Ingram v. Tompkins

¶1delivered the opinion of the court.

¶2This was a bill in chancery, filed by the complainants, Hathaway and Ingram, against the defendants, to obtain contribution under the following circumstances. Such of the facts only will be stated as are necessary to present the questions involved in the case.

¶3Charles H. Smith owned a considerable real estate, consisting mostly of lots in the town of Boonville, in Cooper county. This estate was subject to the lien of several judgments, rendered against Mm, in the years 1842 and ’3, for a considerable amount. On the Tth of February, 1844, Smith executed to the complainants a title bond, by which, upon the payment of $3200, he promised to convey to them, by deed, with a general warranty, lot 156 and part of lot 157, being a portion of the property above mentioned. This title bond was not recorded until the 23d day of November, 1844. The purchase money was payable in equal instalments, which were severally due 9th November, 1844, July 9th, 1845, and 9th March, 1846, and bore ten per cent, interest. On the 15th March, 1845, Smith, by a deed with general warranty, reciting that the consideration of $3200 had been paid and secured to be paid, conveyed the lots above described to the complainants. This deed was recorded 12th April, 1845. The remainder of Smith’s real estate consisted of eleven parcels, which, for the sake of convenience, were numbered numerically.

¶4*406On the 14th day of February, 1844, Geo. Brown, in the St. Louis Circuit Court, recovered judgment against Smith, as garnishee, for the sum of $4794 38. On the-day of September, 1844, an execution on this judgment was placed in the hands of the sheriff of Cooper county, which was levied on five of the eleven parcels of ground above mentioned, on the 24th October following. By virtue of a venditioni exponas, this property was sold on the 11th day of March, 1845, at which saleH. R. Gamble became the purchaser of parcels one, two, five, for the sum of $1351, in trust for his clients, who were the benficiary owners of the judgment on which the execution issued. W. Adams, parcel number three, for $171; and parcel number four was sold to G. W. Morton, for the sum of $225. On the 2d March, 1845, by deeds, with general warranty, reciting the payment of the consideration money, which was $3.200, the complainants conveyed to two different purchasers the lots they had bought from Smith.

¶5From the view taken of this case, it is not deemed necessary to state the facts in relation to the matter of Jos. Tompkins.

¶6Afterwards, Benjamin Tompkins, acting as trustee for one who was interested in Smith’s estate, purchased the judgments against Smith, which were mentioned in the commencement of this statement, on which executions were issued, which were levied on the remainder of Smith’s estate, being parcels numbered six, seven, eight, nine, ten and eleven, and also on the lots conveyed by Smith to the complainants ; and on the 18th September, 1845, the said parcels were sold, and not being sufficient to satisfy the executions, the lots purchased by the complainants were sold for about $1500, of which the sum of $1400 was applied to their satisfaction, and the residue paid to the complainants, they being the purchasers of the lots conveyed to them by Smith. The judgments, under which the last mentioned executions issued, as has been before said, were liens upon all of Smith’s real estate in Cooper county, and all his estate, but that last sold, had been exhausted by Brown’s execution.

¶7*407Under this state of facts, the complainants maintained, that they were entitled to contribution from the purchasers at the sale made under Brown’s execution, as the real estate sold at that sale was subject to the liens of the judgments under which the lots they had purchased from Smith were disposed of.

¶8On a hearing, there was a decree dismissing the bill, from which this appeal is taken.

¶9The opinion I hazard in this case is my own, and it will be prefaced with the remark, that it is based upon the principle asserted in many opinions of this courJ^^^si^Ss^^^irered. That principle is, that the lien of a,j creditor on real estate, is preferred ta debtor who holds by an unrecorded, writing.

¶101. It does not appear, from any thi% the purchase money was ever paid by the con^affi^feéíí^fhe lots which they purchased of Smith. From the dam of the deed and the recital therein contained, the most favorable construction that can be put upon the transaction is, that only one of the instalments was paid, as the deed was executed before the others were due, and it is recited that the purchase money was “paid and secured to be paid.” The charge in the bill.that the purchase money was paid, is no evidence of the fact, although uncontradicted by the answer, it being a rule in equity that, if the answer omits to deny a fact charged in the bill, it is no admission of the fact. The plaintiff may object to the answer for insufficiency in this respect, as he may for insufficiency as to any other fact charged. But, if he takes no exception and the cause goes to a hearing on the general replication, it is a waiver of the exception and the plaintiff must prove his case. Gamble v. Johnson, 9 Mo. Rep. 625.

¶112. I am utterly at a loss to conceive on what legal or equitable ground the complainants claim a foothold in a court of justice. They have bought land for which, at most, they have only paid one-third of the purchase money. For what do they *408claim contribution ? Is it in respect to the purchase made from Smith or to that which they made at the sheriff’s sale ? How are they injured ? They cannot be made to pay for land the title to which has failed. If they lose the first instalment, then, by their management, they will hare obtained the lots for nearly one-third less than they agreed to pay for'them. If, by reason of the sale of the lots, Smith has been prevented from collecting the purchase money, then he is the injured person, and the suit should have been brought in his name and for his benefit. Had he succeeded in such a suit, the only decree that would have been made, would be one allowing an additional credit on Brown’s execution, (for the greater portion of it is yet unsatisfied,) and as Smith is utterly insolvent and a suit againsthim would have resulted in such a decree, if was deemed most expedient, it may be supposed, to institute the action in the manner it has been, as the relief, in the other form, would have been only nominal. The complainants should have placed the motives of their conduct above all suspicion. If they relied on the title obtained from Smith, they should have paid the balance on the execution and prevented a sale of their property. They would not then be in the situation in which they have voluntarily placed themselves, where they could make a profit or not according to the result of chances. They have suffered their property to be sold and got a title superior to and older than that obtained from Smith, and that might have been purchased for a nominal sum, in which event they would have obtained property worth upwards of $3000, for literally nothing. If their hazard has not resulted as favorably as was anticipated, can they -now ask relief from a court of justice ?

¶12If even Smith had received his purchase money, then the complainants cannot have relief, because their title bond was unrecorded at the time that the execution of Brown came to the hands of the sheriff. Their title was at the mercy of that execution; it was void as to that writ, and they cannot now come in and claim contribution after a sale has taken place under it. To hold that, would be to maintain that a title which *409was void as to an execution, may, after that execution bas been executed, place itself upon an equality with tbe title acquired under tbe execution. After tbe levy of Brown’s execution, bad tbe remainder of Smith’s property, including tbe lots sold to tbe complainants, been also levied upon by executions on tbe elder judgments, and bad tbe sales taken place on tbe same day, if, after tbe last levy, all except complainants’ lots bad been exhausted, could they then have come in for contribution against Brown’s execution ? That execution might have extinguished tbe title of tbe complainants, and, because it was spared, shall it now come in and claim an equality with it, and thereby diminish that fund for its satisfaction which might have been swelled by its own extinction ?

¶13Had tbe complainants’ title paper been recorded, they having paid tbe purchase money, tbe question which is sought to be made in this case might have arisen. That question is an important one, and, situated as tbe court is, in regard to this case, I do not wish to express any opinion in relation to it. In my view, it is a new one, and is not affected, as I conceive, by any thing contained in tbe cases of Prewitt v. Jewell, 9 Mo. Rep. and McNair’s heirs v. Mullanphy’s heirs, 8 Mo. Rep. Decree affirmed.