Turner v. Edmonston

• Decision Date: 18 February 1908
• Citation: 210 Mo. 411,109 S.W. 33
• Parties: TURNER et al. v. EDMONSTON et al.
• Court: Missouri Supreme Court

109 S.W. 33

210 Mo. 411

TURNER et al. v. EDMONSTON et al.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. WRIT OF ERROR—SUING OUT WRIT—EFFECT.

The suing out of a writ of error is the commencement of a new action.

2. LIS PENDENS — PENDENCY OF ACTION — PURCHASER PENDING ACTION—RIGHTS ACQUIRED.

A judgment creditor obtaining a judgment to establish a lien on real estate purchased the premises at execution sale, and conveyed the same by quitclaim to his attorney. The defeated party thereafter sued out a writ of error without giving bond or without obtaining a supersedeas. Notice was given to the attorney who appeared in the Supreme Court. Pending a rehearing of the cause the attorney conveyed the premises to a purchaser. Held, that the purchaser was a lis pendens purchaser, and took the land subject to the result of the suit on rehearing.

3. SAME.

The deed of a party pendente lite is void, and an innocent purchaser is bound by the decree that may be made against the person from whom he derives title either directly or indirectly.

4. SAME.

A lis pendens prosecuted in good faith is notice to any and all purchasers so as to affect and bind by the decree any interest in the property which they may acquire by reason of their purchase.

5. SAME.

A judgment creditor obtaining a judgment establishing a lien on real estate purchased the premises at execution sale, and conveyed the same by quitclaim deed to his attorney. Thereafter the defeated party sued out a writ of error, and served notice thereof on the attorney. The attorney had been the attorney of the successful party during the entire litigation, though he testified that he was not the attorney at the time of his purchase. Held, that he occupied the position the judgment creditor occupied.

6. VENDOR AND PURCHASER—BONA FIDE PURCHASER—NOTICE.

Where the deed under which a purchaser claims title shows by its recital that the property is trust property for individuals not made parties to a suit involving the property, the purchaser is not a purchaser without notice, and he holds the property in trust for the beneficiaries.

7. SAME.

A judgment creditor obtaining a judgment establishing a lien on real estate purchased the premises at execution sale, and conveyed the same to his attorney. The defeated party thereafter sued out a writ of error, and served notice thereof on the attorney who appeared in the Supreme Court, and who, pending the disposition of the cause on rehearing, conveyed the premises to a third person. The third person before his purchase knew that the cause was pending, or he was in possession of information sufficient to put an ordinary prudent man on inquiry as to title. He had read the opinion in the cause on the original hearing. He knew from recitals in a deed that the property was trust property, and by referring to the judgment he could have discovered that two of the beneficiaries were infants, and had not been made parties to the suit. Held, that the third person was not an innocent purchaser without notice.

8. ESTOPPEL—ESTOPPEL IN PAIS—AVAILABILITY AS A DEFENSE.

Estoppel in pais, to be available as a defense, must be pleaded.

9. SAME—EVIDENCE—SUFFICIENCY.

In ejectment, evidence held not to create an estoppel in pais against plaintiff.

10. EQUITY—LACHES—AVAILABILITY AS A DEFENSE.

The defense of laches relied on as an estoppel is not available, unless pleaded.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by A. G. Turner and others against J. O. Edmonston and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

F. R. Jesse and Robertson & Robertson, for appellants. P. H. Cullen and Allen Stallings, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of lot 31 of Mrs. Spark's Southern addition to the city of Mexico, Mo., the purpose of the suit being to enforce restitution of said property, which was sold under execution issued upon a judgment rendered in the case of Roden v. Helm et al., which judgment was, on writ of error, reversed in Division 2 of this court; the case being reported in 192 Mo. 71, 90 S. W. 798. The petition is in the usual form, the answer, a general denial, ouster laid March ___, 1904, damages claimed $600. The cause was tried by the court sitting as a jury, the trial resulting in a judgment for the defendants, from which judgment, after an unavailing motion for a new trial, plaintiffs appeal.

The facts, briefly stated, are as follows: On March 21, 1899, Thomas F. Roden obtained a judgment against Thomas Helm, Anna S. Helm, Elizabeth Helm (now Mrs. Matthews), and A. G. Turner for $1,495.10, and the same was declared a lien upon the lot in controversy and some farm land in which the said Helms had an interest; the said real estate having been deeded to said A. G. Turner as trustee for their use and benefit. The sale, under execution, was made on the 16th day of June, 1899, and Thomas F. Roden, the judgment creditor, became the purchaser of said lands. Afterwards, on the 29th day of July, 1899, Thomas Roden by quitclaim deed conveyed said lands to his attorney, W. A. Edmonston, brother of the defendant herein; the consideration being $1,780. Thereafter, on August 11, 1899, W. A. Edmonston instituted two suits in ejectment for the possession of the lands described in said judgment, and obtained judgment in each case, and on March 17, 1904, said cases coming on for hearing in the Supreme Court, Division No. 1, the judgments of the lower court were affirmed, the causes being styled Edmonston v. Carter et al. and Edmonston v. Helm et al. On August 28, 1900, the defendants in the case of Roden v. Helm et al. sued out a writ of error, but gave no bond, nor asked for nor obtained a supersedeas in said case. Due notice of the issuing of said writ was served upon W. A. Edmonston, attorney for Roden, and holder of said quitclaim deed from Roden. The case was submitted in the Supreme Court on October 18, 1903, and afterwards, on March 23, 1904, the judgment of the lower court was affirmed. Immediately thereafter the plaintiff's in error filed a motion for a rehearing, which motion was sustained and a rehearing granted on the 10th day of May, 1904. The case was again set down for argument in Division No. 2 of this court on October 14, 1905, and thereafter, on the 25th day of October, 1905, a decision was rendered reversing the judgment of the court below and remanding the cause. By deed dated March 21, 1904, and recorded July 22, 1904, said W. A. Edmonston conveyed said lands to his brother, J. Q. Edmonston, the defendant herein. W. A. Edmonston was the attorney of record of Thomas Roden from the inception of the litigation, and attended the sale under execution, and did the bidding for Roden. By reason of his connection with said litigation, and his investigation of the records prior to the trial, he became acquainted with the facts concerning the title to said lands, and with the origin and nature of the trust fund and of the deeds under which the Helms held title by their trustee, A. G. Turner. In addition to the notice, as hereinafter pointed out, which J. O. Edmonston had of the pendency of the case of Roden v. Helm et al. in the Supreme Court, this deed of his brother to him contains the following recitals: "All lot thirty-one (31) in Mrs. Sparks' addition to the city of Mexico, being the same lot of realty conveyed by J. B. Miller and Maggie Miller to A. G. Turner, trustee for Thomas Helm and Anna Helm, his wife, and children of said Thomas and Anna Helm, which deed is recorded in Audrain county, Missouri, and the same lot of realty conveyed by M. N. Nelson, sheriff of Audrain county, Missouri, by Harry Atchison, deputy sheriff, to Thomas F. Roden, and recorded in Audrain county, Missouri, July 13th, 1899, in Book 53, page 542, and the same lot or realty as conveyed by Thomas F. Roden and Maggie Roden, his wife, to W. A. Edmonston by deed on July 29, 1899, which deed is recorded in Audrain county, Missouri." When the decisions in Edmonston v. Carter et al. and Edmonston v. Helm et al. were rendered in Division No. 1 of this court at the March term, 1904, W. A. Edmonston was in the state of Colorado, and J. O. Edmonston went with the sheriff and took possession of these lands as the agent of his absent brother, W. A. Edmonston. It appears, also, that J. O. Edmonston carried on a correspondence with his brother in Colorado with a view to purchasing these lands from him, and called at the office of P. H. Cullen, attorney for W. A. Edmonston, and there either read or had read to him the decisions in the Edmonston cases alluded to.

The vital question in this case is whether J. O. Edmonston was a lis pendens purchaser of the land from his brother, W. A. Edmonston or, in other words, did he purchase the property with knowledge of the fact that the case of Roden v. Helm et al. was pending in the Supreme Court at the time of the purchase. It clearly appears from the record that at the time the defendant purchased the land from his brother, W. A. Edmonston, on the 21st day of March, 1904, the case of Roden v. Helm et al. was pending in the Supreme Court; and it is immaterial in this case that it was there upon writ of error. The general rule, however, is that the suing out of a writ of error is practically the commencement of a new action, and such it is regarded in this state. Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350. See, also, 2 Tidd's Prac. (3d Am. Ed.) p. 1141; Ripley v. Morris, 7 Ill. 381; Allen v. Mayor, 9 Ga. 286; Robinson v. Magarity, 28 Ill. 426; Eldridge v. Walker, 80 Ill. 270; International Bank v. Jenkins, 104 Ill. 143; Pierce v. Stinde, 11 Mo. App. 364. Treating the suing out of the writ of error on the 31st day of July, 1904, as the beginning of a new suit, notice thereof had been served upon W. A. Edmonston, attorney for Roden, and he appeared in the case when it was first heard in the...