Ables v. Webb
| Decision Date | 15 February 1905 |
| Citation | 85 S.W. 383,186 Mo. 233 |
| Parties | MARY I. ABLES, Appellant, v. THOMAS WEBB and LEONARD MERCANTILE & REALTY COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.
Affirmed.
Thomas & Hackney for appellant.
(1) The judgment in favor of W. A. Moter against Thos. F. Phillips John Ables and others in the common pleas court of Jasper county, dated January 5, 1877, became and was a lien on all the interest of the judgment defendants in the real estate in controversy, and continued a lien for a period of three years from date, and was a subsisting lien on the property at the date of the execution by Phillips of the deed of trust to Wilson, trustee for Martha E. Clark, filed for record June 25, 1877, and an execution having been issued on said judgment, within the three years, to-wit, on May 30, 1878 and the land sold to plaintiff on October 7, 1878, the title acquired by plaintiff under such purchase is superior to the title acquired by defendants under the foreclosure sale of the deed of trust aforesaid. Wherever a valid lien is in existence, its foreclosure wipes out of existence all title subsequent in date to it. Durrett v. Hulse, 67 Mo 201; Meier v. Meier, 105 Mo. 428; Huff v. Morton, 94 Mo. 410; Hicks v. Ellis, 65 Mo. 176; Stewart v. Severance, 43 Mo. 322; Wood v. Messerly, 46 Mo. 255; Slatterly v. Jones, 96 Mo. 225. (2) The defendants, as well as W. A. Moter, are estopped from claiming that Moter obtained any title to the real estate in controversy by his purchase for $ 7.50 at the sheriff's sale under execution in his favor on January 14, 1878. After having bid in this property under a levy on all right, title and interest of Phillips, he caused a second execution to be issued against the same parties on the same judgment, and caused the sheriff to levy on the undivided one-half interest in the land in controversy as the property of Phillips and Ables, and caused the same to be advertised and sold by the sheriff, at which sale Mary I. Ables, the plaintiff, purchased the property for the sum of $ 83.31, after which, the sheriff's deed was duly delivered to her and recorded. Moter, the plaintiff in that action, then filed his motion in court to receive and did receive the proceeds of the last-named sale. This deed, and the record on which it is based, forever preclude and estop Moter, and those claiming under him, from setting up title acquired from the same source and held by Moter at the time of the last-named purchase, and they are precluded from denying that Phillips and Ables were the owners of the undivided one-half interest in the property at the time of the sale by the sheriff to the plaintiff. Gilkerson v. Knight, 71 Mo. 406; Field v Langsdorf, 43 Mo. 32; Rice v. Bunce, 49 Mo. 231; Austin v. Loring, 63 Mo. 22; Guffey v. O'Reiley, 88 Mo. 418. (3) The sheriff's deed to James P. Betts, in case of Cohn v. Moter, conveyed no title. The transcript execution issued by the circuit court clerk on the transcript judgment in said cause was issued without authority and is void for these reasons: First. Because W. A. Moter was a resident of Union township and the execution issued by the justice was directed to the constable of Marion township instead of Union township. Second. The return of the constable on this execution to Marion township was premature. The execution was issued January 12, 1877, returnable in sixty days, and was returned on the fifty-ninth day, March 12, 1877. Third. The return of the constable on the execution issued by the justice is not sufficient to constitute a nulla bona return. Sec. 14, 2 Wag. Stat., now sec. 4019, R. S. 1899. Until an execution has been issued by the justice, directed to the township where defendant resides, and until the execution so issued has remained in the hands of the constable for the life of the execution, and until the execution thus issued has been at the proper time returned by the officer that the defendant had no goods or chattels whereof to levy the same, an execution issued by the circuit clerk is absolutely void and not simply voidable, and a sale thereunder passes no title. Langford v. Few, 146 Mo. 142; Reed v. Lowe, 163 Mo. 519. (4) The plaintiff's title is a legal and not an equitable title. The plaintiff claims title directly from Phillips and Ables. She does not claim title through Moter. By virtue of the estoppel invoked by the plaintiff against Moter and the defendants, the defendants are precluded from setting up title under Moter and precluded from asserting that Moter ever acquired any title whatever to the undivided half interest in the land in controversy in this suit by virtue of the first sheriff's sale. If, as a necessary link in the plaintiff's chain, she was compelled to admit that the legal title at any time became vested in Moter, and if she then sought to divest Moter of title by virtue of an estoppel, there would be ground for contending that her title was an equitable and not a legal one, and that she must first resort to a court of equity and cause the legal title to be divested out of Moter before she could maintain ejectment. But in this case, if effect is given to this estoppel, there is no occasion nor necessity for plaintiff to resort to a proceeding in equity to divest Moter of title. Such action on plaintiff's part would be inconsistent with the very estoppel invoked. It would be in effect admitting away half of the estoppel. Giving full effect to the estoppel, Moter and the defendants are precluded from setting up the first sale for any purpose until full effect and operation is given to the sheriff's deed to plaintiff. They are precluded from asserting that the first sheriff's deed was valid to convey to Moter any title inconsistent with the title acquired by plaintiff under the second sheriff's sale; hence, are precluded from denying that the second sheriff's sale, under which the plaintiff purchased, passed to her the better title to the undivided one-half interest claimed. Courts of law take cognizance of many estoppels and, on a title supported by an estoppel of the character invoked in this case, an action of ejectment may be maintained. Stoddard v. Chambers, 2 How. (U.S.) 317; Harvey v. Carlisle, 23 Ala. 635. Plaintiff's title is based on the judgment, sale under execution, and sheriff's deed conveying to her the one-half interest. The defense is that the execution creditor had previously sold and bought the same title. To this defense the estoppel is offered. The estoppel is thus used defensively, not as a creation of title. Allen v. Sales, 56 Mo. 37.
Paul F. Coste, O. D. Royse and Howard Gray for respondents.
(1) The deed of the sheriff of January 16, 1878, conveyed to W. A. Moter the legal title to the land in controversy, and whether or not the sheriff's deed under the execution based on the judgment of the justice conveyed the Moter title to the grantors of defendant, the plaintiff has never acquired the legal title of Moter and, therefore, cannot recover. Hunt v. Selleck, 118 Mo. 588; Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106; King & Co. v. Seivers, 43 Mo. 519; Clay v. Mayr, 144 Mo. 376; Turner v. Baker, 64 Mo. 218. (2) The sheriff's deed having placed the legal title in W. A. Moter, appellant bases her right to recover on the theory that Moter and his assigns are estopped from claiming under that deed because he afterwards had the property sold again on the same judgment. Ejectment cannot be maintained upon a title acquired by estoppel. Turner v. Baker, 64 Mo. 218; Allen v. Sales, 56 Mo. 28; Hays v. Levingston, 34 Mich. 384; Nix v. Collins, 65 Ga. 219; Percival v. Platt, 36 Ark. 456; Suttle v. Railroad, 76 Va. 284; Winters v. White, 70 Md. 305; McCleod v. Bishop (Ala.), 20 So. 130; Stone v. Perkins, 85 F. 616; Walker v. Keynote, 32 Iowa 524; Roundtree v. Little, 54 Ill. 323; Foster v. Mora, 98 U.S. 425; VanKirk L. & Construction Co. v. Green, 31 So. 484; Betz v. Mullen, 62 Ala. 365. It is true in this State that defendant in ejectment can file answer setting up an equitable defense, as our statute expressly permits it. Sec. 605, R. S. 1899; Chouteau v. Gibson, 76 Mo. 38. (3) Before appellant can successfully invoke the principle of estoppel, she must show that she was induced by the acts and conduct of W. A. Moter to buy the premises in controversy, and that she would not have done so but for such conduct, and she must also show that she has been injured by his conduct. Blodgett v. Perry, 97 Mo. 263; Bramell v. Adams, 146 Mo. 70; Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63; Noble v. Blount, 77 Mo. 235; State ex rel. v. Branch, 151 Mo. 622; Kelly v. Hendricks, 57 Ala. 193. (4) The justice judgment was rendered January 12, 1877, the execution returnable in sixty days, as the law directed, and was returned on the fifty-ninth day, or March 12, 1877. It seems that the constable lost sight of the fact that February only had twenty-eight days. Everything else being regular, as the record in this case shows, the sheriff's deed passed the title. Whitman v. Taylor & Caldwell Co., 60 Mo. 127; Pullis v. Pullis, 157 Mo. 592; Waddell v. Williams, 50 Mo. 221; Sachse v. Clingingsmith, 97 Mo. 406. (5) The return of the constable is: "no other property found upon which to levy this writ." This is sufficient, as the law only requires that the return express to a reasonable certainty that the officer did what the law asks of him. State ex rel. v. Still, 11 Mo.App. 282; Franse v. Owens, 25 Mo. 329.
This is a suit in ejectment to recover of Webb, tenant, and the Leonard Mercantile and Realty Company, his landlord, the southwest quarter of section 23, township 28, range 32, lying in Jasper county, Missouri,...
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