Lumley v. Robinson

Napton, Judge, delivered the opinion of the court. The mode of enforcing the equitable mortgage of a vendor’s lien upon the land sold is a subject which has several times been considered by this court. (McNair and others v. O’Fallon and others, 8 Mo. 188; Broadwell & Dyer v. Yantis, 10 Mo. 378; Calmes v. Talbot and others, decided in 1849 and not published.) It is not denied that under our statute the interest of the vendee is saleable under execution, but where the execution [368] under which the sale is made is upon a judgment obtained by the vendor in a suit for the purchase money or a portion of it, the effect of such a sale has been always attended with difficulties. Where the purchaser is a stranger, the embarrassment is increased ; for, where the plaintiff in the execution buys himself, we should feel no hesitation in saying that his purchase has not advanced him a particle, and that he stands just where he did before the sale. He has not extinguished the mortgage, and a court of equity would still convey the title to the vendee upon his paying up the purchase money. Where the purchaser at a sale of this charter is a stranger, it may happen that other notes than the one sued on are still due, and these notes may be in the hands of the vendor, or they may have been previously assigned to third persons. In either event the subject is attended with confusion. A more embarrassing case than either would be where only a very small proportion of the purchase money is due, as was the case in Calmes v. Talbot and others (heretofore referred to), and in this way the title of the mortgagee or vendee be transferred to the purchaser at the execution sale for a mere song. Chancellor Kent alludes to these difficulties in Tice v. Annin, 2 John. Ch. 127, and seems to entertain no doubt that a court of equity would compel the vendor or mortgagee to assign over to the vendee or mortgagor the bonds and mortgage, so that he may compel the purchaser of equity to refund him the debt out of the land charged. For instance, if a tract of land is sold for five thousand dollars and the purchase money is all paid but five hundred dollars, and the vendor sues upon the note for five hundred dollars and gets judgment and levies execution on the land, the purchaser, by bidding five hundred dollars, extinguishes the debt and gets the legal and equitable title. It is plain, however, that if matters remain in this condition, the original vendee has lost his four thousand five hundred dollars and the land too, and it would be equitable, according to the doctrine of Ch. Kent, to compel the vendor to assign over [369] the equitable mortgage, which his lien on the land created, to the vendee, in order that he might get from the purchaser of the land the amount paid to the original vendor. This, of course, must proceed upon the hypothesis that the purchaser is buying not the mortgagor’s equity only, but the mortgagee’s legal title, or rather it is hard to say what he was buying. The amount is, that a court of chancery will so treat the whole transaction as ultimately to attain the same equitable results to all the parties concerned as would have been the effect of a bill of foreclosure. (See Crafts v. Aspinwall, 2 Comst. 291.) The effect of purchases by third persons, other than the vendor, is -not material to be considered or decided here, nor is it probable that the question will ever be important, for the reason that such cases will not occur. All the cases which have ever been up in this court, have been cases of purchases by the plaintiff in the execution. Strangers will not buy at such sales, because they do not know what they are buying. In Pennsylvania the subject is disposed of in a very plain and equitable manner. The sale under an execution in cases of this kind is regarded as a sale of the whole title, both of' the vendor and vendee. The vendor, by putting up the land for sale under his own execution, to enforce the collection of the purchase money, is understood as offering his own title as well as that of the vendee, and the purchaser bids as in other cases for the land unencumbered, and the purchase money goes to extinguish the vendor’s lien first, and the remainder goes to the vendee or judgment debtor, or to other execution creditors, where there are any. (Horbach v. Riley, 7 Ban. 81; Davy v. Lowe, 5 Watts, 412.) If we could adopt this doctrine and practice here, all embarrassment on the subject would cease and sacrifices of property be avoided; but such has not been the understanding of the law and such has not been the understanding of bidders at such sales. The statute law and practice under it on execution sales in Penn [370] sylvania differ from ours, and tlie intervention of tlie legislature would be necessary to introduce sucb a rule here. This bill contains no equity; it'contains no offer to comply with the contract and pay up the purchase money due. In relation to the sale of the tract of land originally owned by Lumley, there is nothing in the petition to show that a court of equity would interfere. Whether the sale of this tract was so connected with the previous sale as to make it a part of the same transaction and entitled to share the same fate, is a matter about which not enough is disclosed in this bill to enable us to form any opinion. It will be time enough to consider these questions when the party copies into court with an offer to do what is equitable himself. This is the essential basis of all such demands for relief. The other judges concurring, judgment affirmed.