Nulsen v. Wishon , 68 Mo. 383 ( 1878 )

Henry, J.

None of the parties acquired a legal title to the lot in controversy, until the executor of the last will of B. Wishon executed a deed conveying the same to defendant E. M. Wishon. The equity of Bodd, Brown & Co., was acquired after the deed of trust to Seay, as was also that of E. M. Wishon, which he obtained under the deed -from Creu sb.au er.

The equity of plaintiff is to be preferred to that of Bodd, Brown & Co., because prior in point of time, whether Bodd, Brown & Co. had notice of plaintiff’s equity or not. It is also to be preferred to that of Wishon, if he had notice of the prior equitable claim of the plaintiffs, whether the law be as insisted by appellants or not, that he is to be regarded as a purchaser for. a valuable .consideration, a pre-existing debt. We do not deem it necessary to determine that question. It was charged by plaintiffs that Wishon was aware of their equitable right to the property when he purchased the lot of Creusbauer. There was evidence tending strongly to establish that allegation. We cannot say that the preponderance of evidence on that issue was not in favor of the plaintiffs. The court might well have based its decree on that ground, conceding the law to be as understood by appellant’s attorney. All that the court decreed was a reformation of the deed of trust in the description of the property, and vesting the legal title acquired by Wishon, the defendant, under the deed from B. Wishon’s executor, in Seay, the trustee in the trust deed, executed for tbe benefit of his co-plaintiffs There was no conflict of evidence in regard to the intention of Creusbauer to convey by that deed to Seay the lot in controversy. The testimony of plaintiff Mersman, and of the defendant Creusbauer, fully proved that intention.

All concurring,

the judgment is affirmed.

Affirmed.