in eighty acres for $5,' and then purchases the mortgage of the mortgagee and compels the mortgagor to pay the full amount thereof. The mortgage is satisfied and he has full title to the eighty acres at the price of $5. It is clear that this should not be allowed. Yet this is the effect of defendant’s position on the demurrer.

_._. ' He purchased the equity of redemption at sheriff’s sale in two hundred acres of the tract. He then purchased the mortgage and seeks to collect the full,amount thereof by a sale of the remaining one-hundred and twenty acres in the hands of the mortgagor. If he does so, he will become the owner of the unincumbered title to the two hundred acres at the price he paid for the equity of redemption therein. This he can not do. When he purchased the equity of redemption, he took the land subject to its proportion of the mortgage debt and the land became a primary fund for the payment of its proportion of that debt.

We discover by the briefs that there is a difference between the statements of the respective counsel, but we, of course, on a demurrer, must look only to the petition. It follows that the judgment should be reversed and cause remanded.

All concur.