Ficklin v. Stephenson , 33 Mo. 341 ( 1863 )

Dryden, Judge,

delivered the opinion of the court.

As appears from the petition, Call and Clark, two of the defendants, sold to the plaintiffs, Ficklin and Ficklin, for the price of five thousand dollars, paid in hand, certain town lots in the town of Chillicothe, in this State, and by their obligation in writing bearing date the 24th of March, 1859, bound themselves to convey the property by a good and sufficient deed to the plaintiffs within twelve months thereafter. It also appears from the petition that the defendants Call & Clark afterwards, on the 10th of May, 1859, made a conveyance of the major part of the property they had sold to the plaintiffs, to their co-defendants, Stephenson & Maupin, to secure the payment of two notes of seventeen hundred and fifty dollars each which they owed to the latter. The petition charged notice to Stephenson & Maupin of the previous sale by Call & Clark to the plaintiffs, and asked for a conveyance of the title as against all of the defendants.

Stephenson & Maupin answered jointly, and for their defence said that in 1858, prior to the sale by Call & Clark to the plaintiffs, they sold the same property to Call & Clark for one thousand dollars cash and three thousand five hundred dollars on a credit of one and two years, and bound themselves by title bond to convey the same to their said co-defendants on payment of said notes; that the deferred payments remaining unpaid, these defendants, on the 10th day of May, 1859, made an absolute conveyance of the lots to Call Clark, and at the same time, and as part of the same transaction, Call & Clark made and delivered to these defendants the mortgage deed, referred to in the plaintiffs’ petition, to secure said deferred payments. The answer also avers that the plaintiffs, at the time-of their purchase, had notice of the condition of the title and of the nonpayment of the purchase money to these defendants; and also averred that at the time of the filing of the answer the greater part of their said demand still remained unpaid.

The plaintiffs moved to strike out the answer, because the matters therein were “ irrelevant, immaterial and insufficient,” and the motion was sustained by the court. Call & Clark likewise answered, and a part of their answer was also stricken out; but it will not be necessary further to notice the action of the court in that matter, as the question in the case will be disposed of in the consideration of the answer of the other defendants.

After striking out the one answer and pruning down the other, the court proceeded to try the case, and rendered judgment, divesting the defendants of their title, legal and equitable, and vesting the same in the plaintiffs, and the defendants appealed.

The motion to strike out was in the nature of a demurrer, and in its consideration the allegations of the answer must be taken as true; the question, therefore, for us, is as to whether the matters charged in the answer constitute a bar to the relief asked by the plaintiffs.

The plaintiffs purchased in subordination to the existing rights of Stephenson & Maupin. Whatever infirmity belonged to the title of Call & Clark at the time of their sale adhered to it in the hands of the plaintiffs. The plaintiffs could acquire no more or better title than their vendors had. It cannot be pretended that the plaintiffs were entitled to a conveyance of the legal title as against Stephenson & Maupin, so long as the latter sustained the relation of vendors to Call & Clark, and held the title as their security for the purchase money; but it is insisted that the conveyance of the legal title by Stephenson & Maupin, although simultaneously reconveyed by Call & Clark, having been made subsequent to the sale from Call & Clark to the plaintiffs, had the effect to discharge the property from the lien for the purchase money, and to make the mortgage a conveyance of the legal title subsequent and in subordination to the prior right of the plaintiffs. We do not concur in this view of the question. The doctrine that the taking of an express lien is a waiver of the implied lien of a vendor, relied on by the respondents’ counsel, has no application to the facts of this case. Stephenson & Maupin had more than the implied lien of a vendor ; they had the title. This they still have. The mutual conveyances between them and Call & Clark, being one and the same transaction, left the title precisely where it was before, unaffected by the instantaneous, transitory seizin of Call & Clark, just as if the two conveyances had been but one in fact and executed by all the parties to both. The transaction did not increase the burdens of the plaintiffs, nor did it in anywise diminish the rights of the defendants. The defendants Stephenson & Maupin having both the prior legal title and the elder equity, must prevail. The answer was a bar £o the action, and the court erred in striking it out, and •for this cause the judgment is reversed and the cause remanded.

The other judges concur.