Barnes v. Imhoff

• Decision Date: 06 December 1913
• Citation: 254 Mo. 217,162 S.W. 152
• Parties: BARNES et al. v. IMHOFF.
• Court: Missouri Supreme Court

162 S.W. 152

254 Mo. 217

BARNES et al. v. IMHOFF.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

Rehearing Denied January 3, 1914.

1. EVIDENCE (§ 178) — PAROL EVIDENCE — LOST INSTRUMENTS — EXECUTION.

In ejectment for land sold under an execution which had been lost, parol evidence of the fact that execution had been issued on the judgment and was levied on a specified section of land prior to the September, 1900, term of the New Madrid circuit court was admissible, notwithstanding the writ had not been supplied as provided by Rev. St. 1909, §§ 10,422 and 10,423.

2. EXECUTION (§ 116) — LEVY — CONTINUANCE — "UNSATISFIED."

Where the sheriff of N. county levied on a specified section of land prior to the beginning of the September, 1900, term of the circuit court of such county, the lien was kept alive until sale under the execution, as provided by Rev. St. 1909, § 2228, regardless of any effort the sheriff might have made to return the execution, and this notwithstanding the word "unsatisfied" was entered in the execution docket opposite the record of the judgment, since such word without more did not imply that there had been a return of the execution, but merely that it had not been paid.

3. TRUSTS (§ 102) — CONSTRUCTIVE TRUST — FIDUCIARY RELATION.

In ejectment for land sold under execution to C. and through him by mesne conveyances to plaintiffs, evidence held insufficient to show that C. was defendant's attorney prior to the sale, and that his purchase of the land was a breach of his fiduciary relation, so as to charge him and his subsequent vendees as trustees of the title for defendant.

Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.

Action by Harriett B. Barnes and others against Jacob Imhoff. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 238 Mo. 598, 142 S. W. 291.

Wilson Cramer, of Jackson, for appellant. Russell, Deal & Joslyn, of Charleston, for respondents.

BLAIR, C.

This is an action in ejectment for section 9, township 24, range 15, New Madrid county. The petition is in the usual form. On a previous appeal, judgment for defendant, rendered by the circuit court of Bollinger county after sustaining a demurrer to plaintiffs' evidence, was reversed, and the cause remanded. 238 Mo. 598, 142 S. W. 291. Thereafter, by agreement, the case was sent to the circuit court of Madison county, and at the September, 1912, term of that court defendant filed an amended answer consisting of a general denial and a count, wherein it is averred plaintiffs claim, by mesne conveyances, under James V. Conran and William L. Stacey, who purchased at a sheriff's sale under an execution issued on a judgment against defendant and in favor of one Depoyster, but which execution, so it is averred, had been returned previously, was no longer in force and effect, and the sale was (therefore) null and void. In still another count in the answer it is averred that defendant owned sections 5 and 9, township 24, range 15, in New Madrid county, and had and was operating a sawmill thereon; that in 1900 he was called to Michigan by the illness of his wife, and, being detained there, wrote James V. Conran, an attorney at law living at New Madrid, requesting him to look after his (defendant's) interests; that during this absence of defendant the sheriff of New Madrid county undertook to sell the land mentioned, and it was stricken off and sold to James V. Conran; that defendant had no knowledge of the pendency of any action against him by Depoyster until his return from Michigan; that he was fully able to pay the judgment rendered and had personalty on the land sufficient to satisfy that judgment; that if it be held the sale was valid, as against other objections, yet Conran, by reason of the facts stated, took title as trustee and could convey no better title than he had, and plaintiffs, claiming under Conran by mesne conveyances, took no better title than Conran acquired at the sale. The prayer of this count is that, if the court shall determine that the sheriff's sale was valid, then that it be decreed Conran and Stacey, to whom the sheriff's deed was executed, took title as trustees, and that defendant's title forever be quieted and for general relief.

In the case of Butler v. Imhoff, 238 Mo. 584, 142 S. W. 287, the facts stated are those of this record in so far as they relate to the issues except those raised by the last count of the answer as above set out, except that the record now shows that on September 26, 1900, at the September, 1900, term of the New Madrid circuit court, Judge Riley wrote on the execution docket under the head "Remarks" and opposite the entry, "J. D. Deupester v. Jacob Imhoff," the words "26 Sept. 1900. Unsatisfied."

The facts in the record pertinent to the issue raised by the last count in the answer are that James V. Conran died some time after the first trial and before the trial which resulted in the judgment from which this appeal is taken. The answer upon which the case was first tried consisted solely of a denial of "each and every averment" of the petition "or any knowledge or information thereof sufficient to form a belief" and prayer for judgment. James V. Conran testified at the first trial, but no question asked him related in the remotest way to any letter written him by defendant, nor does it appear there was, at that trial, any intimation of any kind that such a letter had been written.

Defendant testified that he had known Mr. Conran 13 or 14 years, and once during that time had employed him, but did not state the character of that employment; he testified that while in Michigan he wrote Mr. Conran in 1900, as averred in the answer, asking him "to look after his interests" "if anything came up" and advise him of it, though he then knew nothing of the Depoyster suit, he said, but thought some one "might try to steal his land." He says he mailed the letter addressed to Mr. Conran at New Madrid, but received no reply; that upon his return to Missouri in March or April, 1901, he heard the land had been sold and went to see Mr. Conran; that he then went to see Judge Stacey. Defendant testifies Judge Stacey told him he bought the land at Mr. Conran's suggestion, Mr. Conran saying that he couldn't buy it and for him (Stacey) to buy and they "would go partners in it." Defendant says he had three conversations with Stacey and two with Conran; to Stacey he says he offered to repay the amount of the bid and $500, but Stacey refused to accept the proposal. Defendant also testified that Rolwing and Moore, who bought from Conran and Stacey, before buying, visited him at his "office on section 9, New Madrid county" and asked him the facts regarding Conran and Stacey's purchase, and after he told them his story he says they declared they would not buy the land, saying to him "they are trying to steal the land from you; we won't look it over, we will go home." As a matter of fact Rolwing and Moore bought the land from Conran and Stacey very soon after their visit to section 9. Moore died some time before the last trial of the case.

Judge Stacey testified he saw the notice of sale, and told Mr. Conran he was thinking of buying the land; that Mr. Conran said he would like to buy in partnership with him, and Mr. Conran did buy at the sale for the two; that he had but one conversation with defendant and the substance of that was he told defendant, who complained his land was sold while he was absent, to see Mr. Conran. He positively denied that defendant told him he had written Mr. Conran, and denied that defendant offered to repay the bid and $500 and take the land, or made any offer at all.

Mr. Rolwing testified that, when he and Moore went to inspect the land with a view to buying it, defendant pointed out the boundaries and seemed out of humor with Mr. Conran, but said nothing about having written him but complained that his land had been sold under judgment, his sawmill had been sold under chattel mortgage, and his wife had died, and he was "in a bad shape every way; had been ruined." He testified defendant said further that he had never been satisfied there; that his wife would never stay there with him; that the land was "nothing but a swamp and he had cut all the...