Walker v. Goodsill

Ellison, J.

— Plaintiff bought and had assigned to him a judgment against defendant for a sum amounting to near $2,000. He had an execution issued on this judgment; whereupon defendant filed his motion to set aside and recall said execution. The motion was sustained and plaintiff has brought the case here.

It is sufficient, for an understanding of the case as concerns the vital question .presented, to say that *634 defendant was largely indebted to plaintiff and several other persons in sums of various amounts. That he had secured plaintiff by giving him a second mortgage on his real estate and a first mortgage on a lot of personal property. Among defendant’s debts was the judgment on which the execution in question was issued. This judgment was subsequent to all the mortgages referred to. As the result of some “parleying” and conversations between plaintiff and defendant, the defendant made him a warranty deed to the lands-(which were in two counties) covered by the mortgages ; those in one county being covered by the lien of this judgment. This deed recited that it was made “subject to prior mortgages, liens, taxes and judgments.”

Plaintiff purchased this judgment some time after accepting the deed just referred to; He was probably moved to purchase it by reason of his inability to make a clear title to the lands, which he was selling from time to time. It may be stated from the record with a degree of certainty, that the lands so deeded to plaintiff are not sufficient to pay the amount of his mortgage,, and the debts secured by the other mortgages. Excluding the amount represented by plaintiff’s mortgage, the lands will satisfy the other incumbrances, including this judgment. The question is, what is the legal effect" of the transaction between plaintiff and defendant?

It is quite clear that plaintiff did not take upon himself a personal obligation tp pay the prior incumbrances mentioned in the deed by accepting it with the words above quoted incorporated therein. Purchasing land “subject to” incumbrances without further words showing an intention to create a personal obligation will not have the effect to make a personal charge-against the .vendee. Hall v. Morgan, 79 Mo. 47 ; *635 Lawrence v. Towle, 59 N. H. 28. A deed with such words of qualification amounts to a sale of the vendor’s interest as affected by the incumbrances mentioned. And when those incumbrances are prior conveyances such as mortgages, such deed does no more than convey the vendor’s equity of redemption. And the lands conveyed remain the primary fund out of which the incumbrances should be paid. The debts secured by the incumbrances are a charge upon the lands. 1 Jones Mort. sec. 736; Hancock v. Fleming, 103 Ind. 533 ; Manwaring v. Powell, 40 Mich. 371 . In other words, the lands in the hands of the vendee remain a fund out of which (as between the vendor and vendee) the incumbrances should be discharged or liquidated in the order in which their priorities may he. This plaintiff then, as vendee, not having assumed any personal obligation as to this judgment, stands in relation to it as a stranger would, except in so far as it may be affected by its being a charge primarily upon the lands he has purchased. If therefore the lands, at a fair valuation, or sale, are exhausted in discharging the incumbrances which stand prior or ahead of the judgment, defendant, as the judgment debtor, must answer personally. And, as before stated, he can be made to answer to this plaintiff, his vendee, the same as if plaintiff jWere a third party, since plaintiff has assumed no personal relation to it and the primary fund for its payment proves insufficient.

It is true that plaintiff, holding a mortgage on these lands, took a deed of conveyance, but such deed was made in recognition of his mortgage, the interest and situation of the parties clearly indicating that there was no intention to let subsequent liens in ahead of plaintiff’s mortgage. When such is the case a merger will not take place. 2 Devlin’s Deeds, see. 1051; 1 Jones Mortgages, secs. 355, 856, 857, 869. Even though *636 for some reason there may have been a satisfaction of the mortgage entered. Ib. 869. It is however one of the facts appearing in this case that plaintiff not only entered of record satisfaction of this ' mortgage, but delivered to defendant the notes he held against him. This is not conclusive as to the discharge or annihilation of the mortgage itself. It was necessary to sell the lands and the release of the mortgage was for the plaintiff’s benefit to remove an apparent cloud on his title. The release does not overcome the evident intention of the parties as disclosed by the whole transaction, together with the evident vital interest to plaintiff to preserve the integrity of the mortgage as such. The debt represented in the mortgage was satisfied as to this defendant, £<But it by no means follows that in all instances of discharge of the debtor the mortgage dies.” Bartlett v. Eddy, 49 Mo. App. 41 , and authorities cited. Also 1 Jones Mortg. 869; Bowen v. Kurtz, 37 Iowa 239 .

The face of the whole case shows that there was no intention to permit the subsequent judgment in controversy- to become a prior lien. In the view we have taken of the case, the authorities cited by defendant are not considered applicable.

The result is that the judgment should be reversed and the cause remanded.

All concur.