Barnes v. Imhoff

• Decision Date: 03 January 1914
• Citation: 162 S.W. 152,254 Mo. 217
• Parties: HARRIET B. BARNES et al. v. JACOB IMHOFF, Appellant
• Court: Missouri Supreme Court

162 S.W. 152

254 Mo. 217

HARRIET B. BARNES et al. v. JACOB IMHOFF, Appellant

Supreme Court of Missouri, First Division

January 3, 1914

Appeal from Madison Circuit Court. -- Hon. Peter H. Huck, Judge.

Affirmed.

Wilson Cramer for appellant.

(1) On the 26th day of September the circuit court called its execution docket, a certified copy of page 15 of which showing the issuing of an execution in the case of Depoyster v. Imhoff, was introduced by defendant, and the following notation was made by the judge with reference to this execution: "26 Sept., 1900, unsatisfied." This was made, of course, upon information given by the sheriff. By the statute, the court shall call over the execution docket "in order to see that proper returns have been made and entered," and "the return, if any," shall be entered on the execution docket. The statute uses the past tense "have been made and entered." The officer whose duty it was to make return, when called upon by the court in order to see that proper return had been made and entered, does not report that he had levied upon land and that the sale was suspended, but informs the court that the execution remained unsatisfied. (2) The execution was thereafter functus officio and the sheriff had no authority to do any further act thereunder. (3) It is not competent to prove the contents of a lost execution by parol. When returned, the execution becomes a part of the judgment roll. While, ordinarily, the contents of a lost document may be shown by parol, the rule has been changed by statute as to some classes of documents, among them executions, and such evidence is not competent to prove their contents. They must be supplied by legal proceedings, as provided by Secs. 4560 and 4561, R. S. 1899. The statute is without purpose, unless it is held to require more solemnity and care in the proof of the contents of the records and papers of which it speaks, and to deny the right to prove them by parol as in the case of other documents. Becker v. Denser, 169 Mo. 165; Campbell v. Greer, 197 Mo. 465; State v. Wilson, 200 Mo. 23; George v. Middough, 62 Mo. 591. (4) Having received Imhoff's letter, Conran, the attorney, while perhaps not bound to act affirmatively for him, could not legally do anything contrary to his interests without notice to him, and, when he purchased at the execution sale, took whatever title he obtained as trustee for Imhoff. Stacy, his partner in the transaction, stands in no better position. Aultman, Miller & Co. v. Loring, 76 Mo.App. 66; Bucher v. Hohl, 199 Mo. 324; Guinan v. Donnell, 201 Mo. 173. This is not a secret trust created by the act of parties, but one flowing by operation of law from the theoretically high position occupied by one who was licensed to practice the profession of law.

Russell, Deal & Joslyn for respondents.

(1) It is true that on the 26th day of September, 1900, Judge Riley made a notation on the execution docket, that the execution under which the land in controversy was afterwards sold was at that time unsatisfied. This was literally true, and had it not been for the mistake of the printer in getting one section of the land in the wrong range, it would have been satisfied at that time. The testimony of Mr. Conran, taken at the former trial, shows that the sheriff had levied upon the land before the first day of the September term, 1900, of the circuit court. He says: "I was shown the publication, shown the execution and he had levied the same prior to the date of the sale, in proper time and upon the proper land, and the printer had made a mistake in the description of one part of it, as I remember, and the land was incumbered, and for that reason, that the misdescription had been made on a portion of it, the sale was not had in September. This is my recollection of it." (2) Parol evidence is admissible to prove the contents of a lost instrument. Davis v. Montgomery, 205 Mo. 271; Farry v. Walser, 57 Mo. 169; Foulk v. Colburn, 48 Mo. 225; Land & M. Co. v. Land & C. Co., 187 Mo. 420; Griffin v. Franklin, 224 Mo. 683.

BLAIR, C. Brown, C., concurs.

OPINION

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. 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 under took 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 sometime 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 thirteen or fourteen 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 sometime 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...