Ables v. Webb

• Decision Date: 15 February 1905
• Citation: 186 Mo. 233,85 S.W. 383
• Parties: ABLES v. WEBB et al.
• Court: Missouri Supreme Court

85 S.W. 383

186 Mo. 233

ABLES v. WEBB et al.

Supreme Court of Missouri. Division No. 1.

February 15, 1905.

JUSTICE'S JUDGMENT — TRANSCRIPT — EXECUTION — EJECTMENT — COLLATERAL ATTACK — ESTOPPEL.

1. Rev. St. 1899, § 4019, provides, relative to the issuance of an execution from the circuit court on a justice's transcript, that no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable "of the township in which the defendant resides," if there be one in such township, and, if not, to any constable in the county, and returned that the defendant had no goods or chattels whereof to levy the same. Held, that a sale of land on execution issued on a justice's transcript cannot be attacked collaterally on the ground that the justice's execution was issued to the wrong constable.

2. Under such statute a sale of real estate on execution based on a justice's transcript cannot be collaterally attacked because the justice's execution was returned before the return day.

3. A return to a justice's execution, reciting certain garnishment proceedings, and concluding, "By returning this writ no other property found upon which to levy this writ," was a sufficient return nulla bona within the statute.

4. Plaintiff in ejectment cannot recover on an equitable title.

5. Where, after a judgment creditor purchased land at sale under execution based on the judgment, his interest in the land was sold under execution against him, and thereafter he caused the land to be again sold under an execution based on his judgment, and plaintiff purchased it, and on motion the judgment creditor was awarded the proceeds, the purchaser on the second sale was not estopped to assert title against plaintiff, such purchaser having been no party to the motion and order for the third levy.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Mary I. Ables against Thomas Webb and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Thomas & Hackney, for appellant. Paul F. Coste, O. D. Royse, and Howard Gray, for respondents.

LAMM, J.

This is a suit in ejectment to recover of Webb, a tenant, and the Leonard Mercantile & Realty Company, his landlord, the S. W. quarter of section 23, township 28, range 32, lying in Jasper county, Mo., on a petition, in common form, laying the ouster at an unnamed day in 1894; the answer, a general denial.

At the trial it was admitted the defendants were in possession; that the plaintiff had been ousted; that plaintiff, if entitled to recover, could recover only an undivided half interest in the land; that defendants denied her co-tenancy; and that plaintiff's husband had been dead 15 years when she instituted her suit.

Though plaintiff had been discovert for 15 years, and though her cause of action, if any, accrued under a sheriff's deed executed on October 10, 1878, yet, as there was no such actual, open, unbroken, and adverse possession in defendants and those under whom they held as to create a title by mere flux of time, the testimony on that branch of the case becomes immaterial.

Plaintiff, to show legal title and present possessory right in her, put in evidence the following duly recorded muniments of title: (1) A patent from the United States to David E. Moter, dated in 1873. (2) A warranty deed from said Moter to John Ables and Thomas F. Phillips, dated in 1875. (3) A deed from Beamer, sheriff of Jasper county, to plaintiff, dated October 10, 1878, reciting that one W. A. Moter recovered judgment in the common pleas court of Jasper county on the 5th day of January, 1877, against Thomas F. Phillips, John Ables, and A. B. Parkell, for $35.70 and costs, on which execution issued on May 30, 1878, levy made on September 10, 1878, seizing the right, title, and interest of said Phillips and Ables in lots 1, 2, 3, and 4 in Regans' Addition to the city of Carthage, and also an undivided half interest in the real estate sued for, a sale made in bulk on October 7, 1878, to plaintiff, as the highest bidder, for $83.31, and a conveyance of the estate of Ables & Phillips in all said real estate to plaintiff. (This title deed will be hereinafter referred to as "Conveyance A" for convenience of identification.) Plaintiff then rested.

Defendants put in evidence the following duly recorded title papers to show legal title and present possessory right in them: (1) A deed from said Beamer, as sheriff, dated January 16, 1878, reciting the same judgment referred to in conveyance A; the issue of execution on October 23, 1877; a levy as of October 26, 1877, on the right, title, and interest of the judgment defendant Thos. F. Phillips in the real estate in question, together with his interest in certain lots in Holmans', in Bulgins', and in Elizabeth James' Additions to the city of Carthage; a sale made in bulk to the judgment creditor, W. A. Moter, as the highest bidder, for $7.50; and the conveyance of the estate of said Thos. F. Phillips in all said real estate to said W. A. Moter. (For convenience this deed will be hereinafter referred to as "Conveyance B.") (2) A deed from said Beamer, sheriff, to one James P. Betts, dated September 18, 1878, reciting that three Cohns recovered judgment against W. A. Moter before one Tuttle, a justice of the peace of Marion township, Jasper county, for $28.45, on January 12, 1877; that a transcript was filed in the office of the circuit clerk of said county on February 2, 1877; an execution issued from said office on August 7, 1878; a levy as of August 17th, seizing the interest of said Moter in the real estate sued for; a sale made on September 16, 1878, to James P. Betts, as the highest bidder, for $8.50; and a conveyance of the estate of said Moter in said land to said Betts. (For convenience this deed will be hereinafter referred to as "C.") (3) A deed from said Betts to one Hall, conveying whatever title he acquired under C, of date August 4, 1879. (4) A deed from John Ables to Thomas F. Phillips, conveying his undivided half of the real estate in suit, under date of December 21, 1876. (5) A deed of trust from Thos. F. Phillips, dated June 1, 1877, conveying the said real estate to Wilson, trustee for Clark, and securing money loaned. (Hereinafter referred to as "Conveyance D.") (6) A trustee's deed, reciting the foreclosure of D, executed by Thomas, successor to Wilson, trustee, dated September 14, 1878, and conveying the land to said Hall. (7) A deed for the same premises from said Hall on August 28, 1893, to the Homestead Land Company, and a deed from said company to the defendant company dated October 25, 1898.

To fortify the sheriff's deed evidenced by C, the defendants introduced the following: (8) The transcript of Tuttle, justice of the peace, filed as aforesaid, showing a judgment in due form on proper service in favor of the said Cohns against W. A. Moter, and narrating, inter alia, that an execution had issued thereon from the justice court on January 12, 1877, returnable in 60 days. (9) The execution itself, directed to the constable of Marion township, Jasper county, dated January 12, 1877. (10) The return, dated March 12, 1877, indorsed on said execution by said constable, which return set forth a garnishment of John Ables and Frank Phillips, and concludes thus: "By returning this writ no other property found upon which to levy this writ." (11) And further introduced the summons to said garnishees, dated January 12, 1877, commanding them to appear January 18, 1877, before said justice of the peace and answer interrogatories, with the return thereon showing service. (12) Defendants also introduced oral testimony tending to show that nothing was paid on the justice execution.

In rebuttal, plaintiff introduced oral testimony tending to show that W. A. Moter, on the date of the justice execution in Cohn et al. v. Moter, and thereafter, resided in Union township, Jasper county, instead of Marion township; also the written answer of John Ables, as garnishee, admitting for himself and his co-garnishee, Phillips, an indebtedness to Moter, on a blank date in 1877, in the sum of $35, which answer was sworn to at a date obliterated; and also introduced record evidence establishing the fact that Moter came into the said common pleas court on December 7, 1878, and filed his motion to have the proceeds of the sale under which plaintiff bought by conveyance A paid over to him by the sheriff, and procured an order and got the proceeds.

Defendants prayed no instructions. The plaintiff prayed three: One, a peremptory declaration in her favor; another, in effect asking the court to declare the law to be that if Moter was a resident of Union township, instead of Marion township, from January 12, 1877, to September 16, 1877 (covering...