Ammerman v. Linton
| Decision Date | 09 July 1919 |
| Parties | J. E. AMMERMAN v. WILLIAM LINTON, CHARLES W. KIRBY and ADDA KIRBY; C. W. DURRETT, Intervener, Appellant |
| Court | Missouri Supreme Court |
Appeal from Knox Circuit Court. -- Hon. Charles D. Stewart, Judge.
Affirmed.
J. C Dorian, Boyd & McKinley, O'Harras, Wood & Walker, and C W. Durett for appellant.
(1) The plaintiff has failed to establish a consecutive chain of title indicating a legal title to the premises in question. Had he introduced the judgment secured in the first foreclosure proceedings, on which his execution and deed is based, it would have shown on its face that the judgment was void. (a) The judgment and decree in the first suit brought by the First National Bank of Stronghurst, Illinois, on April 12, 1911, was based upon the fact that Charles W. Kirby was the owner of an estate by the entirety and it authorized the sale of such an estate and that was the estate that was attempted to be sold under that judgment. First National Bank v. Kirby, 175 S.W. 926; First National Bank v Kirby, 190 S.W. 600. (b) The Circuit Court of Knox County was without jurisdiction to authorize the sale of a tenant's interest in an estate by the entirety and its action in authorizing the sale of Kirby's interest as such a tenant by the entirety in that judgment and decree was void. Otto F. Stifel's Union Brewing Co. v. Saxy, 201 S.W. (Mo.), 67; Ashbaugh v. Ashbaugh, 201 S.W. (Mo.), 72. (c) Had plaintiff introduced the judgment in the original foreclosure proceedings, it would have shown that the judgment was void for the reason that there was no definite amount found to be due at the date of the judgment, which the defendant in that cause was entitled to have an opportunity to pay in order to prevent a sale. Rumsey v. People's Railway Co., 144 Mo. 175; Black on Judgments (2 Ed.), sec. 3, p. 8; Black on Judgments (2 Ed.), sec. 118, p. 168; 24 Cyc. 10; Railway Co. v. Fosdick, 106 U.S. 47; 5 Am. & Eng. Ency. Law, p. 376; Boone on Mortgages, sec. 189; Milhim v. Hawkeye Ins. Co., 171 Ill.App. 262; Thompkins v. Wiltberger, 56 Ill. 385. The judgment in question did not conform to the statute. Sec. 2834, 2836, 2837, R. S. 1909; Fithian v. Monks, 43 Mo. 520. (d) The effect of a general and unqualified setting aside of a judgment, order or decree is to nullify it completely and to leave the case standing as if such judgment or decree had never been rendered. Campbell v. Kauffman, 127 Mo.App. 287; Moore v. Damon, 4 Mo.App. 111; Atkison v. Dixon, 96 Mo. 577; 3 Cyc. 460; 4 Corpus Juris, p. 1204. (e) No title passes under or by virtue of an execution and sale following a void judgment. Janny v. Speldon, 38 Mo. 395; McNair v. Biddle, 8 Mo. 264; Otto F. Stifel's Union Brewing Co. v. Saxy, 201 S.W. (Mo.), 67; Knapp, Stout & Co. v. City of St. Louis, 156 Mo. 343; Macke v. Bird, 131 Mo. 682. (2) The special execution issued on the judgment recovered in the first suit brought by First National Bank v. Kirby was issued on the 6th day of November, 1913, and it provided that a return should be made "before the judge of our said court on the second Monday in December next," and was, therefore, dead or functus officio on the date of the sale to plaintiff, June 3, 1914. Secs. 2175, 2195, 2199, R. S. 1909; City of Aurora v. Lindsey, 146 Mo. 509; Jones v. Howard, 142 Mo. 117; St. Louis Brewing Assn. v. Howard, 150 Mo. 445; Stewart v. Severance, 43 Mo. 331; Bank v. Bray, 37 Mo. 194; Lackey v. Lubke, 36 Mo. 124; Wack v. Stevenson, 54 Mo. 485; Butler v. Imhoff, 238 Mo. 598. (3) A levy was essential, as the instrument sued on was not acknowledged and hence not entitled to record. Its record was unauthorized. Secs. 2794, 2797, 2798, 2809, 2810, 2811, 10381, R. S. 1909; Rivard v. Mo. Pac. Ry. Co., 257 Mo. 135; German v. Real Estate Co., 150 Mo. 570; Williams v. Butterfield, 182 Mo. 181; Bishop v. Schneider, 46 Mo. 472; Stierlin v. Daley, 37 Mo. 484; First National Bank v. Kirby, 175 S.W. 926; First National Bank v. Kirby, 190 S.W. 597; Sec. 2228, R. S. 1909; Butler v. Imhoff, 238 Mo. 598.
W. C. Ivins and F. H. McCullough for respondent.
(1) In ejectment, the right of possession alone is determined, and that is settled by the record title, or by title by limitation based upon possession. McAnaw v. Clark, 167 Mo. 443; Richardson v. Dell, 191 S.W. 64. (2) The recitals in the deed of the sheriff conveying the land to respondent, are presumptive evidence of the existence of the judgment and execution and the other facts recited in the deed, and in an action of ejectment the plaintiff need not produce the judgment and execution. R. S. 1909, sec. 2231; McCormick v. Fitzmorris, 39 Mo. 24; Samuels v. Shelton, 48 Mo. 445; Jordan v. Surghnor, 107 Mo. 520; Scharff v. McGaugh, 205 Mo. 344; Butler v. Imhoff, 238 Mo. 584. (3) Mere irregularities or defects are not sufficient to invalidate a sheriff's deed. Emory v. Joice, 70 Mo. 537; Dunn v. Miller, 8 Mo.App. 467. (4) Irregularities in the judgment, sale or sheriff's deed cannot be taken advantage of in a collateral proceeding, but only in a direct application for that purpose. Reed v. Austin's Heirs, 9 Mo. 722; Waddell v. Williams, 50 Mo. 216. (5) Under the statute, where a sale is not made at the first term of the court after the issue of the execution, said execution continues in force until the end of the second term thereafter. R. S. 1909, sec. 2228; Lackey v. Lubke, 36 Mo. 122; Butler v. Imhoff, 238 Mo. 584. (6) The real estate was charged with the lien of the judgment, hence no notice of levy or other proceeding was necessary. The execution was simply a direction to the sheriff to foreclose that lien. R. S. 1909, sec. 2199; Smith v. Thompson, 169 Mo. 553; Brewing Assn. v. Howard, 150 Mo. 445. (7) A judgment may be erroneous or defective as a personal judgment and yet be valid as a judgment of foreclosure. Trumbo v. Flournoy, 77 Mo.App. 324; Hoskinson v. Adkins, 77 Mo. 537; Hagerman v. Sutton, 91 Mo. 519. (8) The question of interest of tenant by entirety does not enter into this case, because appellant Adda states in her answer, filed in this cause, that she only owns inchoate dower in the lands. (9) As between the judgment creditor and appellant, Charles W. Kirby, and those claiming under him, the judgment in Case No. 6901 was conclusive. It was final and no appeal was taken. Murphy v. De France, 101 Mo. 151. (10) The validity of the sheriff's deed depends, only, upon whether or not it contains all essential recitals; it recites the names of the parties to the execution, the date the execution issued, the date of the judgment, the description of the land, and the time, manner and place of the sale. The above are the only essential recitals; all others are simply directory. Wilhite v. Wilhite, 53 Mo. 71; Gaines et al. v. Fender, 82 Mo. 507; Davis v. Kline, 76 Mo. 312; Sec. 2231, R. S. 1909.
Action in ejectment, by petition in ordinary form. Defendant Adda Kirby answered: (1) by a general denial; (2) she avers that the right of possession is in one C. W. Durrett, stating the facts from which such conclusion is drawn. Defendant Charles W. Kirby, answers (1) by a general denial as to all matters not expressly admitted, and (2) admits that he was the former owner in fee of the land, but avers that C. W. Durrett is now the owner and entitled to the possession thereof. Defendant Linton was a tenant of Charles W. Kirby, and so answers, stating the terms of the tenancy.
C. W. Durrett, by leave of court, filed an intervening petition, by which he claimed title and the right of possession to said land by and through a trustee's deed under a foreclosure of a deed of trust executed by Charles W. Kirby, to Calvin Carder, trustee, of date March 22, 1911. The answer to Durrett, and replies to answers of defendants, were general denials. Plaintiff had judgment and the intervening petitioner, Durrett, has appealed.
Actions touching the issues involved in the instant case have been in this court heretofore. [Bank v. Kirby, 175 S.W. 926; Bank v. Kirby, 190 S.W. 597.] The records and judgments in these two cases are inter-woven in the facts of the instant case. They are also, in a way, injected into the pleadings of this case. A historical review of the whole transaction will not be without good purpose.
Charles W. Kirby and his wife, Adda Kirby, lived at Stronghurst Illinois, October 15, 1909, they executed and delivered to Elmer E. Taylor, notes aggregating $ 7500, which they attempted to secure by mortgage on 200 acres of land in Knox County, Missouri, the land involved in the instant suit. Taylor assigned the notes and mortgage to the First National Bank of Stronghurst, April 12, 1911, and said bank brought suit in the Circuit Court of Knox County to foreclose this mortgage, and Kirby and wife, supra, were the defendants. This was Cause No. 6901 in the Circuit Court of Knox County, and upon appeal here, by plaintiff, it was this land as an estate by the entirety. So it seems to have been tried below, and so it was treated here. We find upon looking at the old abstract it was admitted to be an estate by the entirety. When here we ruled that the circuit court properly found that the mortgage had not been acknowledged, but as the estate was one by entirety the mortgage was good as between the parties, and could be foreclosed. We also ruled that there was no final judgment against Adda Kirby and that the suit was prematurely brought. ...
To continue reading
Request your trial