Cedar County v. Williams , 79 Mo. 581 ( 1883 )

Ewing, C.

Cedar county sold certain swamp lands to one Musgrove, who gave his bond and security for the purchase money, as required by law. Afterward, with the consent of the county, Musgrove sold a part of it to the respondent, Williams, for $421, who executed his bond to the county for that amount with approved security for the payment of the purchase money of the land he bought, which was accepted by the county and credit to that amount entered on Musgrove’s bond. The other respondents, Abbott and Johnson, bought the same land at execution sale against Williams. This bond not being paid, the county commenced suit on it to recover the purchase money, and alleged that it was executed for the purchase money of the land (describing it); that the deed to Musgrove showed on its. face that the land was sold on credit and that he had executed his bond for the purchase money; setting up the substitution of Williams’ bond for so much of Musgrove’s bond, and asking that the land be sold to pay it, etc. The defendant Johnson answered denying the plaintiff’s allegations. Abbott answered that he was the owner of the land in fee; that he bought without any notice of any lien claimed by plaintiff. There wms judgment- by default against Williams; trial and judgment for the defendants Abbott and Johnson, and the county is here by appeal.

The question for consideration is: Did the plaintiff have a vendor’s lien for the purchase money, under the law; and if so, then was that lien lost or waived by any act of the plaintiff or by operation of law ?

There seems to have been some irregularity at least m the manner of sale. The law required the swamp lands to be sold or offered for sale at specified times and place at public vendue ; (Local Acts 1855, p. 350, § 2;) whereas it seems to have been at private sale, so far as the record shows. Then the law required the clerk to make a deed when the purchase money should be fully paid; (Ib., p. 351, § 12;) whereas it was made by Horton as commissioner. And there was a variance in the manner of sale in some other respects. But however that may be, the defendants are in no condition to question the validity of the sale, because they claim under Musgrove, and if he had no title they had none.

Section 11 of the Local Acts 1855, page 350, reserves a lien to the county for the purchase money, which the county has no right or power to relinquish. Answer to the Governor, 37 Mo. 129; Lewis v. Chapman, 59 Mo. 371. By the act authorizing the sale, (§ 11, supra,) a statutory lien for the purchase money is reserved; and if the county could not directly relinquish such lien, was it lost or waived by anything subsequent to the sale? The act authorized a sale by the county on credit. There could be no lien for the purchase money unless the sale was on credit. Section 12, page 351, Local Acts 1855, contemplates a sale on credit. Section 6, Revised Code 1855, page 1406, contemplates and provides for sales on credit; which section is made applicable to swamp land sales by section 1, page 349, Local Acts 1855. The deed of Horton, county commissioner, to Mus-grove, shows that Musgrove executed his bond for the payment of the purchase money, and an examination thereof by Abbott and Johnson-would have shown them enough to put them upon inquiry. Inquiry would have shown them that this bond was credited by $421, and the county took Williams’ bond, and held that against the land they bought from Williams. Hence, they cannot claim to be purchasers for value without notice. These deeds were immediately in the line of their title, which could not be examined without disclosing the fact that the land was swamp land purchased from the county ; that the county by law had a lien for the purchase money ; that it had not been paid, but was still shown by the records to be due. Linville v. Savage, 58 Mo. 248; Scott v. McCullock, 13 Mo. 13; Digman v. McCollum, 47 Mo. 372; Speck v. Riggin, 40 Mo. 405; Adams v. Cowherd, 30 Mo. 458; Orrick v. Durham, ante, p. 174. The circuit court should have found for the plaintiff and entered judgment subjecting the land to sale by special fi. fa. for the payment of the purchase money and interest as required by law. For failing to do so tlie judgment below is reversed and the cause remanded, with direction to enter judgment in accordance with this opinion.

Philips, C., concurs; Martin, C., absent.