Cole v. Lewis (159 S.W. 180, 1913)

DUNKLIN, J.

J. N. Brunson conveyed to J. H. Wilson 4S0 acres of land, reserving a vendor’s lien to secure the payment of two promissory notes given by Wilson for part of the purchase money. Wilson sold 200 acres of the tract to H. E. Green, and reserved a vendor’s lien to secure the payment of nine promissory notes in his favor executed by Green for part of the purchase money. These notes were purchased from Wilson by W. B. Lewis. Thereafter Brunson obtained a judgment against Wilson for $458.94, the amount due upon the two purchase-money notes executed by the latter, together with a decree of foreclosure of vendor’s lien on the entire 480-acre tract, but at the instance of Lewis, who had intervened in the suit, it was decreed that the 280 acres of the original tract still owned by Wilson should be first sold to satisfy the amount of Brunson’s judgment, and that the 200 acres which Wilson sold to Green be sold in the event only that the proceeds of the 280 acres should be found insufficient to satisfy the amount of the judgment. Green then conveyed the 200 acres purchased by him from Wilson to Lewis in satisfaction of the nine purchase-money notes executed to Wilson. Lewis then conveyed the 200 acres to H. 6. Schneider, who executed to Lewis fire promissory notes for $150 each. By mesne conveyances from Schneider, his vendee and subvendees, the 200 acres was sold to J. C. C. Martin and George W. Dingus. The date of the judgment in favor of Brunson was April 17, 1908. On August 29, 1908, Wilson, the defendant in the judgment, executed to the Farmers’ & Merchants’ State Bank & Trust Company his promissory note for $1,416.65, due 90 days after date, and to secure'the same, and on the same date executed to the bank a mortgage on the 280 acres of land, which by the decree of foreclosure in favor of Brunson was directed to be first sold to satisfy Brun-son’s judgment. The note so executed by Wilson to the bank included a pre-existing unsecured debt of $950, which Wilson owed the bank, and which was thus renewed and extended, also $466.65, the amount then due Brunson upon his judgment of foreclosure above mentioned. At the time of the execution ■ of the note and mortgage, and in part consideration therefor, the bank agreed with Wilson to set aside said sum of $466.65 as a special deposit with which to pay off said judgment in favor of Brunson, and this was done. On December 1, 1908, the bank paid to Brunson the amount of his judgment out of the special deposit mentioned, and by agreement with Wilson received from Brun-son a transfer of the judgment. On March 26, 1909,