Price v. Reed

Smith, P. J. —

Prom the judgment of the circuit court in this case both the plaintiff and the defendant have prosecuted separate appeals to this court.

To the opinion, delivered in that branch of the case in which defendant appealed, is prefixed rather an extended statement of the nature of the whole case which doubtless will be found sufficient to a correct understanding of the principles which have been applied in disposing of these appeals. The plaintiff by his appeal assails the decree staying and restraining the issue of execution upon the judgment until he execute and file with the clerk of said court a bond to indemnify the defendant against any loss or damage that shall occur to him, defendant, by reason of the breach of the covenants of warranty in the deed from Walker conveying to him said land, on the ground that it is not authorized by the pleadings and evidence. We are of the opinion that the deed of trust from Walker to plaintiff, notwithstanding the misdescription of the land therein, was in equity a lien on the said land for the debt therein mentioned as against the defendant, who, it appears from the evidence, had notice when he purchased the same of Walker. Boone on Mortg., sec. 133; Martin v. Nixon, 92 Mo. 34; Fegart v. Halderman, 75 Ind. 564. No defense could have been made by defendant to a suit to correct and foreclose the deed of trust which had the force of a mortgage. The defense in such an action could only have been to a personal judgment for the deficiency. Benedict v. Hurt, 32 Iowa, 30. The land was a primary fund for the payment of the mortgage debt. Hartly v. Harrison, 24 N. Y. 171; Calvo v. Davis, 73 N. Y. 215; Weber v. Zeimet, 30 Wis. 283; 3 Pomeroy Eq., secs. 1255-1206. The defendant by his sale of the mortgaged land to Mrs. Steele, an innocent purchaser, deprived the plaintiff of his security. The effect of the decree forces the plaintiff into an unmerited predicament. To the extent of .his judgment against defendant he is forced into the shoes of the defendant’s insolvent covenanter, Walker. He is practically made liable to the defendant on the covenants of Walker in the event the title to the land shall fail The decree makes it possible for the plaintiff to lose his debt, which was secured "by a mortgage on said land, which he could have enforced, and no doubt would have done so, had it not been for the action of defendant in making the sale to Mrs. Steele.

Under these circumstances we think it would be highly inequitable to grant the relief which has been afforded him by the decree, whatever may be the condition of the title. Crawford v. Edwards, 33 Mich. 362; Eller v. Hoache, 67 Wis. 654.

The other questions discussed by counsel in their briefs we think in the view we have taken of the case need not be noticed.

It results, therefore, that the decree' of the circuit court, of Audrain county, restraining and staying the issue of execution on the judgment, of the plaintiff against defendant for the amount of the said assumed debt until plain tiff execute the bond of indemnity mentioned in said decree must be reversed, which is ordered accordingly.

All concur.