Heim v. Vogel

Hough, J. This is an action of ejectment. The circuit court rendered judgment for plaintiff. Both parties claim title under one Eridolin Zweifel. In April, 1869, Zweifel contracted with one Dette for the erection of a building on the lot in controversy. During said month Dette began work .under said contract, and Oldenlage and Griesheim performed labor and furnished materials for said building under a contract with Dette. On the 15th day of June, 1869, Zweifel executed a deed of trust on the lot sued for, to secure a note for $10,000, payable to Michael Hammel, in five years, together with ten semi-annual interest notes for $500 each, which deed was recorded July 8th, 1869. Zweifel died September 5th, 1869, leaving a will by which the property in controversy was devised in fee to David Legler and Gotlieb May, who .were also named and acted as executors of said will. On February 28th, 1870, the executors, aforesaid, sold at public sale, under an order of the probate court of St. Louis county, the equity of redemption of Zweifel in the lot sued for, and Dette became the purchaser thereof, at the sum [534] of $1,550, and received a deed therefor dated March 1st, 1870. The building erected bj^ Dette was completed in December, 1869, and on March 17th, 1870, Oldenlage and Griesheim filed a lien for the labor performed and materials furnished by them, on which suit was brought against Dette and the executors on June 14th, 1870. On the 23rd day of June, 1871, Dette, for the recited consideration of $12,812.50, sold and conveyed to B. N. Sternberg, by warranty deed, the premises in controversy. This conveyance, which was a deed poll, contained the following clause: “ Subject, however, to a certain deed of trust to Michael Hammel’s trustee, dated June 15th, 1869, and recorded in the aforesaid recorder’s office in book 389, page 72, the payment of which is assumed by said party of the second part.” Judgment having been rendered in favor of Oldenlage and Griesheim in the suit on the mechanic’s lien on the 4th day of November, 1871, the property was sold un,der execution issued on said judgment, and Sternberg became the purchaser for the sum of $601.85, the amount of the debt and costs. On January 22nd, 1872, Sternberg gave a deed of trust on this property to secure the payment of a debt of $3,000 to the plaintiff, Heim, which deed recited that the property conveyed was the same which Stern-berg acquired of Dette “by deed dated June 23rd, 1871, and recorded in the recorder’s office of St. Louis county, Missouri, in book 425, page 483.” On July 16th, 1873, the deed of trust given June 15th, 1869, to Michael Hammel’s trustee, and referred to in the deed from Dette to Sternberg, was foreclosed by an execution of the power of sale, and at the sale thereunder, the defendant, Vogel, became the purchaser at and for the sum of $11,100. On November 30th, 1873, the deed of trust given by Sternberg to Heim, was foreclosed by an execution of the power of sale, and at the sale thereunder, the plaintiff, Heim, became the purchaser at and for the sum of $475. It will be seen, from the foregoing statement, that Sternberg became the owner of the property in dispute subject to two incumbrances; a [535] mechanic’s lien in favor of Oldenlage and Griesheim, and a deed of trust in favor of Michael Hammel. 1. mechanic’s lien: title under, when incumbrancers are not made parties- Conceding the mechanic’s lien to be the senior incumbrance, the purchase by Sternberg at the sale under said lien, did not invest him with an indefeasible ' . title. Section 9 of the statute m relation to mechanic’s liens, is as follows: “ In all suits under this chapter the parties to the contract shall, and all other persons interested in the matter in controversy, and in the property charged with the lien, may be made parties, but such as are not made parties shall not be bound by any such proceedings.” 2 Wag. Stat., § 9, p. 910. So that after the enforcement of the mechanic’s lien, and the purchase by Sternberg, the holder of the Hammel mortgage, or the purchaser at the sale thereunder, still had the right to redeem. Farwell v. Murphy, 2 Wis. 533; Goodman v. White, 26 Conn. 317; Olmstead v. Tarsney, ante, p. 396. This right could, of course, only be asserted by appealing to the equitable jurisdiction of the court; it is not relied on here, nor, indeed could it be in the present state of the pleadings, the answer of the defendant being a general denial only. •2. implied assumpTION OP DEBT BY accepting a deed sumption. The recital in the deed from Dette to Sternberg, however, that the property was conveyed subject to the deed of trust made to secure Hammel, and that „ the pay)» ent thereof was assumed by bternberg, is conclusive of the rights of the parties in this action. The effect of this recital was to make the debt due to Hammel, Sternberg’s own debt, and to render him personally liable therefor. Where land is conveyed subject to a mortgage, the grantee does not undertake or ■become bound by a mere acceptance of the deed to pay the mortgage debt; but if a grantee takes a deed containing a recital that the land is subject to a mortgage which the grantee assumes, or agrees to pay, a duty is imposed on him by the acceptance, and the law implies a promise to perform it, on which promise, in case of failure, assumpsit will lie. [536] Fiske v. Tolman, 5 Rep. 501; Pike v. Brown, 7 Cush. 133; Braman v. Dowse, 12 Cush. 227; Jewett v. Draper, 6 Allen 434; Furnas v. Durgin, 119 Mass. 500; Jones on Mortg., § 748; Crawford v. Edwards, 33 Mich. 354; Urquhart v. Brayton, 6 Rep. 601; Atlantic Dock Co. v. Leavitt, 54 N. Y. 38; Trotter v. Hughes, 2 Kern. 74; Belmont v. Coman, 22 N. Y. 438. 3ÁáuMEEjunior under senior^8158 After the purchase by Sternberg at the sale under execution, the property was, in his hands, as much bound by deed of trust to Hammel as if he had executed that deed. This being so, Heim’s deed of trust was, of course, subject to that of Hammel, and as Hammel*s deed was recorded, and Heim’s deed referred directly to the deed from Dette to Sternberg, which was also of record, Heim had notice that he was a junior incumbrancer, and that a purchaser at a sale under Hammel’s trust deed would take the legal title subject to such rights only as he might have in equity as a junior mortgagee. The judgment of the circuit court must, therefore, be reversed and the cause remanded. The other judges concur. Reversed.