Drake v. Jones

• Citation: 27 Mo. 428
• Parties: DRAKE, Appellant, v. JONES et al., Respondents.
• Decision Date: 31 October 1858
• Court: United States State Supreme Court of Missouri

27 Mo. 428

DRAKE, Appellant,

v.JONES et al., Respondents.

Supreme Court of Missouri.

October Term, 1858.

1. L., being indebted to D., E. and F., assigned to D., in trust to secure said D., E. and F., certain promissory notes executed by O. & R. One J. recovered a judgment against L. Afterwards said L., D., E., F., O. & R. entered into an arrangement, by which, upon the allowance of certain credits upon said notes, O. conveyed a certain lot of ground to L., and L. at the same time conveyed the same in trust to secure D., E. and F. The sum bid by D. at this sale was less than the amount of the indebtedness, to secure which the deed of trust was given. The land was sold under this deed of trust, and D. became the purchaser. J. caused an execution to be issued upon his judgment against L., and to be levied upon L.'s interest in said lot. Held, that L. had no interest in the lot upon which J.'s judgment might operate as a lien; that consequently no title would pass to a purchaser at a sheriff's sale under said execution; that an injunction would not lie to restrain a sheriff's sale thereunder.

2. Sheriff's sales cannot be enjoined on the ground that they will pass no title and may cast a cloud on the title of the true owner.

Appeal from Hannibal Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Porter & Harrison and W. M. Cooke, for appellant.

I. Lowe had no beneficial interest in the land purchased by the notes belonging to the St. Louis creditors. The judgment in favor of Jones was not a lien upon the mere legal title in Lowe. (1 Paige Ch. 280; 5 S. & M. 702; Tallman v. Farley, 1 Barb., S. C., 280; Kiersted v. Avery, 4 Paige, 15; Whitworth v. Gaugain, 3 Hare, 416; Laughton v. Horton, 1 Hare, 549.) Again, Lowe never had such a seizin in the land as would subject it to the lien of a judgment. (4 Kent, 39.) Drake was entitled to his injunction against the sheriff and Jones to restrain the sale under the execution. (See Gamble v. City of St. Louis, 12 Mo. 620; Lockwood v. City of St. Louis, 24 Mo. 21; Petit v. Shepherd, 5 Paige, 493; Norton v. Beaver, 5 Ohio, 178; Wright, 127; Kenyon v. Clark, 2 Rho. Is. 67; Dyer v. Armstrong, 5 Ind. 437; Money v. Dorsey, 7 S. & M. 727; Wilson v. Butler, 3 Munf. 559; 2 Sto. Eq. §§1503, b., 701, 827, 698.)

T. L. Anderson, for respondent.

I. An injunction will not lie in a case like the present. (Eden on Inj. 12.) The inquiry in this case is not whether the plaintiff has a better title than Lowe, the defendant in the execution, nor whether any title will pass by sale under the execution; but whether the sale would impair the rights of the plaintiff.

RICHARDSON, Judge, delivered the opinion of the court.

In June, 1852, S. J. Lowe held three notes on Owsley & Reyburn amounting to $5,000, due at different times; and, being indebted to the plaintiff and other creditors in St. Louis about $4,500, he endorsed and delivered said notes to the plaintiff in trust for the purpose of securing the said debts. Afterwards, in October, as it was feared that the creditors would not realize their demands out of the notes held as collateral security, it was agreed that if Owsley would convey a lot in Hannibal (together with the quit-claim deed of Robards), the conveyance would be accepted in part satisfaction of said notes to the amount of $3,500. As to Owsley, he was to receive an absolute credit on the notes for $3,500; but as between Lowe and his creditors, the lot was to stand as security for their debt in lieu of the credit endorsed on the collaterals. Accordingly, it was agreed between all the parties that Owsley and Robards should convey the lot to Lowe, and that Lowe should simultaneously execute a deed of trust on the same, in the usual form, for the purpose of securing the said debt to his creditors; and pursuant to this understanding Owsley and Robards executed and delivered to the attorney of the creditors a deed conveying the lot to Lowe, and at the same time Lowe conveyed the lot to Judge Cooke in trust for the purpose of securing the said debt of $4,500. The debt named in the deed of trust not being paid, the trustee advertised the lot for sale according to the terms and stipulations of the deed, and at the sale the plaintiff became the purchaser, and received a deed. Owsley and Reyburn received a credit on the notes held by the plaintiff for $3,500, and no part of the consideration for the conveyance was paid by Lowe, and the deed never came into his hands. Between the time that the foregoing arrangement was agreed on and finally consummated, the defendant recovered a judgment against Lowe in the Hannibal Court of Common Pleas, and in January following caused an execution to issue, which was levied on the lot conveyed by Owsley and Robards; and, the sheriff having advertised it for sale, the plaintiff filed his petition for an injunction, on the ground that the judgment was not a lien as against the plaintiff's title, and that the sale, without passing any title, would cast a cloud on his title. The court granted a temporary injunction, but on the final hearing dismissed the petition and dissolved the injunction.

The endorsement of the notes of Owsley & Reyburn to the plaintiff, vested in him the legal title to them, subject to a trust in favor of the creditors whom he represented, and the lot being purchased with the notes, the creditors had the right in equity to pursue...