Allen v. Sales

• Decision Date: 28 February 1874
• Citation: 56 Mo. 28
• Parties: RUFUS K. ALLEN, Respondent, v. STEPHEN SALES, AND FREDERICK W. SMITH, Appellants.
• Court: Missouri Supreme Court

56 Mo. 28

RUFUS K. ALLEN, Respondent,

v.STEPHEN SALES, AND FREDERICK W. SMITH, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Common Pleas.

Loan & Van Waters, for Appellants.

I. The interlineations were not part of the June Term judgments and were void. Hence the special executions directing sale of the leasehold were also void.

II. There was no proof of the filing of the liens or commencement of the suits which resulted in the judgment.

III. The sheriff's deed should have been excluded. It recited three judgments and three executions, when it was shown that no such judgments or executions ever issued.

IV. Estoppel in pais will not support ejectment.

V. Long prior to the judgments Cowan had surrendered his lease to Smith. (Fitzgerald vs. Hayward, 50 Mo., 516.) the judgments, if valid, were liens only from their date.

Hill & Carter, for Respondent.

I. The execution sale to Smith could not be attacked collaterally in this suit. (Durham vs. Heaton, 28 Ill., 264; Winston vs. Affalter, 49 Mo., 263; Wales vs. Bogne, 31 Ill., 464; Bonsal vs. Isett, 14 Iowa, 309; Draper vs. Bryson, 17 Mo., 71; Hendrickson's Admr. vs. St. L. & I. M. R. R., 34 Mo., 188; Lawrence vs. Speed, 2 Bibb., 401; Webber vs. Cox, 6 Monr., 110; Landes vs. Perkins, 12 Mo., 260-1.)

II. The sheriff's deed contains all necessary statutory recitals to pass title, and is evidence of the facts recited. (Wagn. Stat., 612, § 54; McCormick vs. Fitzmorris, 39 Mo., 24; Bank, etc. vs. Harrison, 39 Mo., 433; Samuels vs. Shelton, 48 Mo., 444.)

III. The judgments were valid till set aside in a direct proceeding. (Swiggart vs. Harber, 4 Scam. Ill., 364.)

IV. Smith did not pretend to buy back the lease till after the liens had attached and the building was fully completed.

V. The judgments dated back to the date of commencing the improvements (Wagn. Stat., 109, § 7), and would hold the unexpired leasehold. (Wagn. Stat., 908-9, § 4; Page vs. Hill, 11 Mo., 149; DuBois, Admr. vs. Wilson, 21 Mo., 213.)

VI. Smith admitted the execution of the lease, and that he told Allen before the latter commenced building, that he had leased the lot to Cowan. He interposed no objection to the work going on, hence he is estopped from denying Cowan's tenancy. (See Lindell vs. McLaughlin, 30 Mo., 28; Newman vs. Hook, 27 Mo., 207; Dezell vs. O'Dell, 3 Hill., 219; Taylor vs. Zepp, 14 Mo., 482; Blair vs. Smith, 16 Mo., 273; Chouteau vs. Goddin, 39 Mo., 250; Bunce vs. Beck, 43 Mo., 266; 46 Mo., 327; Rutherford vs. Tracy, 48 Mo., 325.)

NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment to recover a leasehold property in the City of St. Joseph. The plaintiff's title was derived from certain judgments, executions, and a sheriff's deed. There were three judgments all rendered at the June term 1871, one in favor of James M. Bedbury, and George Zettner vs. Samuel F. Cowan, for $1271.32; one in favor of Rufus K. Allen vs. Cowan, for $3110.54; and a third in favor of Francis M. Scott vs. Cowan, $185. These judgments were all to the effect, that they were to be levied of the goods and chattles, lands and tenements of said defendants, and if no sufficient property could be found to satisfy them, to be levied on the property of said defendant charged with the lien of the plaintiff, and described as follows: “A three story frame house containing about thirty rooms, known as the Missouri Valley House, and used as a hotel, and situated and erected on lot No. 8, block No. 8, in Smith's addition to the City of St. Joseph, County of Buchanan, State of Missouri, and also the unexpired leasehold term of said defendant, in and to said lot and real estate,” and a special execution was ordered.

These judgments were objected to by defendants on the ground, that on the face of the entries the words, “and also the unexpired leasehold term of said defendant in and to said lot and real estate,” were interlined in the record; and it appeared further upon the examination of a witness, that the record of these judgments at the June term, did not have these interlineations, and that they were subsequently made by an employee of the clerk, at the request of a lawyer, who said the judge or court had so ordered.

It appears from the testimony of the clerk that this change in the judgment of the June term 1871, was made by order of the court, and on the motion of the plaintiff. It seems that subsequently to the June term,execution then had been issued on the judgments as they then stood on the record, and had been levied and returns made by the sheriff; but the plaintiff at the August term succeeding, moved to quash these executions and to correct the judgments, so that they should embrace the unexpired lease of defendant on the lot on which the building had been erected, in accordance with the 4th section of the mechanic's lien law. This motion was sustained, the first executions were quashed, and the record of the judgment so amended as to make the judgments embrace the unexpired term of the lease. The amendment was made by interlineation and by a clerk employed in the office to make up the books, and it was made at the August term.

The executions read in evidence by the plaintiff were regular, and need not be recited.

Objections were made to the sheriff's deed. The part objected to reads thus: “Whereas on the 7th day of June, 1871, three judgments were rendered and entered in the Circuit Court within and for the county of Buchanan and State of Missouri, and in favor of Francis M. Scott, Rufus K. Allen, James M. Bedbury and John Zettner, and against Samuel F. Cowan, for forty-five hundred and ninety-six dollars, and eighty-six cents, for their demand, and also for the further sum of six dollars and ninety cents, which to the said Francis M. Scott, Rufus K. Allen, James M. Bedbury and John Zettner, was adjudged for their costs and charges in that behalf expended, as appeared of record in said Circuit Court; and whereas afterwards, to-wit; on the 14th day of Sept., 1871, three special executions, were issued from the office of the clerk of said court, in favor of the said Francis M. Scott, Rufus K. Allen, James M. Bedbury and John Zettner, and against the said Samuel F. Cowan, upon the said judgments, dated the 7th day of June, 1871, directed to the said sheriff of the county of Buchanan, and to me the said sheriff delivered; by virtue of which said writs or special executions, I as sheriff, as aforesaid, was directed and commanded to sell all the right, title, interest, claim, estate and property, of the said Samuel F. Cowan, of, in and to the following described real estate, situated and being in said county, to-wit, and charged with the liens of the said Francis M. Scott, Rufus K. Allen, James Bedbury and John Zettner, a three story hotel building, erected on lot 8, in block 8, in Smith's addition to the City of St. Joseph, known as the Missouri Valley House, and also the unexpired leasehold term of the said Samuel F. Cowan, of in and to said lot on which said building is situated, and whereas, &c.” It appears from the evidence of the clerk, to which no objections were made, that the liens in these cases were filed Jany. 9th, 1871; and the petitions on them Jany. 12th, 1871.

The plaintiff claimed title under the judgments, executions and sheriff's deed above stated.

The ejectment suit was originally against Sales, but Smith the owner of the lot, was at his instance made a defendant. The defendant Smith had executed a lease to Cowan, for 10 years from May 1st, 1870; whether this lease was ever delivered to Cowan, is a disputed question of facts, concerning which there was evidence on both sides.

However this may be, it seems admitted, that about this time in April or May, 1870, Allen the plaintiff, who was a house-builder, made a contract with Cowan, for the erection of this hotel building, and proceeded in connection with other contractors to furnish the materials and put up the building during the summer and fall of that year. The suits of Allen vs. Cowan, Scott vs. Cowan, Bedbury & Zettner vs. Cowan, were based on the liens thus acquired, and were commenced in January, 1871. Anterior to these suits, on the 27th of Sept. 1870, prior to the completion of the building, Cowan, by a writing indorsed on his lease from Smith, surrendered said lease and all his rights under it to Smith, in consideration of $2,300, which was the principal and interest of the money Smith had advanced to or procured for Cowan when the lease was executed, in order to enable Cowan to procure the erection of the hotel. There was evidence concerning a lease from Cowan to Sales, (the defendant) and of Sales attorning subsequently to Smith after the surrender of Cowan's lease from Smith, but the questions of law presented by the case, and which alone we propose to consider, do not require any detailed statement of this and a variety of other oral testimony.

The court instructed the jury: 1st. If the jury believe from the evidence that the lease from F. W. Smith to Sam. F. Cowan, for lot 8, in block 8, in Smith's addition to the City of St. Joseph, was duly delivered to said Cowan, or that said Smith told plaintiff that he had leased said lot to Cowan for a term of 10 years, and that plaintiff, relying on such statement, thereafter, under contract with said Cowan, erected the Missouri Valley House on said lot with the knowledge of Smith, and without objection on the part of said Smith, and that defendant Sales went into possession of said premises as the tenant of said Cowan; that the said lease by the defendant Smith to the said Cowan, for ten years, together with the judgments, executions, reports of sale and sheriff's deed of said property, read in evidence, prima facie entitle plai...