Opinion
April 16, 1942. Rehearing Denied, June 3, 1942.
1. TENANCY IN COMMON: Trusts: Foreclosure: Purchase by Wife of Co-tenant. Due to the confidential relation existing between tenants in common, if one co-tenant purchases an outstanding title or incumbrance he will ordinarily be deemed to have made the purchase for the benefit of all the co-tenants. But there is an exception where property is sold at public auction under a valid lien and the sale is not procured by action of the co-tenant who purchases. And the same exception applies where the mortgagee purchased at the foreclosure sale, and then transferred his rights to the wife of a co-tenant, the trustee's deed being made direct to such wife, there having been no collusion between the co-tenant and the mortgagee.
2. VENDOR AND PURCHASER: Vendor's Lien Barred by Foreclosure of Prior Lien. If plaintiff's deceased husband had a vendor's lien for the unpaid purchase price of an undivided four-fifths interest conveyed to defendant, it was destroyed by the foreclosure of a prior mortgage.
3. TENANCY IN COMMON: Vendor and Purchaser: No Equity in Co-tenant to Revive Vendor's Lien. Defendant assumed part of a mortgage debt as consideration for the purchase of an undivided interest. His co-tenant, who was unable to pay his share of the mortgage debt, has no equity to assert a vendor's lien because defendant did not pay the mortgage debt and defendant's wife purchased from the mortgagee who was the purchaser at the foreclosure sale.
4. PARTNERSHIP: Accounting: Not Barred by Laches. Plaintiff is entitled to an accounting for the profits of her deceased husband's partnership in the operation of a farm up to the time that the partnership was terminated by a foreclosure sale of the realty, and to an accounting for the personal property not covered by the foreclosure sale. In view of the weakened mental and physical condition of plaintiff's deceased husband, the delay of five years did not constitute laches.
Appeal from Pemiscot Circuit Court. — Hon. Louis H. Schult, Judge.
REVERSED AND REMANDED ( with directions).
Von Mayes and N.C. Hawkins for appellant.
(1) Plaintiff-appellant, holding letters of no administration upon the estate of her deceased husband, C.E. Bragg, was and is entitled to sue for and collect from defendants, whatever was due from them to said estate, and also whatever was due her, in her own right, for dower or otherwise, as the widow of C.E. Bragg. This was held on the former appeal and is the law on this appeal. Bragg v. Ross, 139 S.W.2d 491. (2) When the granting of the specific relief prayed for is not deemed the most appropriate courts of equity, under a prayer for general relief, have gone so far as to award a money judgment for damages, in lieu of other relief or equitable relief. 21 C.J., p. 679, sec. 858 B; Holland v. Anderson, 38 Mo. 58; McQuitty v. Steckdaub, 190 S.W. 570; McLure v. Bank of Com., 252 Mo. 510, 160 S.W. 1005; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Nodaway County v. Alumbaugh, 153 S.W.2d 74 (6). (3) Mr. Bragg and plaintiff had a vendors' lien on the four-fifths interests, for the amounts he agreed but failed to pay. Tomlinson v. Givens, 144 Mo. 15; Mollett v. Beckman, 78 S.W.2d 886; Causer v. Wilmoth, 142 S.W.2d 777; Sec. 3448, R.S. 1939. (4) In 1930, prior to the foreclosure, February 3, 1932, Mr. Bragg became a paralytic and from and after that time he was physically and mentally infirm, and for this reason acquiescence, estoppel or laches should not be applied to him. Tokas v. Workmen's Com., 346 Mo. 100, 139 S.W.2d 978, 984. (5) Defendants are not injured, prejudiced or put to any disadvantage. Therefore, laches, estoppel, etc., do not apply. Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; Battels v. Stalling, 346 Mo. 450, 142 S.W.2d 9; Collins v. Lindsay, 25 S.W.2d l.c. 89. (6) Laches must have some natural justice back of it, must be affirmatively and properly pleaded, and must be clearly and satisfactorily established, that is, it must be shown that it is necessary to apply laches to prevent an unjust result and to obtain justice. Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 655; Bickel v. Argyle, 343 Mo. 456, 121 S.W.2d 803; State ex rel. Breit v. Shain, 342 Mo. 1148, 119 S.W.2d 758; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Grafeman Dairy Co. v. Bank, 315 Mo. 849, 288 S.W. 466; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Needham v. Caldwell, 154 S.W.2d 535 (7); Hamilton v. Northeast Mut. Ins. Co., 116 S.W.2d 159; Nat'l Match Co. v. Empire Storage Ice Co., 227 Mo. App. 1115, 58 S.W.2d 777; Balding v. Farm Home, etc., 131 S.W.2d 57 (5). (7) Acquiescence, waiver, estoppel and laches are all alike in this, that before they can be properly predicated against a party "it must unequivocally appear" "that the party acted with full knowledge of all the material facts and circumstances and with a full knowledge of his legal rights, and that the position of the party invoking the doctrine would be changed if the matter was opened up." Garesche v. Leving Inv. Co., 146 Mo. 436. (8) Defendants did not allege, nor was there any evidence to show that because of delay the conditions had become such as to practically preclude the court from arriving at a safe conclusion, therefore, laches do not apply. St. Louis Union Trust Co. v. Busch, 145 S.W.2d 426 (7). (9) Prior to, at and after the foreclosure there were several different kinds of fiduciary, confidential and trust relations existing between Mr. Bragg and Mr. Ross. These not only preclude the application of acquiescence, estoppel and laches but serve also to show a right to redeem the one-fifth interest and obtain the rents and profits from it. They were tenants in common. That is a fiduciary relation and precludes a cotenant or his spouse (in this case Mrs. Ross) from obtaining any advantage of the other cotenant. Kohle v. Hobson, 215 Mo. 213; Brown v. Howard, 264 Mo. 466. (10) They were partners in farming the land. Partnership is a fiduciary relation which exacts the "finest loyalty." Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 590. (11) They were and for years had been intimate friends which made Mr. Ross the same as an appointed trustee or agent. Turner v. Turner, 44 Mo. 538. (12) The deed to Mr. Ross required him to pay for Mr. Bragg and plaintiff and to their creditors the amount agreed upon as the purchase price of the 4/5ths interests therein conveyed, the sums specified on the lien debts, including $6000 on this particular lien debt. That deed made Mr. Ross a trustee, as to such matters and the land. Turner v. Butler, 126 Mo. 131, 137. (13) After Mr. Bragg became afflicted with paralysis, he was by his affliction forced to and did, entrust everything in connection with the land and the farm to Mr. Ross, and Mr. Ross accepted the responsibility and the relation such responsibility cast upon him. He had the "dominating" controlling interest in the land (4/5ths) and domination of influence. That made him a fiduciary. Dimity v. Dimity, 62 S.W.2d 859, 861; Rvan v. Ryan, 174 Mo. 279: Selle v. Wrigley, 116 S.W.2d 221; Kilka v. Real Estate Co., 150 S.W.2d 18, 24 (4); State ex rel. Lee v. Sartorious, 344 Mo. 912, 918, 130 S.W.2d 547. (14) The relation of principal and surety existed. Greer v. Orchard, 175 Mo. App. 494, 498: Smith v. Davis, 90 Mo. App. 533, 539; Needham v. Caldwell. 154 S.W.2d 535. (15) Also Mr. Bragg and plaintiff had a vendors' lien upon the 4/5ths interests, for the amounts Mr. Ross had assumed and agreed, but had failed, to pay. Mr. Ross did not own the 4/5ths or have more than an equitable title thereto until be paid as agreed. Waugh v. Williams, 342 Mo. 260, 270; Young v. Blocks, 146 S.W.2d 902; Mollett v. Beckman, 78 S.W.2d 886; Causer v. Wilmoth, 142 S.W.2d 777. (16) By reasons of the aforesaid relations, conditions, facts and circumstances, Mr. Ross was a trustee, within the meaning of "trustee" as defined by this court. Dibert v. D'Arcy, 248 Mo. 617-647; State ex rel. Lee v. Sartorious, 344 Mo. 912, 918; Turner v. Butler, 126 Mo. 131, 137; Conn. Mut. Ins. Co. v. Smith, 117 Mo. 295. (17) Mrs. Ross held whatever title, if any, that was conveyed by the trustee's deed to her, in a resulting trust. Black v. Banks, 327 Mo. 341, 349; Mahen v. Tavern Rock, 327 Mo. 391, 396; Luker v. Moffett, 327 Mo. 929, 936, 48 S.W.2d 1039. (18) The above facts made and showed her to be a holder in resulting trust. Sec. 3495, R.S. 1939; Condit v. Maxwell, 142 Mo. 274; Woodard v. Cohron, 137 S.W.2d 498; Mays v. Jackson, 346 Mo. 1224, 145 S.W.2d 392; Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 9; Bryan v. McCaskill, 284 Mo. 584, 225 S.W. 687. (19) A party cannot acquire title by buying it at a sale made for his own debts. Wicoff v. Moore, 257 S.W. 474. (20) It was thought necessary that the property go through the form of selling to some friendly third party. But the law abhors subterfuges. "The law is not to be hoodwinked by colorable pretenses; it looks at the truth and reality through whatever disguise it may assume." Door Co. v. Fuelle, 215 Mo. 421, 453. (21) If the debt secured by a deed of trust be paid before a sale, a sale is void. If the debt be paid and accepted, after the sale, but before the deed is made, the sale is waived, abandoned and renounced, and a deed made after that is void. Jackson v. Johnson, 248 Mo. 680; Hoffman v. Hogan, 345 Mo. 903. (22) The court erred in refusing to allow plaintiff to redeem the 1/5th interest, or awarding her other adequate and appropriate relief, under her prayer for general relief. Howard v. Scott, 255 Mo. 685; Runnells v. Lasswell, 219 S.W. 980; Agille v. Sarpy Grimsley, 1 Mo. 389; Thomas, Trustee, v. Zumbalen, 43 Mo. 471; Condit v. Maxwell, 142 Mo. 266; Perry v. Strawbridge, 209 Mo. 621; Deitrick v. Greaney, 309 U.S. 190, 60 Sup. Ct. 480. (23) This court has held that it was "a fraudulent trick or contrivance" for a party to suffer a breach of contract under which he is obligated to pay something and by the breach divest himself of any interest and then attempt to acquire a new interest discharged of what he owed. Thomas, Trustee, v. Zumbalen, 43 Mo. 471, 479; Wicoff v. Moore, 257 S.W. 474; Fountain v. Starbuck, 209 S.W. 900; Bower v. Daniel, 198 Mo. 289. (24) If the written instruments fell short of disclosing in detail the object and purpose of the trust the same could be supplied by reasonable presumption or oral evidence, and the acts and relations of the parties. Woodard v. Cohron, 137 S.W.2d 498. (25) There was no contradiction in the evidence or impeaching circumstances. Therefore, the custom of deferring to the chancellor has no application in this case. Plemmons v. Pemberton. 346 Mo. 45, 56, 139 S.W.2d 910. (26) The rents and profits shown by the evidence cover a period after the death of Mr. Bragg, and therefore, plaintiff and her husband's heirs (defendants) were co-tenants with Mr. and Mrs. Ross and have a lien on the undivided four-fifths for their share of the rents and profits on the one-fifth. Beck v. Kellmeyer, 42 Mo. App. 563. (27) Appellant has the right to redeem the one-fifth interest for herself and heirs. 42 C.J., p. 400, sec. 2182. (28) Plaintiff in equity is entitled to be allowed her statutory allowances out of the rents and profits on the one-fifth interest exclusive of the rents on her dower. Secs. 105, 106, R.S. 1939; Mahoney v. Nevins, 190 Mo. 360, 88 S.W. 731. (29) The chief ground of respondents for affirmance is that one co-tenant may acquire an irredeemable title to land at a mortgage sale. This may be true, provided the co-tenants are similarly situated, which is not the case here. Mr. Ross owned four-fifths of the mortgaged land and owed four-fifths of the mortgage debts. This gave him an advantage over Mr. Bragg at a foreclosure sale. Also, four-fifths of the land stood as security to Mr. Bragg for his primary liability for four-fifths of the mortgage debts to the mortgagees and Mr. Ross could not deal with it inconsistent with his obligation to Mr. Bragg. He could not obtain title to said land at a sale under a first mortgage as to Mr. Bragg without first releasing Mr. Bragg in some way from four-fifths of the mortgage debts. 41 C.J., sec. 811, p. 747; McCollum v. Boughton, 132 Mo. 601; 66 C.J., sec. 1094, p. 1227.
C.G. Shepard and Ward Reeves for Charles G. Ross and Mary Tipton Ross.
(1) Under the proof in this case, since Ross did not instigate or cause the property to be sold, but that same was sold on account of default and refusal of Bragg to meet his part of the obligation, the plaintiff, nor Bragg prior to his death, had or has no right to redeem the property from the trustee's sale. Wenzel v. O'Neal, 222 S.W. 392; Dudgeon v. Hackley, 182 S.W. 1004; Snell v. Harrison, 104 Mo. 158; Nations v. Pulse, 175 Mo. 86: Becker v. Becker, 254 Mo. 668; Starkweather v. Jenner, 216 U.S. 524; 41 C.J., p. 977, sec. 1428. (2) The applicable rule of law in this sort of case is that the wife's marital rights in land covered by a deed of trust executed jointly by herself and husband (absent allegation and proof of fraud) can be protected in only two ways; one, by paying off the indebtedness before sale, and the other, by complying with Sections 3450 and 3451, Revised Statutes 1939, to redeem the land. Moss v. Brant, 216 Mo. 641; Moss v. Fitch, 212 Mo. 484; Keith v. Browning, 139 Mo. 190. (3) There being a total lack of facts to show fraud or unfairness, there can be no resulting trust. There were neither facts nor pleadings sufficient to establish such fraud or unfair dealing. Sec. 3494, R.S. 1939; Gates Hotel Co. v. Davis Real Estate Co., 52 S.W.2d 1011; Gates Hotel Co. v. Federal Inv. Co., 52 S.W.2d 1016; Purvis v. Hardin, 122 S.W.2d 936. (4) Neither the plaintiff nor her husband acted with that degree of promptness which equity demands, and the plaintiff, as well as her husband, was and is guilty of such laches as to prevent equitable relief in this case. Kline v. Vogel, 90 Mo. 239; Bliss v. Prichard, 67 Mo. 181; Kellogg v. Moore, 271 Mo. 189; Breit v. Bowland, 100 S.W.2d 599. (5) Neither Bragg, his heirs or his widow, have any vendor's lien capable of being enforced in equity until they paid off or discharged that part of the obligations which Ross agreed to pay. Orrick v. Durham, 79 Mo. 174.
This is a suit in equity brought by Maude Bragg, widow of C.E. Bragg, deceased, against Charles G. Ross, Mary Tipton Ross, his wife, and certain other defendants. One of the remaining defendants is sued merely as the trustee in a deed of trust. The others, beside the Rosses, have defaulted. The Rosses filed a demurrer to the plaintiff's petition which was sustained by the trial court and she appealed to this court. The case was assigned to Division Two, which held the petition sufficient [Bragg v. Ross, 139 S.W.2d 491], and therefore reversed and remanded the cause. It was thereafter heard in the trial court upon bill, answer and proofs and a decree rendered for the defendants, from which the plaintiff has again appealed.
Prior to December, 1928, C.E. Bragg was the sole owner of a certain island in the Mississippi River, the title to which is here involved. In January of 1928 Mr. Bragg and his wife executed two deeds of trust on this real estate, the first was to M.E. [265] Singleton of St. Louis, securing a note for $7500, the second to the First National Bank of Caruthersville, securing an indebtedness of $9500. In December, 1928, Mr. Bragg entered into a contract with the defendant, Charles G. Ross, in pursuance of which the Braggs deeded to Ross an undivided 4/5 interest in the island and also an undivided 4/5 interest in certain farm machinery and live stock located thereon. The consideration is not clearly stated in the deed and the statement of the consideration therein contained differs slightly from that given in the contract, but it appears to have included the assumption by Ross of certain items of indebtedness including the following: interest due February, 1929, on the Singleton note, $2000 of the principal of the bank note, and 4/5 of the principal of both the Singleton and the bank notes.
Neither of the two mortgage notes was paid and in 1931 Singleton requested the trustee to foreclose. The trustee under the deed of trust, a Mr. Litzelfelner, got in touch with Mr. Bragg and Mr. Ross and told them that Singleton was demanding payment. They requested Litzelfelner to go to St. Louis and attempt to obtain an extension of time from Singleton. Singleton then agreed that if Bragg and Ross would pay him $1500 in cash, together with accrued interest, he would give them six months' extension. When this word was brought back to Bragg and Ross, the former stated to the trustee that he was not in a position to pay anything at all. Ross, however, paid $1500 and the accrued interest and secured the six months' extension. At the end of this period, payment was again demanded and Bragg told Litzelfelner that he was unable to pay anything at all. The latter then proceeded to advertise the property under the deed of trust and sold it. There is no evidence at all that Ross suggested such sale being made or did anything to encourage the foreclosure. At the trustee's sale Singleton bid for the amount then due on his note, was the highest bidder, and the property was stricken off to him. The trustee's deed was not immediately executed, however, and thereafter Ross and his wife approached Litzelfelner with reference to buying the land from Singleton. A new loan was arranged from a local bank for this purpose and, with the proceeds of the loan, the Rosses paid Singleton and at his direction a trustee's deed was made to Mrs. Ross. Neither of the Braggs signed this new note.
For sometime prior to the foreclosure sale Bragg had been in ill health, following a paralytic stroke. After this stroke he ceased to engage in the active practice of law but he did serve as a justice of the peace and conciliation commissioner in bankruptcy. The foreclosure sale took place in February, 1932. Mr. Bragg did not die until 1935, after another paralytic stroke. He left no children and his father and mother had predeceased him. The defaulting defendants are his collateral heirs. Shortly after his death the plaintiff made application to the probate court for a refusal of letters of administration and, upon a proper showing that Bragg left no estate beyond the amount of the widow's statutory allowances, such an order was made.
After Ross became a co-owner of the island with Bragg they continued to operate it as partners through tenants, and during the period when Bragg was partially incapacitated through illness Ross seems to have been chiefly in charge of its management. There is no evidence, however, of any fraud or dishonest dealing on the part of Ross, nor is there any evidence of collusion between Ross and Singleton with respect to the foreclosure of the mortgage, nor of any attempt to conceal from Bragg the subsequent purchase of the property by Mrs. Ross. There is evidence that immediately before Bragg's death he sent for Ross, saying that he wanted to talk to him about the island. At this time Ross answered that he would be glad to talk to Bragg when he was better, but Bragg did not recover and shortly thereafter died. The original theory upon which plaintiff proceeded in the trial court was that Ross, being a co-tenant of Bragg and in partnership with him, occupied a confidential relationship to him and hence was deemed to have purchased at the foreclosure sale as a constructive trustee for Bragg. In Hinters v. Hinters, 114 Mo. 26, 21 518 S.W. 456, this court said: "Tenants in common occupy a confidential relation to each other, and because of this relation there is an implied obligation on the part of each to sustain and protect the common title. It is, therefore, a general rule that if a tenant in common buy up an outstanding title or incumbrance, the purchase will be deemed to have been made for the benefit of all the co-tenants, the other co-tenants being bound, however, to contribute their respective proportions of the consideration paid for the outstanding title or incumbrance."
[266] This rule is well illustrated by the case of Kohle v. Hobson, 215 Mo. 213, 114 S.W. 952. There the plaintiff and the wife of the defendant were heirs at law of Winifred Cole, who died intestate owning certain real property in Kansas City. At the time of the death of the intestate the property was subject to the lien of certain city taxes and was later sold under a procedure which seems to have been closely akin to that now followed under the Jones-Munger law. A certificate of purchase was issued to the highest bidder which, at the expiration of a two year redemption period, would entitle him to a collector's deed. The defendant purchased this certificate at private sale from the original holder. This court held that the defendant was to be treated exactly as his wife would have been had she purchased the certificate and that she, being an heir and therefore a co-tenant with the plaintiff, held equitable title under the certificate in trust for herself and the plaintiff, subject to a purchase money lien. Other cases applying the rule are: Morrison v. Roehl, 215 Mo. 545, 114 S.W. 981; Cockrill v. Hutchinson, 135 Mo. 67, 36 S.W. 375, 58 Am. St. Rep. 564; Meads v. Hutchinson, 111 Mo. 620, 9 S.W. 1111; Allen v. DeGroodt, 105 Mo. 442, 16 S.W. 494; Defreese v. Lake (Mich.), 67 N.W. 505; Phelan v. Boylan, 25 Wis. 679.
There is, however, an important and well-recognized exception to the rule. Where property is sold at public auction under a valid lien and the sale is not procured by action of the subsequent purchaser the co-tenant who purchases the paramount title is held not to hold the same in trust for his co-tenant. This is upon the theory that the sale being a public one, each of the co-tenants has an equal chance to bid. The leading case is that of Starkweather v. Jenner, 216 U.S. 524, 30 Sup. Ct. 382, 54 L.Ed. 602. Plaintiff owned certain lots in Washington, D.C., upon which he placed a mortgage. Thereafter he conveyed these lots to trustees for individuals who should subscribe to shares in a syndicate for the purpose of marketing them. Defendant purchased a beneficial interest under the trust and became an equitable co-owner. The mortgage on the land was foreclosed under a power of sale contained therein and the land sold at public auction, the defendant buying in the entire title. Plaintiff sought to have the court declare a trust in favor of himself and the other co-owners. However, the Supreme Court of the United States, although recognizing the general rule as stated above, said: "But it is plain that the principle which turns a co-tenant into a trustee who buys for himself a hostile outstanding title can have no proper application to a public sale of the common property, either under legal process or a power in a trust deed. In such a situation, the sale not being in any wise the result of collusion, nor subject to the control of such a bidder, he is as free, all deceit and fraud out of the way, as any one of the general public." A similar situation was before this court in the case of Dudgeon v. Hackley (Mo.), 182 S.W. 1004. Alexander Dudgeon, Sr., died intestate devising lands to his son Alexander, Jr., in entailment, charging them, however, with a payment of certain sums to other persons. The owners of these charges brought a foreclosure suit which resulted in a decree of sale. At such sale the life tenant purchased the fee. He then died without issue, devising the land to the defendant. Plaintiff was an heir of Alexander, Sr., and thus entitled to the reversion on failure of the entailed estate. Like the present plaintiff he claimed that Alexander, Jr., standing in a confidential relationship to the reversioners, had acquired fee simple title in trust for them; but this court, citing the Starkweather case, supra, held otherwise.
Therefore had the defendant Ross personally appeared at the foreclosure sale and publicly bid in this land, his purchase would not have created a constructive trust relationship between himself and the plaintiff. The evidence, however, does not show such a direct sale to the defendants. Although the trustee's deed was made to Mrs. Ross, the actual fact is shown to be that Singleton bought in the land and then resold to Mrs. Ross. However, the foreclosure sale at which Bragg had a chance to bid, but did not bid, effectively disposed of all of his title in the real estate, and at the time the trustee's deed was made to Mrs. Ross her husband and Bragg were not co-tenants. She acquired title therefor for herself alone and not in trust for Bragg.
It is contended by the plaintiff that Ross was actually in possession of the land during the interval between the foreclosure sale and the trustee's deed. Without passing [267] upon the materiality of this fact we point out that the actual possession was in the tenant and not in either Bragg or Ross and that legal seizin passed from Bragg and Ross at the time of the foreclosure sale. If it be contended, however, that legal seizin did not pass until the trustee's deed was made, then Mrs. Ross' purchase was in fact a purchase at the foreclosure sale, and under the rule of the Starkweather case could not be held to be a purchase in trust for her husband's co-owner. The trial court therefore properly held that no constructive trust here existed.
Plaintiff contends now that even though she is not entitled to relief upon the theory of a constructive trust, she is entitled to a vendor's lien against the premises. It is well recognized that where one party sells real estate to another for a definite consideration which is not paid and where the vendor does not take from the vendee a mortgage or other specific security for the purchase price, equity will create a lien in favor of the vendor against the property sold. [Sloan v. Campbell, 71 Mo. 387, 36 Am. Rep. 493; 27 R.C.L. 568.] Such a lien is not terminated by the death of the original vendor but it descends to his personal representatives, legatees or next of kin. [Wellborn v. Williams, 9 Ga. 86, 52 Am. Dec. 427; Tiernan v. Beam, 2 Ohio, 383, 15 Am. Dec. 557.] The doctrine of implied vendor's liens applies to real estate but not to personalty. [27 R.C.L. 571.] For this reason some confusion has arisen in cases like the present where both real estate and personal property are sold at the same time for a consideration not apportioned between them. Some authorities hold that in such cases no lien can be asserted. [Parrish v. Hastings (Ala.), 14 So. 783, 48 Am. St. Rep. 50; Peters v. Tunell (Minn.), 45 N.W. 867, 19 Am. St. Rep. 252.] Other cases permit the enforcement of the lien under such circumstances. [Doty v. Deposit Building Association (Ky.), 46 S.W. 219, 43 L.R.A. 551; Zeiser v. Cohn, 207 N.Y. 407, 101 N.E. 184, 47 L.R.A. (N.S.) 186.] We refrain, however, from expressing an opinion as to the correct rule in these cases because in the view we take of the case the decision of the question will be unnecessary.
Assuming, for the sake of argument, that Bragg did have a vendor's lien against Ross' 4/5 interest in this land at the time of the original deal from Bragg to Ross. Such lien was extinguished by the foreclosure sale. The implied vendor's lien could not have any greater force or effect than a mortgage. If Bragg had taken back a purchase money mortgage from Ross it would have been a third lien junior to the Singleton mortgage (first lien) and the bank mortgage (second lien). When the first mortgage was foreclosed all junior encumbrances were thereby extinguished and the title passed to Singleton free and clear and thereafter his title vested in Mrs. Ross.
Nor can it be argued that equity should revive or keep alive the original vendor's lien after the foreclosure sale because of the failure of Ross to perform his obligation of paying off a portion of these prior debts. Ross was under no duty to pay off more than the particular portion of the two debts which he assumed. Had he paid everything he owed to Singleton the Singleton mortgage might still have been foreclosed because of the failure of Bragg to pay his part. The evidence shows that Bragg not only did not pay his part but could not have done so, and that he stated to the trustee that he was not in a position to pay anything. Furthermore, payment to Singleton by Ross would have left the general mortgage in full force and effect as a lien superior to Bragg's lien. Hence Bragg was not injured by Ross' failure to pay his part of the Singleton indebtedness. We therefore hold that no vendor's lien now exists in favor of Mrs. Bragg against this land.
It is claimed by plaintiff that she is entitled to an accounting for the personal property sold to Ross in connection with the sale of the real estate. The petition is not carefully drawn but it apparently states facts entitling plaintiff to such accounting. The evidence tends to show that Bragg and Ross operated the farm as partners from 1928 to 1932 and that the personal property mentioned constituted part of the partnership assets. From and after the foreclosure sale the partnership was dissolved. It is also shown in evidence that at least during the latter part of the partnership the active management of affairs was carried on by Ross. It is true that the answer pleads that the partnership lost money during this period [268] and was actually indebted for more than $9000. This allegation was not denied by a reply, but since it is in effect a mere denial of charges made in the bill, a reply was unnecessary and there is no proof of the allegation so made. Ross, although an incompetent witness in his own behalf for most purposes, might have identified the original books of the partnership, but he did not do so. Furthermore the bill prays an accounting of all of the partnership affairs during its continuance. As we have seen, the partnership ceased to exist in 1932 and from and after the foreclosure sale the land was the sole property of Mrs. Ross. But up to that time Ross and Bragg were partners and the plaintiff, as Bragg's widow, entitled to statutory rights in his personalty, is entitled to have an accounting covering: (a) the profits and losses of the partnership prior to the foreclosure sale, and (b) the personal property, an interest in which was sold to Ross but which was not covered by the Singleton deed of trust.
Defendants say, however, that any rights of the plaintiff are barred by her laches. The right to an accounting accrued as of the date of the foreclosure sale in 1932. The present action was brought in 1937. However, the evidence tends to show that during the period from 1932 until his death Mr. Bragg, although he was certainly not mentally incompetent since he was able to hold the offices as justice of the peace and conciliation commissioner, was nevertheless in such weakened mental and physical condition that it was difficult for him to carry on ordinary business. The evidence further shows that there was no definite denial by the defendants of his rights during this period and he, no doubt, was relying upon the Rosses to make settlement at the proper time. Under the circumstances we do not feel that Mr. Bragg nor the present plaintiff have been guilty of such laches as to bar action for an accounting.
It follows, therefore, that the judgment of the trial court should be reversed and the cause remanded with directions to order an accounting to be taken between the plaintiff and the defendants as to the two classes of items previously mentioned in this opinion. If, upon the taking of the account, it should appear that the partnership between Bragg and Ross actually continued until a later date than the date of the foreclosure sale, the accounting taken by the trial court should include the items of debit and credit to the actual determination of the partnership. It is so ordered. All concur.