27 Mo. 428 (Mo. 1858), Drake v. Jones

Citation:27 Mo. 428
Opinion Judge:RICHARDSON, Judge,
Party Name:DRAKE, Appellant, v. JONES et al., Respondents.
Attorney:Porter & Harrison and W. M. Cooke, for appellant. T. L. Anderson, for respondent.
Court:Supreme Court of Missouri

Page 428

27 Mo. 428 (Mo. 1858)

DRAKE, Appellant,


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...

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