Hockaday v. Lawther , 1885 Mo. App. LEXIS 154 ( 1885 )

Opinion by

Hall, J.

Without referring in detail to the many questions raised and discussed by the parties, in this case, we shall confine ourselves to a brief statement of our views of the law applicable to the facts herein.

From the making of the title bond in 1835 to the execution of the absolute deed in 1857,1. O. Hockaday had a lien upon the lots in suit for the balance of the purchase money. This lien was a lien fixed and declared by the contract of sale to Ansel. It rested upon an express trust created by such contract. — Jones on Mortgages, .vol. 1, sects. 225 et seq. and cases cited. From the execution of the absolute deed in 1857 to Ansel, I. O. Hockaday hadan equitable lien upon said lots for the balance of the purchase money then due, evidenced by the note then executed, not fixed or declared by the contract of the parties ; but, regardless of any agreement between the parties, implied by law; not resting upon an express trust, but in the nature of an implied trust. — Jones on Mortgages, vol. 1, sects. 189 et seq. and cases cited; Pratt v. Clark et al., 57 Mo. 191; Orrick v. Durham, 79 Mo. 177. This lien, properly speaking, was not merged in the judgment of 1865, but by it was for the first time established and fixed a charge upon the said lots.

That judgment was binding upon all the parties to it, including this plaintiff and Lawther, waiving the question as to whether the judgment was valid so far as the money part of it in personam as to Ansel is concerned, since his representative is not in this court. It is clear, as to Lawther it is a judgment in rem, declaring and fixing a lien as a charge upon the said lots, and as to him is not a money judgment, or a judgment in personam.

To that decree no lien attached such as belongs to judgments generally by virtue of the statute, but only such lien as the decree itself fixed, established, and ordered to be enforced. In no sense, and in no degree therefore can sections 2730, 2731, 2732, 2733, 2734, 2735, 2736, 2737 and 2738 of the Revised Statutes have any application to, or touch, or affect that decree. At any time within ten years subsequent to its rendition, an execution could have been issued upon the decree. — Sect. 2739 of the Revised Statutes. After the expiration of ten years from its rendition no execution could have been so issued. — Sect. 2739, supra; George v. Middaugh, 62 Mo. 551.

This action is clearly an action at law founded upon judgment or decree of 1865, and at no time could this action have been maintained on that decree. Such an action as this can not be maintained ‘ ‘ upon the decree of a court of equity for the performance of acts other than the payment of money.” — Warren v. McCarthy, 25 Ill. 95; Evans v. Tatem, 9 S. & R. 252; Post v. Neatie, 3 Gaines 28; Pennington v. Gibson, 16 How. (U. S.) 65; Freeman on Judgments, sect. 434.

In view of the facts of this cause,that the vendor’s lien in question became a charge, fixed upon those lots Only by the judgment of 1865 ; that Lawther in 1867 foreclosed his mortgage and bought in thereunder as he had perfect right to do, and thereupon entered into the possession of said lots, claiming title thereto as such purchaser, and has ever since continued to hold the same adversely and openly; that the plaintiff in said judgment did not within ten years after the rendition thereof have issued any execution thereunder, and that he did not take any steps from 1865 to 1880, the date of the institution of this suit, to enforce said judgment; and that the said judgment as to this defendant is not in personam ; we hold that upon every principle of law and justice this action cannot be maintained.

With the concurrence of the other judges it is therefore ordered that the judgment of the circuit court be reversed,

and the petition be dismissed.