Huff v. Morton

• Decision Date: 05 March 1888
• Citation: 94 Mo. 405,7 S.W. 283
• Parties: HUFF v. MORTON et al.
• Court: Missouri Supreme Court

7 S.W. 283

94 Mo. 405

HUFF v. MORTON et al.

Supreme Court of Missouri.

March 5, 1888.

JUDGMENT — LIEN — CONTINUATION OF — VENDITIONI EXPONAS.

A judgment was rendered against the maker of a deed of trust, prior to the execution thereof. A writ of fi. fa. issued returnable to the next term, but was returned "not satisfied." Thereupon the court ordered a writ of vend. ex. to issue, and the writ was issued reciting the execution, levy, etc., and the sale was made at the next ensuing term of the court. The lien of the judgment would have expired between the time of the order for the writ of vend. ex. and the issuing thereof. Rev. St. Mo. 1879, § 2389, provides that, "when a sale shall not be made under execution and levy at the next term of the court, the execution and lien thereby created shall continue in force until the end of the second term, and until a term of the court is held at which there may be a sale according to law." Held, that the title of the purchaser at the sheriff's sale was superior to that of the party claiming under a deed from the trustee of the foregoing deed of trust.

Appeal from circuit court, Johnson county; NOAH M. GIVEN, Judge.

Action of ejectment by Richard Huff, defendant in error, against Joseph Morton and Northwestern Mutual Life Insurance Company, plaintiffs in error.

Smith, Silver & Brown and W. S. Shirk, for plaintiffs in error. W. W. Wood, for defendant in error.

BRACE, J.

A statement of this case, which is now before this court for the second time, will be found in the former opinion rendered at the October term, 1884, Huff v. Morton, 83 Mo. 399. The only new feature presented in this record results from the introduction by the defendants on the retrial of a deed of trust, from M. W. Foster to Wallace Pratt, trustee, dated December 20, 1872, and a deed from said trustee to defendant, the Northwestern Mutual Insurance Company, lessor of its co-defendant, Morton, dated August 2, 1874. The introduction of these deeds, and claim of title under them by defendant, renders it unnecessary to notice the defects alleged to exist in plaintiff's claim of title from the government to Foster, he being the common source of title from whom both parties claim. Smith v. Lindsey, 89 Mo. 76, 1 S. W. Rep. 88; Miller v. Hardin, 64 Mo. 546. The court held that the plaintiff's title under the sheriff's deed and sale, made on the 25th of February, 1874, was superior to that of the defendant under the deed of trust of Foster of December 20, 1872, and, in so holding, the court was right. The judgment against Foster was rendered December 23, 1870. On the 2d day of October, 1873, a fieri facias was issued thereon, and on the same day levied on the premises in controversy. The writ was returnable to the October term following. At the return term the sale was stopped at the request of the attorneys for the plaintiff and defendant in the execution, and the writ returned "not satisfied," the return showing the levy and the reason why the sale was not made. Thereupon the court ordered that a writ of venditioni exponas issue for a sale of the premises. On the 23d day of January, 1874, the writ issued, reciting the execution, levy, return, and order, and the sale was made at the February term, that being the next ensuing regular term of the court after the October term. The lien of the judgment...