Reed v. Lowe

• Decision Date: 14 May 1901
• Parties: REED v. LOWE.
• Court: Missouri Supreme Court

63 S.W. 687

163 Mo. 519

REED v. LOWE.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

JUSTICE'S EXECUTION — TRANSCRIPT — EXECUTION — ISSUANCE — RETURN — PRESUMPTIONS — SHERIFF'S DEED — PARTITION — PENDENCY OF PROCEEDINGS — EFFECT — ACTION TO QUIET TITLE — STATUTE OF LIMITATIONS.

1. Under Gen. St. 1865, p. 717, § 14, and Id. p. 718, § 3, making executions issued by a justice of the peace returnable in 90 days, an earlier return is premature, and hence insufficient to sustain a sheriff's sale and deed.

2. Under Gen. St. 1865, p. 717, § 14, and Id. p. 718, § 3, providing that no execution shall issue out of the circuit court on the transcript of a justice's judgment, if the defendant is a resident of the county, until an execution shall have been issued by the justice directed to a constable, and "returned that defendant has no goods whereof to levy the same," a return, "Not served for want of property," is insufficient to authorize the issuance of an execution by the clerk, and the sale of real estate, since it fails to show any effort to find property, which is contemplated by the statute.

3. No presumption arises from the issuance of an execution by the clerk of the circuit court on the transcript of a justice's judgment, as provided by Gen. St. 1865, p. 717, § 14, and Id. p. 718, § 3, that a return that defendant had no goods whereof to levy such execution was made to the justice court judgment required by said section before execution on the transcript may issue.

4. Where it appears that an execution issued by a justice was made returnable, and in fact was returned, in a less time than required by statute, a sheriff's deed given on a sale under an execution issued by the circuit court clerk on a transcript of the justice court proceedings, which merely recites the justice's judgment, the filing of the transcript, and the clerk's issuance of an execution on such transcript judgment, is insufficient to remedy such defect in the justice court execution.

5. A defect in a sheriff's deed given at a sale under an execution issued by the circuit court clerk, in that it failed to recite that execution had been returned nulla bona in the justice court, as required by Gen. St. 1865, p. 717, § 14, Id. p. 718, § 3, is not supplied by the complaint in an action to set such deed aside, which sets out the execution issued by the clerk, wherein he recites that the justice court execution was returned nulla bona, where such complaint also avers that such recital is false.

6. Such recital is not evidence of the facts set forth, since the clerk is without authority to certify to such facts.

7. A suit to partition realty, pending at the time of an action by one of the owners thereof to set aside a sheriff's deed to his interest as a cloud on his title, is not a bar to such action.

8. The statute of limitations does not begin to run against a reversioner as to an action to remove a cloud from his title until the death of the life tenant.

Appeal from circuit court, Clinton county; William S. Herndon, Judge.

Action by Daniel Reed against Joseph M. Lowe. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is a direct proceeding by bill in equity, instituted in the Clinton circuit court on April 29, 1898, to set aside a sheriff's sale and deed to 520 acres of land in Clinton county, Mo., made in April, 1875, under an execution issued upon a transcript of a judgment obtained before a justice of the peace. The land in controversy was a part of the home farm of John Reed, deceased, late of Clinton county, who died intestate in 1861, owning said land, together with a large amount of other land, and leaving, him surviving, the plaintiff and four other children, and his widow, Mary Reed. On the settlement of his estate, the land in question was set off to the widow, giving her a life estate therein, with reversion to the children, each an undivided one-fifth. By the death of his two brothers, Cyrus and James Reed, the plaintiff's interest was increased from one-fifth to three-tenths. On February 13, 1873, Eli M. Lyons, J. W. Winn, and William H. Comer, obtained a judgment against the plaintiff for $143.02, before Thomas F. Viglini, a justice of the peace within and for Concord township, in Clinton county, and on the same day the justice issued an execution on said judgment, returnable on the 12th day of May, 1873, in 88 days from its date. On May 12, 1873, the execution was returned, "Not served for want of property." On December 14, 1874, a transcript of said judgment showing the issuing of execution, and return of the constable as above stated, was filed in the office of the clerk of the circuit court of said county, signed "Alex. McWilliams, Justice of the Peace," who certifies that "the foregoing is a complete transcript of all proceedings had before Thomas F. Viglini in the above-entitled cause, as taken and copied from his docket." And on December 16, 1874, an execution was issued upon such transcript judgment from the office of the circuit clerk, directed to the sheriff of said county. This execution, which is a printed form, recites that an execution had been issued by the justice of the peace, and returned, "Not satisfied; no goods or chattels being found whereon to levy the same." On the 16th day of December, 1874, the sheriff levied upon plaintiff's undivided interest in the reversion in the 520-acre tract, and also his right, title, interest, and estate in 67 acres of land situate in the same county, and sold the same on the 27th day of April, 1875, during the sitting of the circuit court of said county, for $33, to the defendant, who received a sheriff's deed therefor. This deed recited that on the 13th day of February, 1873, Eli M. Lyons and others obtained a judgment before Thomas F. Viglini, a justice of the peace of Concord township, in Clinton county, against the plaintiff, for $142.02, as appears from a transcript of said judgment filed in the office of the clerk of the circuit court of said county on the 14th day of December, 1874, upon which transcript of judgment an execution issued from the clerk's office of said court in favor of Eli M. Lyons and others and against Daniel Reed, directed to the sheriff of said county, and delivered to him on the same day, by virtue of which on that date he levied upon and seized all the right, title, interest, and estate of plaintiff in said land. The deed was duly acknowledged and filed for record in the recorder's office on the 27th day of July, 1875. The sheriff's deed, it will be observed, makes no recital of the issue of the execution by the justice of the peace, and a nulla bona return thereon by the constable. At the time of such sale the plaintiff owned a present interest of one undivided fourth in the 67-acre tract, an undivided three-tenths interest in remainder in the 520 acres, subject, however, to the life estate of his mother, to whom the same had been assigned as her dower. The plaintiff's reversionary interest in the latter tract was worth at the time of defendant's purchase about $3,000. In February, 1898, Anna M. Reed commenced a suit in the Clinton circuit court to partition the land in question, making the parties to this suit defendants therein, alleging as a reason therefor their adverse claims of title thereto. The court ascertained the rights of the other parties to the suit, and made partition among them accordingly, but, in view of the present controversy, and to avoid complicating matters, declined to consider or determine the conflicting claims of the parties to the suit, and suspended all further proceedings in the partition suit, so far as plaintiff and defendant were concerned, until the determination of this controversy. At the time of the rendition of the judgment, and the issuance of execution by the circuit clerk, and sale by the sheriff, the plaintiff was a resident of Clinton county. The dowress, Mary Reed, resided on the land until her death, which occurred in February, 1898, and plaintiff lived with her most of the time. After her death, plaintiff, being in possession, brought this suit to set aside the sheriff's deed as a cloud on his title. Plaintiff's petition asks that the sheriff's sale be set aside, and the deed to defendant be declared void for the following reasons: First. ...